| Matter of Czajka v Dellehunt |
| 2015 NY Slip Op 01514 [125 AD3d 1177] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Paul Czajka, as District Attorney ofColumbia County, Respondent-Appellant, v David A. Dellehunt, as Town Justice of theTown of Kinderhook and Village Justice of the Village of Kinderhook,Appellant-Respondent, et al., Respondent. |
Cooper Erving & Savage, LLP, Albany (David C. Rowley of counsel), forappellant-respondent.
Paul Czajka, District Attorney, Hudson, pro se, and Powers & Santola, LLP,Albany (Michael J. Hutter of counsel), for respondent-appellant.
Garry, J.P. Cross appeals from a judgment of the Supreme Court (Dowd, J.), enteredAugust 12, 2013 in Columbia County, which, in a combined proceeding pursuant toCPLR article 78 and action for declaratory judgment, granted a motion by respondentDavid A. Dellehunt to vacate a judgment entered against him and dismissed thepetition.
Petitioner is the District Attorney of Columbia County, and respondent David A.Dellehunt (hereinafter respondent) is the Town Justice of the Town of Kinderhook andthe Village Justice of the Village of Kinderhook. In June 2012, an Assistant DistrictAttorney asked respondent to provide petitioner's office with a copy of the electronicrecording of proceedings held in Kinderhook Village Court on June 4, 2012. Respondentpromptly denied this request, explaining that the procedure for obtaining a transcript wasto request that the Village Court [*2]forward therecording to a designated transcriptionist. Subsequently, an Assistant District Attorneymade a written request for respondent to transmit a recording of proceedings held onOctober 2, 2012 in Kinderhook Town Court to a transcriptionist; in this instance, therewas no request for a copy of the recording. Respondent requested that petitioner identifywhich of the 88 matters heard on that date he wished to have transcribed, and petitioneradvised that he was seeking transcriptions of all cases. The Clerk of the KinderhookTown and Village Courts then allegedly began reviewing the recording to identify whichcases could be transcribed in compliance with the Criminal Procedure Law.
In late December 2012, by order to show cause, petitioner commenced this combinedCPLR article 78 proceeding in the nature of mandamus to compel and declaratoryjudgment action against respondent in his capacity as Town Justice. The petition soughtan order directing respondent to transmit a recording of Town Court proceedings onOctober 2, 2012 to a transcriptionist, and to furnish petitioner with copies of suchrecordings and of "Town Court" proceedings on June 4, 2012.[FN1] The petition also sought a declarationthat respondent is not precluded by law from providing petitioner's office with copies ofrecordings of Town Court proceedings. Supreme Court (Doyle, J.) signed petitioner'sorder to show cause on Friday, December 21, 2012, directing service to be made by faxand overnight mail by 4:00 p.m. on the following Monday, December 24, 2012, uponrespondent in his capacity as Town Justice, the Clerk of the Town Court, and the attorneyfor the Town of Kinderhook. Opposing papers were required to be filed and faxed toSupreme Court by 4:00 p.m. on Thursday, December 26, 2012.
The record contains no proof of service. However, respondent acknowledges that theorder to show cause and petition were received by fax at the Town Court, with a coversheet addressed to respondent and the Clerk, at about 3:14 p.m. on December 21, 2012.At about 3:27 p.m., a fax was received at the Village Court, likewise directed torespondent and the Clerk. These papers—an order to show cause andpetition—differed from those that had been received at the Town Court in that thehandwritten word "Amended" had been added to the documents' titles and thehandwritten phrase "as Village Justice" had been added to respondent's designation in thecaptions. Respondent alleges that separate express mail packages containing the originaland amended documents were received at the Town Court on December 26, 2012 and anunspecified date, and at the Village Court on December 23 and 26, 2012.
Respondent requested an adjournment to permit him to obtain representation andprepare a response, and a representative of petitioner's office advised Supreme Court inwriting that petitioner consented to an adjournment.[FN2] The court denied this request and, atapproximately 5:00 p.m. on the return date of December 26, 2012, issued a writtendecision granting the petition and directing respondent to transmit a recording of theOctober 2, 2012 Town Court proceedings to a transcriptionist, and to provide petitionerwith copies of recordings of Town Court proceedings on June 4, 2012 and October 2,2012.
In January 2013, respondent moved by order to show cause to, among other things,vacate the judgment, dismiss the combined proceeding and action in its entirety, andimpose [*3]sanctions upon petitioner. Supreme Court(Devine, J.) signed the order to show cause and granted a temporary restraining orderenjoining petitioner from enforcing the judgment. In February 2013, Supreme Court(Dowd, J.) granted respondent's motion, vacated the judgment and dismissed thecombined action and proceeding based upon lack of personal jurisdiction. Petitioner andrespondent cross-appeal from this judgment.
We must briefly note that during the course of the proceedings, petitioner received atranscript of the October 2012 Town Court proceeding from a transcriptionist. A matterbecomes moot when "a change in circumstances prevents a court from rendering adecision that would effectively determine an actual controversy" (Matter ofDreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172[2002]; accord Matter ofKowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d 1475, 1477[2012]). Here, actual controversies remain as to petitioner's requests for recordings of theOctober 2012 and June 2012 proceedings, and as to respondent's request for sanctions.Further, petitioner alleges that the transcript he received is incomplete and does not fullysatisfy his request. Thus, the cross appeals are not moot, as "the rights of the parties willbe directly affected by [their] determination" (Matter of Hearst Corp. v Clyne, 50NY2d 707, 714 [1980]).
We find no merit in petitioner's challenge to the manner in which Supreme Court(Dowd, J.) was assigned by respondent Unified Court System (hereinafterUCS)[FN3] to hearand determine respondent's motion. The transfer of an action or proceeding, wherenecessary due to recusals or other issues, is governed by court rules (see 22NYCRR 202.3 [c] [5]). Upon review, we find nothing to demonstrate that the assignmenthere was improperly made, no indication that either the assignment or the court'ssubsequent determination of the motion was affected in any manner or degree by UCS'sstatus as an intervenor, and no suggestion of unfairness or bias (compare Mokay v Mokay, 111AD3d 1175, 1178 [2013]; Douglas v Douglas, 281 AD2d 709, 710-711[2001]).
Next, petitioner argues that Supreme Court erred in dismissing the petition for lackof personal jurisdiction. In so doing, the court treated the amended order to show causeand amended petition as the operative documents, and found that they were not served instrict compliance with the directions in the order to show cause, as there was no faxservice of the amended documents upon the Town Court and—in view of theabsence of proof of service and the late arrival of some of the express mailparcels—no showing that they were timely served by mail. Accordingly, the courtconcluded that service was defective.
On appeal, for the first time, petitioner claims that Supreme Court erred in basing itsdetermination upon the amended petition and amended order to show cause rather thanthe original documents, arguing that the amended documents are "nullit[ies]." Petitionerstates in his brief that after the original order to show cause and petition had been signedand filed, he served "what purported to be an amended petition" that had been alteredwithout court authorization to add the phrase "as Village Justice" to respondent'sdesignation in the caption. Petitioner states that "[t]his was done in the apparent beliefthat such capacity was necessary to get full relief."[FN4] Petitioner argues that the alteration hadthe effect of adding a party—that is, respondent in his capacity as VillageJustice—and that, as he did not obtain court leave to add a party (seeCPLR 401), the amended petition is a nullity. Thus, upon this appeal, petitioner nowcontends that the original petition is the operative document, and that Supreme Courterred in basing its decision upon the amended documents—despite the fact thatpetitioner had previously failed to advise the court or the other parties of theunauthorized amendments and, thus, had held out the altered order to show cause andpetition as the operative documents throughout the course of those priorproceedings.[FN5]Now, upon this appeal, arguing that he complied with the service directions in theoriginal unaltered documents, petitioner contends that the combined action andproceeding should not have been dismissed.
We agree with petitioner that the amended petition was rendered a nullity when itwas altered to add a new party without obtaining court leave as required by CPLR 401(see Matter of Barrett vDutchess County Legislature, 38 AD3d 651, 653 [2007]; Matter of Board ofEduc. of Fla. Union Free School Dist. v DePace, 301 AD2d 521, 522 [2003], lvdenied 99 NY2d 511 [2003]; Matter of Aries Striping v Hurley, 202 AD2d578, 578 [1994]). We do not, however, agree with petitioner's theory that theunauthorized alterations should work to his advantage by preventing dismissal of theoriginal petition. Setting aside for the moment the startling nature of the alterations andthe equally remarkable timing of this disclosure, petitioner has not demonstrated that hestrictly complied with the service provisions in the original order to show cause, whichwere identical to those in the altered version. Such provisions are jurisdictional in nature,and failure to comply with each specified requirement results in a lack of personaljurisdiction over a respondent (see Matter of Bruno v Ackerson, 39 NY2d 718,718-719 [1976]; U.S. BankN.A. v Feliciano, 103 AD3d 791, 791 [2013]; Matter of Sahler vCallahan, 92 AD2d 976, 977 [1983]; see also People ex rel. Holman v Cunningham, 73 AD3d1298, 1299 [2010]).
It was petitioner's burden to demonstrate that Supreme Court acquired personaljurisdiction over respondent (seeMatter of Theodore T. [Charles T.], 78 AD3d 955, 956 [2010]; Hopkins vTinghino, 248 AD2d 794, 795 [1998]), but he failed to submit affidavits of serviceor any other proof that would satisfy this burden. Although respondent hasacknowledged that the faxed documents were timely received at the Town Court, theabsence of proof of service makes it impossible to determine whether petitioner timelycomplied with the overnight mail requirements (see Matter of Rotanelli v Board of Elections of WestchesterCounty, 109 AD3d 562, 563 [2013]). Moreover, it is undisputed that no serviceof any kind was made on the attorney for the Town, despite the requirement for suchservice. We reject petitioner's argument that this failure should be excused because therecord reveals that the attorney for the Town was aware of the order to show cause andpetition. It is well established that actual notice received by other means does not resultin jurisdiction upon a failure of service (see Macchia v Russo, 67 NY2d 592, 595[1986]; Clarke v Smith, 98AD3d 756, 756 [2012]; Matter of Gerdts v State of [*4]New York, 210 AD2d 645, 646 [1994], lvdenied 85 NY2d 810 [1995], appeal dismissed 85 NY2d 856 [1995]).Further, we find no merit in petitioner's contention that he substantially complied withthe service requirements, as "[s]trict compliance with court-directed methods of service isnecessary in order for the court to obtain personal jurisdiction over a respondent" (Matter of Keith X. v KristinY., 124 AD3d 1056, 1057 [2015]; see Bruno v Ackerson, 39 NY2d at718). Petitioner's failure to comply with the service requirements in the order to showcause resulted in a failure to obtain personal jurisdiction over respondent. Accordingly,Supreme Court properly vacated the judgment and dismissed the combined action andproceeding.
Turning to respondent's appeal, he contends that sanctions should be imposed uponpetitioner for frivolous conduct and that petitioner should be directed to reimburserespondent's expenses and counsel fees. Courts are vested with discretion to impose costsand fees for frivolous conduct, and may also impose sanctions (see 22 NYCRR130-1.1). Conduct is frivolous when it lacks legal merit or cannot be supported by areasonable argument, is undertaken to harass or injure another or to prolong litigationunduly, or involves false statements of material fact (see 22 NYCRR 130-1.1[c]).
Respondent asserts that petitioner commenced the instant combined action andproceeding as the culmination of a pattern of harassment targeting respondent that hadbegun months earlier when—after a disagreement with respondent as to the scopeof petitioner's prosecutorial authority—petitioner sought to compel respondent'srecusal from all criminal and Vehicle and Traffic Law matters in Columbia County andfiled more than 100 motions for respondent's recusal, thus allegedly interfering with theoperation of the Town and Village Courts (see People v Chai, 37 Misc 3d 1203[A], 2012 NY Slip Op51870[U] [Kinderhook Just Ct 2012]; People v Dorato, 37 Misc 3d 1208[A], 2012 NY Slip Op51940[U] [Kinderhook Just Ct 2012]). Respondent contends that petitioner's requests forrecordings and a transcript stemmed from these efforts and, further, that the proceedingwholly lacks merit as he was providing the transcript of the October Town Courtproceedings and had so advised petitioner before the petition was filed. Respondentnotes that petitioner had never previously requested a copy of the October 2012recording, and that the petition demands a copy of the June 2012 recording althoughpetitioner had not pursued that request after it was denied six months earlier.[FN6] Next, he contends thatpetitioner deliberately timed the filing of the petition immediately before a holiday andchose to use the expedited procedure of filing by order to show cause—rather thana notice of petition with a return date that, by statute, would have been set a minimum of20 days after the filing date (see CPLR 7804 [c])—to harass respondentand increase the likelihood that he would default.
Finally, respondent contends that sanctions, costs and counsel fees should beimposed upon petitioner for his conduct in altering the original order to show cause afterit had been signed and filed, altering the petition after it had been verified and notarized,and holding the altered documents out thereafter to two Supreme Court Justices and theparties with the apparent intent of misleading them into believing that the amendmentswere authorized.[FN7] In this regard, [*5]respondent states that petitioner's actions caused the Villageof Kinderhook to believe that respondent, in his capacity as Village Justice, had beenproperly joined as a party, with the result that the Village assumed part of the cost ofrespondent's defense, expending approximately $15,000 by the time the briefs were filed.Respondent argues that petitioner took these actions despite his knowledge that thealterations were unauthorized and the Village Justice was not properly a party, thuscontinuing his allegedly frivolous conduct for an extended period (see 22NYCRR 130-1.1 [c]). Respondent further notes that, although petitioner acknowledgedhis conduct in the course of this appeal, he did so solely to gain a perceived advantage inthe litigation. It certainly bears significant consideration that, as an elected DistrictAttorney, petitioner's apparent involvement here may be deemed to constitute asubstantial violation of the Rules of Professional Conduct (compare Matter ofWisla, 291 AD2d 196, 199 [2002]; Matter of Rubenstein, 203 App Div 517,519-520 [1922]).
Petitioner argues that the sanction request is unjustified, asserting, among otherthings, that his conduct was not frivolous, that this combined action and proceeding isnot without merit in law or conducted for the purpose of harassment, and thatrespondent's request for sanctions related to the unauthorized alterations is unpreserved,as it was raised for the first time on appeal. We find no merit whatsoever in this lastcontention, as this claim could not have been fully preserved because petitioner only firstdisclosed in his appellate brief that the alterations had occurred.
An application for sanctions is addressed to the court's discretion (see Navin v Mosquera, 30AD3d 883, 883-884 [2006]; Matter of Rosenhain, 222 AD2d 745, 746[1995], appeal dismissed 87 NY2d 1053 [1996]). Here, Supreme Court did notaddress respondent's request for sanctions, and made no findings in this respect.Respondent urges that, at a minimum, an award be rendered for reimbursement of thecounsel fees and expenses made necessary by petitioner's conduct.[FN8] We are sympathetic tothis request—in particular as to the counsel fees that have been expended,apparently wholly without any sound legal basis or cause, by the Village ofKinderhook—but, nonetheless, we find the factual record of the circumstancessurrounding the alteration of the order to show cause and petition to be incompletelydeveloped. At oral argument, petitioner requested a hearing on this aspect of respondent'srequest for sanctions. A formal hearing is not always required, "depend[ing] upon thenature of the conduct and the circumstances of the case" (22 NYCRR 130-1.1 [d]).However, given the delayed nature of petitioner's acknowledgment that the documentswere altered, the grave and disturbing nature of such conduct, and the lack of factualfindings in Supreme Court relative to all of the other circumstances that respondent hasalleged constitute a pattern of frivolous and harassing conduct, we conclude that furtherfactual development will be helpful. Accordingly, we remit the matter [*6]of sanctions to Supreme Court for the purpose ofconducting a hearing to develop the factual record as to petitioner's conduct and thesurrounding circumstances.
Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment is modified, on thelaw, without costs, by remitting the matter to the Supreme Court for further proceedingsnot inconsistent with this Court's decision, and, as so modified, affirmed.
Footnote 1:The reference to TownCourt was apparently in error, as there were proceedings conducted in Village Court onthis date, but not in Town Court.
Footnote 2:The attorneys for theTown and Village of Kinderhook both had conflicts precluding their representation ofrespondent.
Footnote 3:UCS was grantedpermission to intervene and participated in the proceedings in Supreme Court, supportingrespondent's position, but is not participating in this appeal.
Footnote 4:Notably, althoughpetitioner acknowledges in his brief that he served the altered documents, he does notspecifically admit or deny that he made these alterations. By adopting the passive voice,he further avoids either fully accepting or attributing responsibility for performing theunderlying actions.
Footnote 5:In addition to petitioner'sservice of the altered documents as though the amendments were authorized, the captionson the documents that petitioner submitted to Supreme Court in opposition torespondent's motion—including his affirmations—include a designation ofrespondent in his capacity as Village Justice.
Footnote 6:In Supreme Court, UCSsupported respondent's position that his denial of the June 2012 recording was consistentwith its policies, and supplied documentation of the underlying policies.
Footnote 7:Although not clearlyestablished, it appears upon review that Supreme Court (Doyle, J.) was not advised of thealterations. The decision that court rendered appears to have been premised upon theoriginal order to show cause and petition; it did not mention the amended documents, didnot include a designation of respondent in his capacity as Village Justice, and did notgrant any relief related to that capacity.
Footnote 8:This Court has theauthority to impose sanctions in the first instance, even when asked to do so for the firsttime on appeal, provided that an express request has afforded notice that such reliefwould be considered and, thus, provided a reasonable opportunity to be heard on theissue (see Fox v Fox, 309 AD2d 1056, 1058-1059 [2003]; Matter of DeRuzzio v De Ruzzio, 287 AD2d 896, 897 [2001]).