State of New York
Supreme Court : County of Monroe

American Financial Corp. Of Tampa
n/k/a Altegra Credit Corp.,

Petitioner,

For an Order pursuant to Article 78
of the Civil Practice Law and Rules,

- against -

Index No. 2002/3505

Respondents.
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Certilman Balin, representing the petitioners here, are more commonly before this court prosecuting foreclosures. In this case, however, the property in question was sold in a tax foreclosure sale by the City of Rochester. Certilman Balin represents the successor to the original mortgage holder, and claims that its client did not receive notice of the tax foreclosure sale and thus was unable to protect its interest in the property.

Petitioner brought this Article 78 proceeding by way of a notice of petition, seeking to vacate the tax foreclosure sale. Before answering, however, the city has moved to dismiss on jurisdictional grounds. It appears that no copy of the petition can be found in the Monroe County Clerk's office, where it is required to be filed before service.

There is no serious dispute that the Clerk's files do not contain a copy of the petition. Instead, petitioner points to the cover letter with which two copies of the notice of petition, with petition attached, were transmitted. The court has in its files the original of this letter, with attachments from the clerk's office. It is dated March 14, 2002. It is properly addressed, contains a notation that there are enclosures, and it requests that the Clerk "file the Notice of Petition and return the original to us with the index number." The Clerk's receipts, which were stapled to this letter before it was sent to the court, shows payment of "FILE FEE S" on March 19, 2002. Petitioner apparently did not receive a date-stamped copy or original of the petition.

The court is in possession of two identical copies of these papers, which presumably are the ones submitted with the letter. Clearly, the clerk complied neither with the petitioner's written request nor with the clear directive of CPLR 304:

At the time of filing, the filed papers shall be date stamped by the clerk of the court who shall file them and maintain a record of the date of the filing and who shall return forthwith a date stamped copy, together with the index number, to the filing party.

The County did not submit papers in opposition, and for that reason its appearance is not noted above. An attorney for the County did appear at oral argument, though, and in essence offered testimony, claiming that the customary practice of the Clerk is to file those papers submitted for filing. Both respondents have argued that the absence of the notice of petition in the Clerk's files places the burden on the petitioner to explain what happened, and they argued that the March 14 letter might not have been accompanied by any of the enclosures. At oral argument Ms. Hauser asked rhetorically, "Where is the petition?"

This improperly shifts the burden onto a party in no position to produce the evidence. The Court cannot accept the County's argument, which in essence argues that the Clerk does not ordinarily make errors and therefore did not do so this time. The County Clerk's office is a human institution, and like all such institutions (this court included) it is fallible.

Surely the customary practice of the Clerk's office is to do what it is instructed to do by those who bring or send papers, so long as the request is a proper one. (It should also be its practice to inquire of the sender if a cover letter directs the filing of nonexistent documents.) Petitioner is entitled to rely on the clerk's compliance with its letter of March 14, with or without confirmation in the form of a date-stamped copy. The practice of law is complicated enough; it would be unreasonable to make lawyers double-check every submission to the Clerk's office to ensure that the Clerk did what it was told.

In its original decision the Court considered the requirement in CPLR 304 that a special proceeding be commenced with the filing of a Notice of Petition, a document which is incomplete without a return date. This is the version of CPLR 304 contained in the Court's 2002 research materials. However, it has been brought to the attention of the Court in a separate proceeding that this provision had been amended so recently as to be omitted from most copies of the CPLR, and as of the date of the filing of the petition in this case it did not require that a Notice of Petition be filed. There are, therefore, no jurisdictional defects in the original filing. The court sua sponte has issued this amended memorandum decision, which is to be filed in lieu of the original of May 28, 2002. Upon signing and filing of an appropriate order the case will be addressed on its merits, and the City will have the statutory five days after service of the order with notice of entry for its answer..

DATED: Rochester, New York

June 10, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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