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Comenity Bank v. Arlo

Petition Dismissed, Petitioner Did Not Comply With Proper Service Rules

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Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed       1 Order to Show Cause Answering Affidavits Replying Affidavits Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, petitioners motion for a judgment against, Respondent, Cutter Argo, is decided as follows: Petitioner presents a petition requesting a judgment against Respondent, CUTLER ARGO, in the amount of $1,831.80. Petitioner asserts that an Income Execution was served upon Cutler Argo by a New York City marshal requiring the garnishment of the salary of judgment debtor, Carissa Joseph. The Respondent was “served” on April 18, 2024 by regular mail. The Notice of Petition and Petition were filed in the Civil Court on May 29, 2024. The method of commencing an action or special proceeding in the Civil Court is by the filing of a summons and complaint, notice of petition and petition, or an order to show cause with the Clerk of the Court, plus the payment of any required fee, New York City Civil Court Act, §400. A casual reading of the statute leads one to ascertain that a proceeding is commenced by filing, not service of the notice of petition and petition, 528 East 11th Street H.D.F.C. v. Durieaux, 164 Misc. 2d 595 (Civil Ct., New York Co. 1995). The Court also notes that pursuant to the New York Civil Court Act §403, service shall be made in the manner prescribed in Supreme Court practice. Mailing a notice of petition and petition by first class mail or regular mail is not an acceptable manner of service. Accordingly, the petition is dismissed, and the motion is denied. This constitutes the decision and order of the Court. Dated: October 1, 2024

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