Upon respondent’s motion for summary judgment dismissing this proceeding and the papers submitted in support thereof, the opposition submitted by petitioner, and the reply of respondent all pursuant to a briefing schedule; the unauthorized sur reply of petitioner, the pleadings and the arguments of counsel placed upon the record in open court, it is decided and ordered as follows: The grounds of respondent’s motion lie in the absence of issues of fact and Petitioner, an attorney admitted to practice in the courts of New York representing herself, personally issued the notice of petition here in violation of RPAPL 731(1). Petitioner counters that RPAPL 731 (1) indicates that an attorney may issue the notice of petition and thus she had the ability regardless of the prohibition against the petitioner issuing the notice of petition personally. The relevant portion of the statute reads, “The special proceeding prescribed by this article shall be commenced by a petition and a notice of petition. A notice of petition may be issued only by an attorney, judge or the clerk of the court; it may not be issued by a party prosecuting the proceeding in person.” It is axiomatic that a special proceeding, existing pursuant to statute as a fast-tracked exception to the plenary action, comes with a high degree of strict compliance with the procedural requirements of that statute. 2 Rasch, New York Landlord and Tenant — Summary Proceedings §29:5, 29:13 [3d ed], Columbus Prop. v. I S K S Realty Corp., 163 Misc 2d 446 (Civil Court, NY County, 1994), 25-31 Ontario St. v. Anthony, 2019 New York Slip Op 29393, 66 Misc 3d 566 (City Ct., Albany County, 2019) citing matter of Cat Hollow Estates, Inc. v. Savoia, 46 AD3d 1293 (Third Department, 2007), Clarke v. Wallace Oil Co., 284 AD2d 492 (Second Department, 2001). While a certain liberality has developed excusing hyper-technical failures to comply with some provisions of RPAPL article 7, it still must be said that strict compliance with the essential requirements of article 7 is necessary to establish a viable summary proceeding. It has been held that compliance with the limitations set forth in RPAPL 731(1) is strictly required so that if the notice of petition is issued by someone other than an attorney, a judge or the clerk of the court, the summary proceeding is fatally defective. Grove Street Really, Inc. v. Testa, 100 Misc 2d 278 (City Court, Peekskill, 1979), Shamooli v. Mecanik, 31 Misc, 2d 1242(A), (District Court, Nassau County, 2011), M & T Caruso, 60 Misc 3d 501 (Justice Court, Town of Pound Ridge, 2018). In the above cases, it was the lay petitioner or a business entity who attempted to issue the notice of petition in violation of RPAPL 731(1) and not a self-represented attorney. The question herein is whether being a member of one of the three classes of persons authorized to issue a notice of petition has primacy over the express prohibition against issuance by the Petitioner or whether the reverse is so. Which clause of the second sentence of the statute controls? Thus, the resolution of this motion turns upon statutory interpretation. The Court of Appeals has articulated the applicable canons of statutory interpretation: “When interpreting a statute, “our primary consideration is to discern and give effect to the Legislature’s intention” (Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, 968 NE2d 967, 945 NYS2d 613 [2012]). The text of a statute is the “clearest indicator” of such legislative intent and “courts should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653, 660, 860 NE2d 705, 827 NYS2d 88 [2006]). We have also previously instructed that “[i]t is an accepted rule that HN4 all parts [****11] of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (Rocovich v. Consolidated Edison Co., 78 NY2d 509, 515, 583 NE2d 932, 577 NYS2d 219 [1991]). Furthermore, “a statute…must be construed as a whole and…its various sections must be considered together and with reference to each other” (Matter of New York County Lawyers’ Assn. v. Bloomberg, 19 NY3d 712, 721, 979 NE2d 1162, 955 NYS2d 835 [2012].” Matter of Avella v. City of New York, 29 NY3d 425 (2017). It may be fairly concluded from the above that inference is not permitted unless there is ambiguity in the statute. Moreover, in attempting to discern the intent of the Legislature, reference to the legislative history of the statute in question is both common and appropriate when there is an open question as to meaning, Sisters of St. Joseph v. New York, 49 NY2d 429 (1980), which means reference to that history is not permitted unless there is such an open question. Finally, if there is a deficit in a statute it may not be remedied by judicial interpretation. Matter of Mangan, 83 NYS 2d 393, McKuskie v. Hendricksoin, 128 NY 555. Before applying the foregoing principles, it is first seen that Petitioner relies upon Lee v. Tabasko, 2010 NY Slip Op 51260 (U) (District Court, (First District, 2010) in which the court dealt with the same assertion that the petitioner, a self-represented attorney, personally issued the notice of petition. The Court found there was no violation of RPAPL 731 in recognizing Petitioner’s “dual roles”. However, that conclusion was not the main thrust of the holding of the case involving the question of whether a landlord tenant relationship existed. Instead, the court noted that the argument was first raised improperly in a motion reply and gave the point short shrift. It is clear that the rejection of the tardy argument is mere dicta. It is well-established that the deference due precedent by the rule of stare decisis does not apply to dicta. People v. Rosano, 69 AD2d 643 (Second Department, 1979). In turning to the statutory language, it may initially appear that there is a conflict in meaning between the two clauses under examination. In the first clause, the Legislature sets forth three classes of persons capable of issuing the notice of petition. If one is not an attorney, a judge, or a clerk of the court, then one is not authorized to issue a notice of petition. Why then does the Legislature bother to go further in the second clause stating that a notice of petition may not be issued by the petitioner? Does the statute mean as petitioner contends that the first clause overrides the second creating an exception to the prohibition on self-issuance of the notice of petition, despite that exception not being expressly set forth and the obvious awkwardness of inferring an exception to a prohibition stated before the prohibition itself is set forth? Obviously, plain language would require an exception to a prohibition to follow and thereby clearly modify the prohibition. Reference to the relevant legislative history indicates a definite intention of the Legislature to specifically prohibit a party from prosecuting the proceeding in person so as to avoid potential abuse by a pro se petitioner in a summary proceeding. Was it thus the intention of the Legislature to emphatically but redundantly say in two different ways that a lay pro se landlord could not issue a notice of petition and also imply that a self- represented landlord who happens to be an attorney could still issue the notice of petition? Can one infer Petitioner’s asserted exception to no self-issuance for a petitioner who is also of one of the three permitted classes of persons who can issue the notice of petition? The logical application of the rules of interpretation requires that each question be answered in the negative. In following the requirement to view the language of the statute as a whole with each part to be given meaning and no part to be disregarded and to avoid an inference when the language is clear, there is an interpretation which makes sense, sees meaning in all parts of the statute, is devoid of inference and the impression of redundancy and thus that interpretation must be given effect. In first expressly identifying the three groups of persons capable of issuing a notice of petition, the legislature concomitantly excludes everyone else from the ability to issue a notice of petition. Thus, the second clause, in order to have meaning, must refer only to those who might be members of the three groups identified in the first clause as having the power to issue the notice of petition, as there is no need for the clause to prohibit personal issuance of the notice of petition by anyone not a member of one of the three classes. Thus, Petitioner’s reliance upon a “dual role” is in error because the purpose of the express language prohibiting a petitioner from personally issuing the notice of petition is necessarily directed only to the attorney, the judge, or the clerk of the court who would seek to personally issue the notice of petition. Petitioner’s understanding of the statute is based upon inference and that inference is contradicted by the clear language on the page. There are no grounds to properly infer that the Legislature thought that the landlord who happened to be an attorney could be less abusive when personally issuing a summary proceeding than the lay landlord would be because the language is not ambiguous so as to permit inference at all. The second clause thus exists to modify the first clause, not the other way around, thereby making the meaning of the entire sentence plain and, although not necessary to say, happily in accord with the legislative history of the statute in question. It is therefore clear that the notice of petition in this summary proceeding has been improperly issued in violation of RPAPL 731(1) and, in as much as it is the notice of petition which extends jurisdiction over the person of the respondent, no summary proceeding was ever commenced and there is no jurisdiction herein. It is therefore ORDERED in accordance with the foregoing that summary judgment is granted to Respondent, and this summary proceeding is dismissed with costs and disbursements awarded to Respondent. Dated: July 3, 2020
