Process Server Can't Change Date on Notice of Petition

Landlord sued to evict tenant. Tenant claimed that landlord's amended notice of petition was improperly served. The court ruled for tenant and dismissed the case. On Aug. 11, 1997, the process server had served a notice of petition and petition on tenant. The notice called for a court appearance on Aug. 14, 1997. Seeing that service was less than five days before the scheduled court appearance and therefore defective, the process server crossed out the Aug. 14 date on the notice of petition and wrote Aug. 19, 1997, above it. He then re-served the notice of petition and petition on Aug. 13, 1997. This was improper. Only the clerk of the court can issue a notice of petition in an eviction case. Nothing in law or court rules permits amendment of an already-issued notice of petition. So landlord's first and second notices of petition were both defective.

790 Realty Corp. v. Biton: NYLJ, p. 26, col. 2 (10/8/97) (Civ. Ct. NY; Duckman, J)