Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 5-20. DECISION/ORDER PROCEDURAL HISTORY AND BACKGROUND This is a licensee holdover summary proceeding brought against respondents on the basis that the tenants of record are either deceased or have permanently vacated the premises. Petitioner filed the notice of petition and petition on July 10, 2020, at the height of the COVID-19 pandemic in New York City. Rather than choosing a return date, the procedure for scheduling holdover proceedings, governed by the Chief Clerk’s Memorandum (“CCM”) 210 dated July 30, 2020, was as follows: “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.’” While CCM 210 had not yet been issued when petitioner filed the notice of petition and petition, the clerk marked the petition in compliance with the same procedure subsequently articulated in CCM 210. (NYSCEF Doc No. 8, respondent’s exhibit A, notice of petition, petition, and notice to quit.) Petitioner served the notice of petition and petition by substitute service pursuant to RPAPL 735 (1). The mailing was posted on September 2, 2020, and the affidavit of service was filed on September 8, 2020. (NYSCEF Doc No. 20, legacy file.) Subsequently, as with all suspended holdover proceedings, regardless of whether an affidavit of service had been filed or not, a notice from the court that the proceeding had been scheduled for November 15, 2021 was mailed to the parties. According to the Universal Case Management System, available only to court employees and of which the court takes judicial notice,1 this notice was generated on October 26, 2021, 20 (twenty) days prior to the November 15, 2021 appearance (CPLR 4511; NYSCEF Doc No. 19, petitioner’s exhibit D, court notice). On November 15, 2021 the proceeding was adjourned to December 7, 2021, and thereafter stayed by respondent’s filing of a “hardship declaration.” (See generally L 2021, c 427, part C, subpart A.) The proceeding did not appear again on the court’s calendar until petitioner moved to restore the proceeding after expiration of the stay occasioned by respondent’s filing of a hardship declaration which stay expired on January 15, 2022. (L 2021, c 427, part C, subpart A.) That motion was granted.2 Now before the court is respondent’s pre-answer cross-motion to dismiss the proceeding. (NYSCEF Doc No. 5, notice of cross-motion.)3 Respondent’s position is that petitioner filed the affidavit of service of the notice of petition and petition too far in advance of the hearing date scheduled by the court. This, respondent argues, violates the statutory requirement found in Real Property Actions and Proceedings Law (“RPAPL) §733 (1) that “the notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard.”4 Respondent argues that this is a summary proceeding and strict compliance with the governing statutes is required. (NYSCEF Doc No. 6, respondent’s mem of law at 6.) Petitioner opposes on the basis that “…the Notice of Petition and Petition were Filed in Accordance with Chief Clerk’s Memorandum 210.” (NYSCEF Doc No. 14, petitioner’s attorney’s affirmation at 4.) Petitioner argues that “the Court wrote in the part and time in the underlying Notice of Petition as ‘to be determined,’ and in accordance with Chief Clerk’s Memorandum 210 the Petitioner served the Respondents with the Notice of Petition reading ‘to be determined’ as the Part and date of the first appearance.” (Id. 18.) In reply, respondent counters that CCM 210 “concerns the Court’s procedure for scheduling Holdover Proceedings — it does not speak to Petitioner’s obligations.” (NYSCEF Doc No. 19, respondent’s reply affirmation 6.) Citing to Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402 (1st Dept 2008), respondent reiterates her position that petitioner must strictly comply with statutory mandates to obtain jurisdiction. (Id. 7.) Respondent posits that “[t]he Court cannot modify jurisdictional requirements via internal memorandum.” (Id.) DISCUSSION Statutory Requirements for Commencing a Holdover Proceeding RPAPL 735(1) states: “Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail[.]“ In holdover proceedings, RPAPL 733 (1) requires that “the notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard.” When service is made by personal in-hand delivery, service is completed immediately upon personal delivery. RPAPL 735 (2) (a). Modified Court Procedures On March 20, 2020 Executive Order [A. Cuomo] No. 202.8 was issued. This order “tempora[rily] suspend[ed] any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding….” Executive Order 202.8 was extended until November 4, 2020 when Executive Order [A. Cuomo] No. 202.72 lifted the toll. On October 9, 2020, the Chief Administrative Judge issued Administrative Order 231/20, which provided that “[a]ll residential eviction matters, both nonpayment and holdover, may proceed in the normal course, subject to…individual court scheduling requirements occasioned by health and safety concerns arising from the coronavirus health emergency (emphasis added).” (Admin Order of Chief Admin Judge of Cts AO/231/20 ["AO/231/20"], 1 [b].) In the accompanying memorandum, the Hon. Lawrence K. Marks explained that “[t]he safety of judges, non-judicial personnel, and court visitors remains the paramount concern in all court operations. Given the ongoing need to restrict foot traffic in courthouses for reasons of health and safety, we anticipate that the scheduling, hearing and issuance of decisions in eviction matters will often require far lengthier time periods than anticipated in statutes and prevalent under pre-COVID conditions.” (Mem of Chief Admin Judge of Cts, available at https://www.nycourts.gov/whatsnew/pdf/EvictionsMemo-10-09-20.pdf, last accessed January 20, 2023.) Concededly, as with CCM 210 (discussed above), AO/231/20 was issued after petitioner served the notice of petition and petition. However, the preceding executive and administrative orders were issued before petitioner filed and served the notice of petition and petition. None of the executive or administrative orders advised landlords either to serve or not to serve a notice of petition and petition comprising the CCM 210 language. Indeed, Administrative Order 127/20, issued on June 18, 2020 provided that “…eviction proceedings filed after March 16, 2020 shall, upon the filing of a petition (if no answer is filed thereafter) or the filing of an answer, be suspended until further order (emphasis added).” Administrative Order 160/20 issued on August 13, 2020 superseded AO/127/20 but also extended the suspension of proceedings filed after March 16, 2020.5 DISCUSSION The modified court procedures set forth in various administrative orders were well within the Chief Administrative Judge’s power to control the daily operations of the court and did not intrude upon the legislature’s authority to regulate proceedings in law. However, like CCM 210, none of the relevant administrative orders altered nor excused statutory requirements. Unlike the legislature and the governor, the Chief Clerk and the Chief Administrative Law Judge do not have the power to enact, suspend, or modify statutes during a state of disaster in order to manage the emergency.6 Moreover, nothing requires a petitioner to serve a notice of petition and petition within a specific time-frame after filing it with the court, but RPAPL clearly requires a notice of petition and petition to be served, and the affidavit of service filed, no less than 10 and no more than 17 days after the completion of service. Petitioner herein does not argue prejudice to itself by dismissal of this proceeding on RPAPL 733 (1) grounds; nor does petitioner argue that respondent experienced no prejudice as a result of the early filing of the affidavit of service of the notice of petition and petition. Regardless, to the extent that such claims could be inferred, in the First Department prejudice is not part of the calculus on a motion to dismiss for failure to comply with statutory prerequisites for service and filing of commencing papers. The Appellate Division, First Department’s interpretation of RPAPL 733 (1) has changed over the years. In Berkeley v. DiNolfi, 122 AD2d 703 (1st Dept 1986), the court denied a landlord’s motion to deem filing timely pursuant to RPAPL 733 (1) and dismissed the proceeding. While the Berkeley court found that the tenant had been prejudiced in light of his default by the one-day delay in filing because it foreshortened the time required by RPAPL 733 (1), such consideration of prejudice has effectively been abandoned in the First Department. Twenty-two years after Berkeley was decided, the Appellate Division in Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402 (1st Dept), eschewed the concept of prejudice in a case where the proceeding was noticed just one day short of the requirements in RPAPL 733 (1). The Appellate Division in Saltzman reversed the Appellate Term which had cited to Berkeley to support its determination that short-filing can be excused where there is no prejudice to the respondent. Respondent’s citation to Riverside Syndicate to support her position that the proceeding should be dismissed is apropos. Lower courts have followed suit. For example, in Bronx 2120 Crotona Ave. L.P. v. Gonzalez, 168 NYS3d 674 (Civ Ct, Bronx County 2022), the court dismissed a petition where the holdover proceeding was initially heard just one day less than 10 days after filing proof of service. Relying on Riverside Syndicate, the Gonzalez court rejected the landlord’s argument that prejudice is a necessary element in the controlling case law. More recently, in Matticore Holdings, LLC v. Hawkins, 76 Misc 3d 511 (Civ Ct, Bronx County 2022), the court dismissed a holdover petition where petitioner filed the affidavit of service of the notice of petition and petition more than 17 days prior to the return date of the petition; the affidavit of service was filed 21 days in advance of the hearing. Also citing to Riverside Syndicate, the court rejected petitioner’s argument that the petition should not be dismissed because respondent was not prejudiced by receiving more than 17 days to defend the proceeding. With regard to petitioner’s argument that dismissal is not warranted because the notice of petition and petition “were filed in accordance with [CCM 210],” the court disagrees that CCM 210, or any of the directives or orders, instructed landlords how and when to serve the notice of petition and/or when to file their affidavits of service. (See Lamont Hill v. Carmen Cubilete et al, Civ Ct, Kings County, July 22, 2022, Harris, J., index no 300344/20 [holding that a clerk's memorandum does not supersede a statute, and dismissing a holdover petition for failing to comply with RPAPL 733 [1].) Respondent argues that petitioner should have waited to receive the court notice scheduling the hearing date, and, at that juncture, served or re-served the notice of petition and petition and filed the affidavit of service. This, respondent argues, was possible and would have complied with RPAPL 733 (1). (NYSCEF Doc No. 6, respondent’s mem of law at 6.) As set forth above, the court sent a letter to the parties on October 26, 2021, alerting them that the first court appearance would be on November 15, 2021, 20 days later. This provided petitioner with sufficient time to serve the notice of petition and petition within the statutory time-frame required by RPAPL 733 (1) prior to the first scheduled appearance. CCM 210 and AO 231/20 did not provide clear guidance with regard to serving and filing of the notice of petition and petition; but neither did they, nor could they have, altered statutory requirements. However, petitioner’s statement that “the Notice of Petition and Petition were served in accordance with Chief Clerk’s Memorandum 210,” proves too much. What is clear is that it was still possible to follow the existing statutory prerequisites for commencing a summary holdover proceeding in the normal course; and no rule of the court required them to serve the notice of petition and petition prior to receiving a hearing date. Neither is there any rule or law requiring petitioner to serve a notice of petition and petition within a time-certain after receiving an assigned notice of petition from the court. What is fair or unfair is typically not a legal question because fairness, in the colloquial sense, is too subjective. As here, what is fair subjectively and what an objective analysis the law requires are often in disagreement. CONCLUSION Accordingly, for the foregoing reasons, it is ORDERED that respondent’s motion to dismiss is GRANTED and the petition is dismissed without prejudice. This constitutes the decision and order of this court. Dated: January 23, 2023
