| Matter of Ebanks v Skyline NYC, LLC |
| 2010 NY Slip Op 01487 [70 AD3d 943] |
| February 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of David Ebanks, Petitioner, v Skyline NYC,LLC, Respondent, and New York City Department of Housing Preservation and Development,Appellant. |
—[*1] Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park, N.Y. (Kenneth Mintz and OlgaSomeras of counsel), for respondent.
In a proceeding to enforce compliance by Skyline NYC, LLC, with the New York CityHousing Maintenance Code (Administrative Code of City of NY, tit 27, ch 2), the New YorkCity Department of Housing Preservation and Development appeals, by permission, from anorder of the Appellate Term for the 2nd, 11th, and 13th Judicial Districts dated September 29,2008, which reversed an order of the Civil Court, Kings County (Gonzalez, J.), dated February 1,2007, denying the motion of Skyline NYC, LLC, to vacate a judgment entered upon its default inanswering or appearing and to dismiss the petition, and thereupon granted the motion, vacatedthe judgment entered upon default, and dismissed the proceeding.
Ordered that the order dated September 29, 2008, is affirmed, with costs.
The petitioner commenced this proceeding to enforce compliance by Skyline NYC, LLC(hereinafter the owner), with the New York City Housing Maintenance Code (AdministrativeCode of City of New York, tit 27, ch 2; hereinafter the Housing Maintenance Code) bycompelling it to correct certain outstanding violations of the Housing Maintenance Code extantat its property. In the order to show cause submitted and filed with the verified petition tocommence the proceeding (see NY City Civ Ct Act § 400 [1]), the Civil Courtdirected that service of those papers was to be effected upon the owner by regular first-classmail, with certificate of mailing. When the owner defaulted in answering the petition orappearing in the proceeding, an order to correct certain violations and a subsequent judgmentimposing civil penalties were entered against it. The owner subsequently moved to vacate boththe order to correct the violations and the judgment entered upon its default in answering orappearing, and to dismiss the petition, upon the grounds, inter alia, that service by regularfirst-class mail was unauthorized and improper. The Civil Court denied the motion, concludingthat it had the authority to direct service by regular first-class mail, and that the petitioner hadcomplied with the terms of the order to show cause. The Appellate Term reversed the order ofthe Civil Court denying the motion, vacated the judgment, and dismissed the proceeding,concluding that the Civil Court did not have authority to direct service of the order to show causeand [*2]petition by regular first-class mail without the petitioner'sshowing of special circumstances, and that, in effect, the Civil Court lacked personal jurisdictionover the owner. The New York City Department of Housing Preservation and Developmentappeals, contending that the Civil Court had the authority under the New York City Civil CourtAct and the Housing Maintenance Code to direct service by regular first-class mail, without ashowing of special circumstances. We agree with the Appellate Term.
The New York City Civil Court Act (hereinafter the Act) provides, as relevant here, thatservice, within the City of New York, of a summons, a notice of petition, or an order to showcause commencing a special proceeding may be made in the same manner as authorized inSupreme Court practice under the CPLR (see NY City Civ Ct Act § 403; seealso NY City Civ Ct Act § 400 [2]; CPLR 403 [c], [d]). The Act also provides,however, that service of process in certain actions and proceedings commenced in the HousingPart of the Civil Court involving the enforcement of laws regarding maintenance of housingstandards may also be served, "as an alternative," as provided for "in the housing maintenancecode of the administrative code of the city of New York" (NY City Civ Ct Act § 110 [a],[m] [1]). Insofar as relevant here, section 27-2115 of the Housing Maintenance Code providesthat, in proceedings such as the one at bar:
"(h) (1) . . . the tenant . . . may . . . apply to thehousing part for an order directing the owner and the department to appear before the court. Suchorder shall be issued at the discretion of the court for good cause shown, and shall be served asthe court may direct . . .
" (j) If a tenant seeks an order directing the owner and the department to appear before thecourt pursuant to subdivision (h) . . . of this section, the court may allow service ofthe order by the tenant by certified or registered mail, return receipt requested."
These two subsections must be read together. If, as the Civil Court held, that court may,under subdivision (h), order that service be effected in any manner that it directs, subdivision (j)would be superfluous since the court would already have possessed, even in the absence ofsubdivision (j), the authority expressly granted to it by subdivision (j) to direct that service beeffected by a tenant through the use of registered or certified mail. Indeed, the enactment ofsubdivision (j), which postdated the enactment of subdivision (h), would have accomplishednothing. Contrary to the conclusion of the Civil Court, however, courts must give effect to thewording of a statute without rejecting any words as superfluous, and must harmonize relatedprovisions in a way that renders them compatible (see Matter of Tall Trees Constr. Corp. vZoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). Subdivision (j),therefore, must be read as effectively providing the Civil Court with the option of permittingservice of a notice of petition or order to show cause in a manner not otherwise authorized bysubdivision (h) or by other applicable statutes, but which would nevertheless ensure that anowner actually receives process, namely, by authorizing service by the tenant by certified orregistered mail (see Mem of City of NY, Bill Jacket, L 1980, ch 526, 1980 NY LegisAnn, at 209-210; cf. CPLR 2103 [a]).
Accordingly, the Appellate Term properly concluded that the Civil Court was notauthorized, under the circumstances of this case, to permit service of the order to show cause andpetition by regular first-class mail, with certificate of mailing. Consequently, the Appellate Termproperly reversed the order of the Civil Court, granted the owner's motion to vacate the judgmentand dismiss the petition, and dismissed the proceeding. Fisher, J.P., Angiolillo, Belen and Lott,JJ., concur.