TZIFIL REALTY CORP v. Felipe Orner, Esq., Nonparty-Appellant. (2020)

ORDERED that, on the court's own motion, the notice of appeal from the order dated June 27, 2018 is deemed to be a notice of appeal by landlord and by nonparty Felipe Orner, Esq., as principal and attorney for landlord (see CPLR 2001; Matter of Tagliaferrri v. Weiler, 1 NY3d 605 [2004]); and it is further,

ORDERED that the order dated June 27, 2018 is reversed, without costs, and tenant's motion to hold landlord and landlord's attorney, Felipe Orner, Esq., in civil and criminal contempt is dismissed; and it is further,

ORDERED that the appeal from the order dated September 7, 2018 is dismissed on the ground, among others, that that appeal is rendered moot by this court's determination of the appeal from the June 27, 2018 order.

After landlord had evicted tenant upon her failure to answer the petition in this nonpayment proceeding, tenant sought to be restored to possession. The Civil Court granted tenant's motion to the extent of allowing tenant's restoration forthwith upon a payment of all arrears and fees and included the interim relief of supervised access to the apartment to, among other things, obtain medication. Thereafter, tenant moved, by order to show cause, to hold landlord and Felipe Orner, Esq., landlord's principal and attorney, in civil and criminal contempt, alleging that they had failed to provide interim access and, subsequently, upon an offer to tender all arrears, had failed to promptly restore tenant to possession. The court ordered that the order to show cause be personally served by May 21, 2018. The affidavit of service for the contempt motion states that, after having made three attempts at personal service, tenant's attorney had mailed a copy of the motion on May 21, 2018 and affixed a copy to Orner's door on May 22, 2018. Landlord sent the court a letter and orally asserted that service had not been properly made and that the court did not have jurisdiction to determine the motion. At oral argument, tenant's attorney admitted that the motion was not properly served and offered to re-serve it. In an order dated June 27, 2018, the Civil Court (Remy Smith, J.) granted tenant's motion to the extent of holding landlord and Orner in civil contempt, and setting the matter down for a hearing on the branch of the motion seeking criminal contempt and on the issue of damages for civil contempt. The court found that the order to show cause had been properly served by conspicuous-place service pursuant to CPLR 308, but did not address the late service.

Landlord subsequently moved for leave to renew and reargue its opposition to tenant's contempt motion, and, in the alternative, for Judge Remy Smith to recuse herself and for leave to conduct discovery pertaining to the contempt hearing. In an order dated September 7, 2018, the Civil Court (Remy Smith, J.) denied landlord's motion.

"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of Hennessey v. DiCarlo, 21 AD3d 505, 505 [2005]; see Codrington v. Citimortgage, Inc., 118 AD3d 843 [2014]; Matter of Theodore T. [Charles T.], 78 AD3d 955 [2010]; Matter of El Greco Socy. of Visual Arts, Inc. v. Diamantidis, 47 AD3d 929 [2008]). Further, "where the court orders service by a particular date, all components of service must be accomplished by that date" (Matter of El Greco Socy. of Visual Arts, Inc., 47 AD3d at 929; see Matter of Sorli v. Conveney, 51 NY2d 713 [1980]). However, a mere "technical infirmity" in service may be overlooked and the court will have jurisdiction to determine the motion (Ruffin v. Lion Corp., 15 NY3d 578, 582 [2010]; Young v. City of New York, 164 AD3d 711 [2018]).

Even assuming that service pursuant to CPLR 308 (4) was proper for a criminal contempt motion against a nonparty (see Caiola v. Allcity Ins. Co., 305 AD2d 350 [2003]; Rothkopf v. Rothkopf, 191 AD2d 685, 686 [1993]; Long Is. Trust Co. v. Rosenberg, 82 AD2d 591 [1981]), tenant admits that a portion of the service, the affixation on Orner's door, was not done until May 22, 2018 and that tenant had mailed a copy before the affixation. Further, tenant failed to move pursuant to CPLR 306-b or to otherwise seek an extension of time for which to serve the contempt order to show cause (see Matter of Jordan v. City of New York, 38 AD3d 336 [2007]). As the deficiencies in service were not merely technical, and as service of the motion is jurisdictional and must be strictly complied with, the Civil Court did not have jurisdiction to determine the contempt motion and the motion should have been dismissed. In view of the foregoing, the appeal from the order dated September 7, 2018 is dismissed for the reason, among others, that it is moot.

Accordingly, the order dated June 27, 2018 is reversed and tenant's motion to hold landlord and landlord's attorney, Felipe Orner, Esq., in civil and criminal contempt is dismissed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.