In a recent appellate court decision authored by a panel of three New York Supreme Court Justices, the Appellate Term of the Supreme Court of the State of New York for the 9th and 10th Judicial Districts unanimously disapproved of the Southampton Town Justice Court’s practice of having its court clerks mail out criminal summonses for alleged code violations by corporate property owners, by using court envelopes addressed to the person to whom the New York Secretary of State is obliged to mail copies of any criminal or civil summons that the Secretary of State receives in its Albany office.

In a seven page written decision dated April 21, 2008, the appellate court vacated a 2006 default judgment and $1,000 fine that had been imposed. The Southampton Town Justice Court had refused to vacate the judgment and fine once the procedural errors were called to the attention of that court in August 2006.

Attorney Patricia Weiss of Sag Harbor represented the successful appellant, 525 Shinnecock Co., Inc., accused of having a pool fence enclosure that did not meet New York State building codes. The People of the State of New York were represented by former Southampton Town Attorney Garrett W. Swenson, Jr. and former Assistant Town Attorney Stephen F. Kiely, both of whom are no longer affiliated with the Town Attorney’s Office. Suffolk County District Attorney Thomas J. Spota had designated them to prosecute code violations within the Town of Southampton. Under a statutory provision of New York County Law, District Attorney Spota is required to monitor all code prosecutions in the town and village justice courts and to maintain records of when such prosecutions are commenced and terminated. As of last week, it could not be determined how frequently the People had obtained other default judgments based upon the same improper method of service of a criminal summons employed in this case, which court practice was the basis for the appellate court’s opinion.

The corporate landowner had argued that the Southampton Town Attorney’s Office should have personally served 2 copies of the criminal summons upon the Secretary of State’s Office in Albany, as New York Business Corporations Law S 306 (b) allows, and that act would have satisfied New York Criminal Procedure Law’s requirement for delivery and service of a criminal summons. There was full agreement by the appellate panel, comprised of Justice Melvyn Tanenbaum of Suffolk Supreme, Justice Edward G. McCabe, Jr. of Nassau Supreme and Justice Alan D. Scheinkman of Westchester Supreme. The decision says: “We are of the view that the mere mailing of the criminal summons by a court clerk to the address given by the corporation as the address to which the Secretary of State should mail any process that was delivered to the Secretary on behalf of the corporation did not constitute a delivery as contemplated by CPL 600.10 (1)….. and, therefore, the default judgment against defendant corporation must not stand. This conclusion applies even assuming the term “delivery” in CPL 600.10 (1) is so broad as to encompass the methods of service of process authorized by other procedural statutes ….”

The panel’s decision was narrow and it did not provide any modern jurisprudence on some broader issues. It expressly stated that it was not going to decide whether the mailing provision of Civil Procedure Law and Rule 312-a would satisfy Criminal Procedure Law 600.10(1). While delving into some legal history about words like “delivery” and “personal” which appear in the Criminal Procedure Law and various cases, the panel did not resolve the question of whether all of the other various methods of “personal service” in the context of civil suits can also apply to criminal suits or whether a criminal summons must be hand delivered. As is typically done, the panel focused on the precise facts before the court - that there was no statute that authorized the manner of service that had been used by the Southampton Town Justice Court clerks and thus no statute that authorized the prosecutors to obtain a default judgment and $1,000 fine in the manner that had occurred.

When reached for comment, Attorney Weiss said that she was very pleased with the panel’s decision. It was evident to her from the length of the decision that all members of the panel had put in a lot of thought and were trying to provide guidance to other towns and villages who are faced with finding the proper balance between affording Due Process to all property owners and at the same time struggling to ensure that those property owners are made aware of possible code violations and doing what is required of them with regard to property maintenance issues. Weiss was hopeful that the decision would lead to changes in the Southampton Town Justice Court as well as in other areas of New York, where local justices might not be aware of the law, as set forth in the detailed opinion. She was uncertain as to what District Attorney Spota’s Office would do about rectifying the default judgments that had been obtained in other cases where, it seemed, the Southampton Town Justice Court lacked the jurisdiction to enter those defaults and $1,000 fines. She refused to speculate as to whether District Attorney Spota actually kept any records or reports about the village and town prosecutions that were occurring under his auspices throughout Suffolk County, and what training, if any, Spota provided to those local prosecutors to ensure that errors like this were not made in the first instance and how they were to be corrected when discovered. Weiss explained that the reason an appeal was necessary was due to the prosecutors’ objection to her request to Southampton Town Justice Thomas DeMayo to vacate the default judgment and $1,000 fine.

The appellate court’s decision focused on the issues of service of process in both civil and criminal cases, which is an area of law with which Weiss has received some special training. For over 10 years, Weiss and another Sag Harbor lawyer Edward D. Burke, Jr. have co-hosted an annual New York Continuing Legal Education seminar featuring Albany Law Professor David D. Siegel, known statewide as the guru of civil procedure. Current case law involving a multitude of service of process issues are invariably discussed each year, in a familiar setting attended by lawyers from Manhattan and throughout Long Island, as well as Clerks from the Suffolk County Supreme Court’s Special Term. This year’s seminar will be held on Friday, July 25th at Spinnaker’s Restaurant in Sag Harbor. For further information, contact (631) 725-4486 or (631) 725-3131.