Petitioner commenced this proceeding by order to show cause seeking an order directing respondents to comply with the petitioner's Order to Repair/Vacate Order issued on July 4, 2004. Respondents submitted a pre-answer motion requesting that the proceeding be dismissed for lack of jurisdiction as to Franklin Global Realty LLC and Jacob Zimmerman, dismissing this proceeding based petitioner's failure to demonstrate the need for service pursuant to CPLR§308(5), and extending respondents' time to answer to five days after the decision on this motion. Petitioner cross moved for an order deeming the affidavits of service filed nunc pro tunc.

Respondent, Jacob Zimmerman contends he received a copy of the petition in the mail which did not show the signature that is on the original in the court file, and this was therefore not a true copy of the original petition. Further, Mr. Zimmerman alleges that, he was at home on May 1, 2, 2007 at the times stated on the affidavit of service that the process server attempted service. In his affirmation, Mr. Zimmerman states he is certain that he was at home, with his wife and children, at the times alleged in the affidavit of service, and no one knocked on the door. In addition, Mr. Zimmerman claims no copy of the order to show cause and petition were affixed to his door as stated in the affidavit of service. Therefore, respondent asserts service was improper, and this court lacks jurisdiction because he was improperly served.

In his affirmation in support, respondent Abraham Leiber states that the copy of the petition he received in the courthouse also lacked a signature. Mr. Leiber also contends that he never received service of papers for Franklin Global Realty LLC, and no affidavit of service attesting to service on the LLC was filed.

Respondents also argue that service on respondents, Lieber, Schwartz and Zimmerman was not [*2]completed by May 9, 2007 as required by the order to show cause because the affidavits of service were filed on May 15, 2007, and because personal service was not effected, service is not complete until ten days later.

In addition, respondents claim that petitioner failed to make the requisite showing for allowing service pursuant to CPLR§308(5), thereby compromising their due process rights.

Petitioner opposed respondents' request to dismiss the petition against Franklin Global Realty and Jacob Zimmerman. First, petitioner asserts Franklin Global Realty LLC was served by service on the Secretary of State pursuant to CPLR§311-a. Petitioner also contends that Mr. Zimmerman's affirmation lacks detail, and is insufficient to warrant a traverse hearing. Petitioner also submitted a copy of the unsigned affirmation by Mr. Zimmerman which was included with the papers served on petitioner. With regard to respondents' claims that they were not served with true copies of the petition, petitioner contends that the signature on the verification did not copy as well as it should, and this defect was de minimis.

The basis for respondents' argument that service was ordered or made pursuant to CPLR§308(5) is unclear. It appears that respondents equate service in the courthouse ^[FN1] with service pursuant to CPLR§308(5). However, there is no limitation on where personal service can be effected under CPLR §308(1). Moreover, respondents provide no authority for immunity from service in the courthouse. The doctrine of courthouse sanctuary has been applied with residents of foreign states who enter the courthouse to contest jurisdiction ( see North Fork Bank v. Grover, 3 Misc 3d 341[2004]). Respondents make no claims of residence outside the state or even outside New York City. CPLR§308(5) is simply inapplicable to the facts of this case, and respondents' argument on this issue is without merit.

The court notes that the signature on the verification of the petition is very light, and petitioner's explanation that the copies may not have reproduced the signatures well is extremely plausible and likely. The original motion papers filed by respondents do contain a fully executed affirmation completed by Mr. Zimmerman, and his sworn denial of the allegations in the affidavit of service raises questions as to whether service was properly effected pursuant to CPLR§308 (4),( see Elm Mgmt. Corp.v. Sprung, 33 AD3d 753,[2nd Dept. 2006] ). Respondent admits receipt of the mailing. However, service pursuant to CPLR§308(4) may only be made if due diligence is used to effect service under CPLR§308 (1) & (2) without success, Lemberger v. Khan, 18 AD3d 447(2nd Dept. 2005). [*3]

During oral argument, respondents' counsel brought to light the fact that there was no affidavit of service on Franklin Global Realty in the file. Petitioner's counsel contended that the affidavit was indeed filed, and her copy with the court stamp was proof of her claim. Upon submission of the motions, the court requested a search for the affidavits, and the original affidavits, which were misfiled, were then located. The court apologizes to counsel in this matter for the inconvenience caused by the court's error.

The affidavit of service on Franklin Global Realty LLC states that service was made on this entity on May 7, 2007 by serving the Secretary of State. This is proper service under CPLR§311-a, the Secretary of State is a designated agent pursuant Limited Liability Law§301(b), and Limited Liability Law§303(a) also provides that service is complete upon service of the Secretary of State.

Respondents' argument that pursuant to CPLR §308(4) service was incomplete until May 25, 2007, ten days after petitioner's affidavits of service were filed on May 15, 2007 is incorrect. The New York City Civil Court Act applies to an action commenced in this court ^[FN2], and NYCCA §400(2) provides that jurisdiction is acquired upon service; pursuant to NYCCA§409, affidavits of service must be filed within fourteen days of service, and service is complete upon filing pursuant to NYCCA §410(b). However, this is not an action. It is a special proceeding, brought on by order to show cause. CPLR§403(b) sets forth the applicable time frames for responsive pleadings in special proceedings commenced by notice of petition and petition. The instant proceeding was commenced by order to show cause which directed petitioner to serve respondents on or before May 9, 2007, but it did not provide time for service of an answer. Therefore, it is now within the discretion of this court to determine when respondents' answer is to be served.

Petitioner's cross motion seeks to have the affidavits deemed filed nunc pro tunc. However, it is unclear to what date petitioner seeks to have the filing made retroactive.

Based on the foregoing, respondents' motion is granted only to the extent of setting the matter down for a traverse hearing on service upon Jacob Zimmerman on October 1, 2007 at 2:30pm. All other respondents are granted leave to serve and file an answer on or before September 25, 2007. Petitioner's cross motion is denied without prejudice.

This constitutes the decision and order of this court.

Dated: September 17, 2007

_________________________

Cheryl J. Gonzales, JHC