Proof of Delivery of Holdover Petition Filed Late

December 1, 2007

LVT Number: #20025

Landlord sued to evict rent-stabilized tenant so she could recover the apartment for her son's use. Tenant asked the court to dismiss the case. The law required landlord to deliver copies of the affidavit of service of the court petition to tenant between five and 12 days before the initial court date. But the proof of delivery of the petition was filed less than five days before the court date. Landlord argued that this was a clerical error and that the court should allow the late filing. The court ruled for tenant and dismissed the case.

Landlord sued to evict rent-stabilized tenant so she could recover the apartment for her son's use. Tenant asked the court to dismiss the case. The law required landlord to deliver copies of the affidavit of service of the court petition to tenant between five and 12 days before the initial court date. But the proof of delivery of the petition was filed less than five days before the court date. Landlord argued that this was a clerical error and that the court should allow the late filing. The court ruled for tenant and dismissed the case. Landlord's late filing violated Real Property Actions and Proceedings Law Section 733(1). Civil Court Act Section 411 didn't allow landlord to cure this defect. Timely filing was an important part of due process. This wasn't a minor defect.

Zajaczkowska v. Zeranska: NYLJ, 11/7/07, p. 28, col. 1 (Civ. Ct. Kings; Scheckowitz, J)

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