Court Excuses Landlord's Late Filing of Affidavit of Service of Petition

Landlord sued to evict an apartment occupant in May 2024 after sending a 10-day notice to vacate. Tenant had sent landlord a 30-day notice dated Dec. 30, 2023, stating that he was moving out. Landlord received the notice in February 2024, and tenant later advised landlord that tenant's friend Rivera remained in the apartment. After landlord filed its court petition to evict the occupant in July 2024, the court assigned an initial court date of Jan. 13, 2025, to the case. The occupant obtained an attorney after the first court date, who then asked the court to dismiss the case for failure to comply with the Good Cause Eviction Law. The occupant also asked for dismissal, claiming that landlord's affidavit of service wasn't filed within three days of service of the notice of petition and petition, and wasn't served within the 10-17 days before the initial court date. 

Here, the court denied the occupant's motion to dismiss the case. The court found that the late filing of the affidavit of service was a "technical infirmity" within the scope of CPLR 2001 and didn't warrant dismissal of the case. And the Second Department had, on numerous occasions, held that failure to file timely proof of service didn't constitute a prejudicial defect but was a procedural irregularity that could be excused in the court's discretion. The occupant didn't demonstrate that she was prejudiced by the late filing of the affidavits of service. As to service of the petition, the court found that the papers were served during the 10-17 day window before the initial court date. The mere late filing of the affidavit of service didn't impact the court's jurisdiction and was a de minimis oversight. As to the GCE Law, the court permitted landlord's prompt request to amend its petition to state that the apartment was exempt from the GCE law because it was rent stabilized.

Emerald Green Phase II LP v. Rivera: Index No. 314949-24, 2025 NY Slip Op 50916(U), NYLJ 6/12/25, p. 17, col. 2 (Civ. Ct. Kings; 6/5/25; Cohen, J)