124 Misc. 2d 597 | N.Y. City Civ. Ct. | 1984
OPINION OF THE COURT
issue:
In a proceeding to punish a landlord for contempt of court, is due process satisfied and does the court have jurisdiction where envelopes containing a copy of a preliminary court order directing correction of immediately hazardous code violations, to wit, lack of heat and hot water and a copy of an order to show cause why the respondent landlord should not be held in contempt of this court, both mailed to the premises of the said landlord by certified mail, return receipt requested, which subsequently are returned to the petitioner tenant marked respectively, “Undeliverable no mail facility” and “No mail recepticale” (receptacle)?
facts:
In this proceeding, petitioner, Jeffrey Silverstein, moves by order to show cause to punish the respondent landlord William Diaz for contempt of court by reason of the failure
ANALYSIS AND THE LAW:
The purpose and nature of process, generally speaking, is to give notice and an opportunity to be heard. (Dobkin v Chapman, 21 NY2d 490.) It seeks to notify the defendant that an action is pending, fairly apprise him of its object and tell him, when, where and how he should respond. (Fashion Page v Zurich Ins. Co., 69 AD2d 787, affd 50 NY2d 265.)
Such notice is an absolutely fundamental requirement of due process. (US Const, 14th Arndt; Connell v Hayden, 83 AD2d 30.) But in affording any prospective respondent or defendant these constitutional and procedural safeguards, there is a corresponding duty created and imposed upon persons within the court’s jurisdiction to submit to the service of process. (Gumperz v Hofmann, 245 App Div 622, 624, affd 271 NY 544.)
Nor is this a case where the postal authorities did not deliver the certified mail in the first place. There is of course a presumption of official regularity and an item mailed will be presumed delivered. Where proof, however, is adduced that there has been no delivery of process by the testimony of a post-office employee responsible for the delivery of certified mail supporting the tenant’s contention that he never received the letter, the court may conclude that service was not properly effectuated notwithstanding proof of mailing. (Leland House v Wigfall, 98 Misc 2d 355.) But in the instant case and under the facts herein, the statutes dealing with service should be construed so as to give effect to their purpose especially where it is the landlord who by his own actions or inactions obstructs the course of due process. (See Chernick v Rodriguez, 2 Misc 2d 891.) The failure of the landlord to provide and to maintain proper receptacles for mail delivery by the post office, in a public area and physically accessible to postal authorities, constitutes, in the judgment of this court, a blatant, flagrant and willful refusal of process which he may not do and still claim that due process has been violated or that the court has no jurisdiction by reason thereof.
conclusion:
Accordingly, the court holds that there has been proper service under these circumstances and that the court maintains jurisdiction of these proceedings under the law. After inquest, and on the testimony and evidence adduced therein, this court finds the landlord, pursuant to article 19 of the Judiciary Law, in criminal contempt of this court and fines the landlord $1,500 for failure to provide heat and hot water in accordance with the court’s corrective order of March 15, 1984, and an additional $500 in punitive damages payable to the Department of Housing Preservation and Development forthwith.