Laura Colon, Petitioner(s) v. Daisy Alvarenga; "John" "Doe"; "Jane" "Doe", Respondent(s) (2026)

NYSCEF Doc No. 1-17

In this licensee holdover proceeding, Respondent has filed a pre-answer Notice of Motion seeking dismissal. The motion is premised on RPAPL Sections 735 and 733.

The assigned court date on this matter was November 17, 2025. Pursuant to RPAPL Section 733(1), service of the petition and notice of petition shall be at least ten (10) days and not more than seventeen (17) days before the time that the petition is noticed to be heard. Here, the Affidavit of Service provides that service was attempted between July 21 and July 23, 2025, which is outside the statutory timeframe. An additional Affidavit of Service provides that service was attempted after the assigned court date.

In opposition, Petitioner's contention is that the Second Department does not require strict compliance, however, this applies only to the late filing of an affidavit of service, not to the actual time of service required by Section 733(1). Petitioner correctly notes that Riverside Syndicate Inc. Saltzman, 49 AD3d 402 [1st Dept 2008], is not followed in the Second Department. The Appellate Term for the Second Department has held that late filing of proof of service is not jurisdictional in nature and that jurisdiction attaches upon delivery of the papers. See, Siedleki v. Doscher, 33 Misc 3d 18, 20 [App. Term 2nd Dept. 2011]. The requirement that service be made within the statutory window period applies in both Departments.

The delivery of the papers must occur within the statutory timeframe, and that is not the case here. Only the untimely filing of proof of service is treated as a non-prejudicial error in the Second Department. Cf., Omura v. Omura 2026 NY Slip Op 32147 (U)[Civ Ct NY Co. 2026].

Accordingly, Respondent's Notice of Motion is granted, and the proceeding is dismissed without prejudice.

This decision/order will be filed to NYSCEF.

This constitutes the decision/order of the court.

Date: August 14, 2026

Hon. Enedina Pilar Sanchez

Housing Court Judge

Enedina Pilar Sanchez, J.