Landlord sued to evict rent-stabilized tenant for owner-occupancy purposes. Tenant asked the court to dismiss the case because landlord’s notice of petition and petition weren't filed at least five days before the initial court date for the proceeding. Landlord obtained an index number on July 1, 2009, and served one of the tenants by personal delivery on July 13, and upon the cotenant by “nail and mail” delivery on July 14. Landlord filed its proof of service on July 17, and the first court date was July 21. Tenant argued that landlord failed to complete timely service of his court papers. The court ruled for tenant and dismissed the case.
Landlord appealed and won. Real Property Actions and Proceedings Law Section 735(2) requires that the court papers, together with proof of delivery, be filed within three days after the mailing to tenant when service isn’t made by personal delivery. Service is considered complete upon the filing of proof of service. The fact that landlord’s proof of service of the court papers was filed four days before the court date rather than five didn’t harm tenant and wasn’t a defect that denied the court jurisdiction over the case. The case was reopened.
Siedlecki v. Doscher: NYLJ, 8/18/11, p. 26, col. 3 (App. T. 2 Dept.; Weston, JP, Golia, Rios, JJ)
