Civil Court of the City of New York, Bronx County, May 17, 2022

Bronx Legal Services (Fernando Mancias-Steinmann of counsel) for Revel Gonzalez, respondent.

Todd Rothenberg (Boris Lepikh of counsel) for petitioner.

The decision/order in this motion is as follows:

Relevant Facts and Procedural Posture

In this summary holdover proceeding, petitioner obtained October 13, 2021, as the return date on the petition. It is undisputed that the affidavit of service for the notice of petition, which has been served by conspicuous place service on September 30, 2021, was filed on October 18, 2021.

Respondent now moves for dismissal for petitioner's late completion of service of process. Petitioner cross-moves for an order deeming the affidavit timely filed.

The Law and its Application

Under RPAPL 733, in a holdover proceeding, the notice of petition and petition must be served at least 10 days and not more than 17 days before the return date. And, pursuant to RPAPL 735 (2), service of the notice of petition and petition, when effected by conspicuous place service, is not complete until proof of service is filed with the court (see Siedlecki v Doscher, 33 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 170 E. 77th 1 LLC v Berenson, 12 Misc 3d 1017, 1022 [Civ Ct, NY County 2006]).

Here, service was completed, with filing of the affidavit of service, some five days after the return date.

Respondent moves for dismissal based on this noncompliance, citing to Riverside Syndicate, Inc. v Saltzman (49 AD3d 402 [1st Dept 2008]). In Saltzman, there was a one-day delay in filing proof of service of the petition. After dismissal in the Housing Court, the Appellate Term reversed noting the "absence of any discernible prejudice." (See 15 Misc 3d 138[A], 2007 NY Slip Op 50925[U], *1 [App Term, 1st Dept 2007].) Nevertheless, the Appellate Division, adhering to the "strict compliance" line of cases (see Berkeley Assoc. Co. v Di Nolfi, 122 AD2d 703, 705 [1st Dept 1986]; MSG Pomp Corp. v Doe, 185 AD2d 798, 800 [1st Dept 1992]), reversed the Appellate Term.

In response, petitioner urges this court to adopt what some term the more "modern view" and not exalt form over substance.{**75 Misc 3d at 755} Petitioner further argues that the affidavit of service was properly filed pursuant to the New York City Civil Court Act.

Petitioner's argument has merit. Respondent does not allege that he has been prejudiced by the late filing. Furthermore, it has become commonplace that non-prejudicial defects in summary proceedings, whether procedural or substantive, are either overlooked or amendment allowed (see CPLR 305 [c] [affidavit of service can be amended]; see also Hablin Realty Corp. v McCain, 123 Misc 2d 777, 778 [App Term, 1st Dept 1984] [verification error correctable at any stage of the proceeding]; Sassouni v Mary's Dairy First Ave., Inc., 11 Misc 3d 1073[A], 2006 NY Slip Op 50540[U] [Civ Ct, NY County, 2006] [petitioner's name is amendable], citing Jackson v New York City Hous. Auth., 88 Misc 2d 121, 122 [App Term, 1st Dept 1976] ["A petition in a summary proceeding is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment"]; 601 W. Realty, LLC v Mao Chu Zheng, 54 Misc 3d 145[A], 2017 NY Slip Op 50257[U] [App Term, 1st Dept 2017] [certain misstatements of address amendable]; OLR ECW, L.P. v Myers, 59 Misc 3d 650 [Civ Ct, Bronx County 2018] [regulatory status may be amendable]).

On this exact issue (late filing of the affidavit of service), the Appellate Term, Second Department has long held it is a non-prejudicial error (see Friedlander v Ramos, 3 Misc 3d 33, 34-35 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]).

Of course, the Appellate Division in Saltzman was aware of Friedlander (as the Appellate Term had cited to it) when it reversed and granted dismissal. It was also aware of the CCA provisions cited in Friedlander and cited by petitioner here.

While the Appellate Term, Second Department may now take a different view on this exact issue, this court sits in the First Department and must follow binding authority. Saltzman is such binding authority. Indeed, it appears to still be binding authority statewide (see Abakporo v Gardner, 22 Misc 3d 1101[A], 2008 NY Slip Op 52574[U], *2 [Civ Ct, Kings County 2008] ["this court is bound by the precedent set forth by the First Department in Riverside Syndicate . . . which is the only decision on this issue which was made by any court of statewide [*2]jurisdiction"], citing Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984] ["(T)he doctrine of stare decisis {**75 Misc 3d at 756}requires trial courts in this department to follow precedents set by the Appellate Division of another department" until the Court of Appeals or the same Division announces a contrary rule]; see also D'Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014]).^[FN*]

As such, petitioner's cross motion is denied, and respondent's motion seeking dismissal is granted. Judgment shall enter in the respondent's favor.