The court also pointed out that the NYCCCA does not require that proof of service be filed in order for Civil Court to have jurisdiction over a party to a special proceeding. It cited NYCCCA §400(2) which provides that jurisdiction is acquired over a party to a special proceeding by service upon such party of the notice of petition and petition.
Judge Kraus drew a distinction between, on the one hand, “a true violation of RPAPL §733(1), where acts other than filing proof of service necessary to acquire jurisdiction over the respondent are not complete five days before the petition is noticed to be heard,” and, on the other hand, cases “where all acts for service were timely made in accordance with RPAPL §733(1), but the affidavit of service was filed late.” The court viewed the case before it as falling in the latter category, stating:
In support of the conclusion that where the only alleged defect in service is the late filing of proof of service, the error is de minimus and may be excused, the court cited the following cases involving summary proceedings: Revelstoke Properties Inc. v. Beaumont Neckwear Inc.,6 Fame Company v. Sandberg,7 Eiler v. North,8 and Jamal Estates v. Crockwell.9 It also cited two cases, Paracha v. County of Nassau10 and Toulouse v. Chandler,11 which were a personal injury action and a breach of contract action, respectively, involving the CPLR rather than the RPAPL. The court implicitly justified its reliance on such case authority beyond the context of summary proceedings by citing the following passage from the Appellate Division, Second Department in Lanz. v. Lifrieri:12
