Civil Court of the City of New York, Bronx County, February 18, 2022

TakeRoot Justice (Rajiv Jaswa and Allen Joslyn of counsel) for petitioner.

Rosenblum & Bianco, LLP (Tracy Boshart of counsel) for Sedgwick Avenue Dignity Developers LLC and others, respondents.

On or about April 22, 2021, this court issued an order (2021 NY Slip Op 33000[U] [Civ Ct, Bronx County 2021]) directing the respondents to correct open violations (placed by the New York City Department of Housing Preservation & Development) 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) 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 argues that the court's upload of the signed order to show cause is sufficient service upon [*2]respondents.

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

Section 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 Is. Trust Co. v Rosenberg, 82 AD2d 591, 596-597 [2d Dept 1981].){**74 Misc 3d at 841}

However, it is necessary that service, as ordered by the court, be strictly complied with. (See European Am. Bank v Legum, 248 AD2d 206, 207 [1st Dept 1998]; see Tzifil Realty Corp. v Rodriguez, 67 Misc 3d 134[A], 2020 NY Slip Op 50498[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Matter of Zambelli v Dillon, 242 AD2d 353 [2d Dept 1997]; Gonzalez v Haniff, 144 AD3d 1087, 1088 [2d 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 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 Rules for Trial Courts (22 NYCRR) § 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.^[FN1] (See Matter of Sutherland v Glennon, 157 Misc 2d 547, 549 [Sup Ct, Hamilton County 1993]; see also Rosenman Colin Freund Lewis & Cohen v Edelman, 165 AD2d 533, 536 [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 Matter of Way v Goord, 15 AD3d 741, 742 [3d Dept 2005] [an unexecuted order to show cause has no legal effect].) As such, the requirement{**74 Misc 3d at 842} that "service of this Order and the papers annexed hereto" upon respondents' attorneys was not met.^[FN2]

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.