District Court of Suffolk County, Fourth District

Decided on May 13, 2025

Index No. LT-28-25/SM

Paul L. Damato, J.

[*1]

After having taken testimony and documentary evidence submitted at the trial for this Non-Payment Proceeding wherein Petitioner seeks a money judgement, a judgement of possession and a warrant of eviction without a stay, and deliberating on the facts and applicable law, for the reasons set forth below, the Court finds that the case was inappropriately filed in Smithtown's Fourth District Court and hereby transfer the case to Islip's Fifth District Court.

Procedural History, Testimony, and Evidence

The Petitioner filed the subject non-payment summary proceeding on behalf of the landlord, Krinsky-Say Ventures, LLC, for property located at 1745 Expressway Drive North, Hauppauge, New York 11788, to collect delinquent rent, evict the subject tenant, Matt Guiliano's Play Like A Pro LLC DBA Open State Works DBA Gotham, and XYZ Corp, and regain possession. During trial the Petitioner offered into evidence an Islip Town tax bill in connection with a tax escalation payment deemed additional rent under the lease. The Court, sua sponte, raised the issue of the location of the property in Islip Township while the filing was brought in Smithtown's Fourth District Court. Petitioner's counsel then averred that the issue raised by the [*2]Court is one of venue and not jurisdiction.

Law and Decision

Both the Real Property Actions and Proceedings Law (hereinafter referred to as "RPAPL") and the Uniform District Court Act (hereinafter referred to as "UDCA") address the issue as to where proceedings should be filed, though there is some ambiguity as to whether or not the question is one of "jurisdiction" or "venue." RPAPL Section 701 Subdivision 1, entitled "Jurisdiction; courts; venue," defines district court as the court in which a special proceeding shall be commenced. Subdivision 2 expounds upon the district court requirement by stating that "the trial of the proceeding shall be within the jurisdictional area of the court in which the real property or a portion thereof is situated . . . ." Similarly, the Uniform District Court Act, redundant of RPAPL, also requires a summary proceeding be brought in district court in the particular court in which the property is located. UDCA Section 303, entitled "Summary proceedings; venue" states that a "summary proceeding to recover possession of real property or to remove tenants therefrom shall be brought in the district in which such property or a part thereof is situated." Both statutes require a summary proceeding be brought in district court in the particular district in which the property is located. However, RPAPL captions its statute with both the terms venue and jurisdiction while the UDCA uses the term venue, the difference being that a jurisdictional defect will require dismissal while a venue defect could allow for transfer of the existing proceeding.

Given that the subject proceeding belongs in Islip and not Smithtown, this court can not proceed with a decision on the merits, though the question still remains as to whether the Court should dismiss the case or can, sua sponte, change venue. UDCA Section 306 states that the "bringing of an action or proceeding in the wrong district in the county shall not be deemed a jurisdictional defect" and that "the court may of its own motion, and must on the motion of a party defendant, transfer the action or proceeding to a proper district . . . ." Curiously, this section notes "an action or proceeding" brought in the wrong court but does not specifically include a "summary proceeding." Likewise, this provision references a request by a defendant, while the parties to a landlord and tenant summary proceeding are petitioner and respondent, leaving ambiguity as to whether the statue was not drafted with sufficient specificity or otherwise intended to exclude cases and parties such as those at bar.

The Court finds the defect at issue to be one of venue and that the parties and proceeding at bar qualify for transfer under the statute due to a mistake of venue. With regard to the jurisdiction issue, Rasch's Landlord & Tenant, including Summary Proceedings (5th Red.) Section 40:9, entitled "Venue," references both NYC Civil Court and District Court, quotes RPAPL Subdivision 2 and concludes that "[u]nder this provision, the location of the property merely determines venue, or the place of trial." Thereafter, Rasch paraphrases UDCA Section 306, with citation to that provision, and states "a summary proceeding must be brought in the district in which the property or a part thereof is situated," concluding that a filing in the wrong district "shall not be deemed a jurisdictional defect . . . ." See Brocon Realty Co. V. Massapequa Pizza, Inc., 42 Misc 2d 742, 248 N.Y.S.2d 843 (Dist. Ct. 1964) stating that venue is not jurisdictional under UDCA Section 306). Moreover, with regard to venue transfer, Rasch Section 40:10 interprets UDCA Section 306, regarding the bringing of "actions and proceedings," to include summary proceedings saying that "summary proceedings brought in the wrong county, or in the wrong district in the county" may be transferred by the court's own motion to the appropriate venue. Based on the foregoing it is hereby:

ORDERED that the subject proceeding is transferred from Smithtown's Fourth District Court to Islip's Fifth District Court.

SO ORDERED

Dated: May 13, 2025

Hon. Paul L. Damato, JDC