Landlord Served Holdover Petition Too Far in Advance

Landlord sued to evict apartment occupant after tenant died or had permanently vacated the apartment, claiming that the occupant's license to live in the apartment had expired. Landlord filed its notice of petition and petition on July 10, 2020, at the height of the COVID-19 pandemic, and filed its affidavit of service of the court papers on Sept. 8, 2020. The licensee asked the court to dismiss the case because the affidavit of service was filed too far in advance of the initial hearing return date scheduled by the court for Nov. 15, 2021.

The court ruled for the licensee and dismissed the case without prejudice. RPAPL Section 733(1) required that the notice of petition and petition be served on the respondent at least 10 but not more than 17 days before the initial return date. Strict compliance with this provision was still required, and landlord could have followed the RPAPL provision when serving the court papers on the licensee. The court pointed out that a Chief Clerk's Memorandum (CCM 210) had been issued on July 30, 2020, stating that, "Landlord & Tenant Holdover cases are generally submitted with a return date selected by the filer/petitioner. Due to the current crisis related to the COVID-19 Pandemic, we are unable to schedule these cases and are uncertain when future court dates will become available. . . . A notation should be made on the Notice of Petition -- Assigned stating 'DATE TO BE DETERMINED. THE COURT WILL NOTIFY ALL PARTIES OF THE COURT DATE."' 

Audubon 27 LLC v. Perez: Index No. 055706/2020, NYLJ No. 1676038548 (Civ. Ct. NY; 1/23/23; Bacdayan, J)