Landlord Filed Proof of Service One Day Late

Landlord sued to evict tenant. Tenant asked the court to dismiss the case. He claimed that landlord's notice of petition wasn't filed with the court within three days of mailing, as required by Real Property and Proceedings Law (RPAPL) Section 735(2). Tenant also claimed that landlord didn't complete service of the court papers by filing proof of service at least five days before the first court date, as required by RPAPL Section 733(1). The court ruled against tenant. Landlord's filing met the requirements of RPAPL Section 735(2), but fell one day short of the requirements of RPAPL Section 733(1). Landlord would have to complete all the physical acts of service within the first three days of the combined 12-day period under the two laws in order to ensure that filing was completed no later than five days before the court date. Since landlord was caught between two competing statutes, the court ruled that filing the proof of service one day short was a minor defect.

Djokic v. Perez: NYLJ, 12/30/08, p. 29, col. 1 (Civ. Ct. Kings; Heymann, J)