TORRES v. SEDGWICK AVENUE DIGNITY DEVELOPERS LLC MHR (2022)

On or about April 22, 2021, this court issued an order directing the respondents to correct open violations [placed by DHPD] in petitioner's apartment within specified time frames.

Petitioner now moves, pursuant to the Judiciary Law, for an order holding the respondents in civil contempt for their failure to comply with the April 22, 2021 order.

Relevant here is the fact that the “proposed” order to show cause was uploaded by petitioner to the New York State Courts Electronic Filing system (NYSCEF) on October 7, 2021, and the version signed by the court uploaded by the court on October 15, 2021. The order to show cause requires service of the motion “and the papers annexed thereto” on (1) the individually named respondents by overnight mail or personal delivery and (2) on respondents’ counsel by upload to NYSCEF.

Among other things, respondents’ opposition challenges service of the contempt motion. They claim that service upon counsel was not accomplished, as directed, after the order to show cause was signed. They further argue that the underlying civil contempt motion must be served personally upon the respondents.

Petitioner argues in reply that service upon the named respondents was proper and attaches mailing receipts as proof. Petitioner, citing to 22 NYCRR § 202.5-b(f)(2)(ii), further argue that the court's upload of the signed order to show cause is sufficient service upon respondents.

Petitioner's motion is denied for the reasons stated herein.

§ 761 of the Judiciary Law states, “An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge.”

As such, respondents’ argument that personal service is required on these represented alleged contemnors is without merit. (see Long Island Trust Co. v. Rosenberg, 82 A.D.2d 591, 596-597, 442 N.Y.S.2d 563 [2nd Dept. 1981]).

However, it is necessary that service, as ordered by the court, by strictly complied with. (see European American Bank v. Legum, 248 A.D.2d 206, 207, 669 N.Y.S.2d 595 [1st Dept. 1998]; see Tzifil Realty Corp. v. Rodriguez, 67 Misc. 3d 134(A), 2, 2020 WL 2120846 [App. Term, 2nd Dept. 2020]; Zambelli v. Dillon, 242 A.D.2d 353, 661 N.Y.S.2d 268 [2nd Dept. 1997]; Gonzalez v. Haniff, 144 A.D.3d 1087, 1088, 43 N.Y.S.3d 375 [2nd Dept. 2016] ([T]he mode of service provided for in [an] order to show cause is jurisdictional in nature and must be literally followed).

Petitioner was required to serve respondents’ counsel by “filing” on NYSCEF.

Petitioner never filed a complete order to show cause with supporting papers on NYSCEF after the court signed his application, even assuming that this type of motion is deemed served upon the court's upload. The court only uploaded the three (3) page order to show cause. The court did not upload the supporting papers.

CPLR § 2214(b) requires notices of motions and supporting papers be served and Uniform Rule section 202.8(c) requires the moving party to “serve copies of all affidavits and briefs upon all other parties at the time of service of the notice of motion.” [emphasis added]. Consequently, a movant must serve the notice of motion [here the order to show cause] together with the supporting papers.¹ (see Sutherland v. Glennon, 157 Misc. 2d 547, 549, 598 N.Y.S.2d 141 [Sup. Ct., Hamilton County 1993]; see also, Rosenman Colin Freund Lewis & Cohen v. Edelman, 165 A.D.2d 533, 536, 568 N.Y.S.2d 590 [1st Dept. 1991] (motion practice requires “the moving party to set forth whatever it is he has to say in papers accompanying the notice of motion”)). Nothing in 22 NYCRR § 202.5-b(f)(2)(ii) relieves movant of this responsibility.

In other words, the moving party cannot take a piecemeal approach to service of a motion and its supporting papers. Here, petitioner uploaded the supporting papers, but never uploaded the signed order to show cause. (see Way v. Goord, 15 A.D.3d 741, 742, 790 N.Y.S.2d 248 [3rd Dept. 2005] (an unexecuted order to show cause has no legal effect)). As such, the requirement that “service of this Order and the papers annexed hereto” upon respondents’ attorneys was not met.²

The court must give effect to its own service requirement. To hold otherwise would render the service requirement stated in the order to show cause meaningless.

Based on the foregoing, the motion for contempt is denied for improper service. As such, the court does not reach its merits.

FOOTNOTES

1.   Indeed, the language petitioner included in the order to show cause states that “service of this Order and the papers annexed thereto shall be made”

2.   The full papers were apparently emailed to respondents’ counsel on or about October 20, 2021. This does not cure the service defect. (see e.g., European American Bank v. Legum, 248 A.D.2d at 207, 669 N.Y.S.2d 595).

Shorab Ibrahim, J.