Affidavit Service

[scudder]

What is the name of your state (only U.S. law)? New York

I was recently "served" with eviction papers (petition) 2 days prior to the hearing. I found the papers jammed in my door on a Saturday night, with a court date that coming Monday. The landlord's attorney produced an affidavit that said multiple attempts had been made to serve the petition, and I was not home. I can't prove that either way, but it also said that a copy was sent via certified mail, return receipt. I never received it, and it was supposedly sent over a week ago. There were multiple statements in the affidavit I know to be false (the papers were not "in an envelope, properly addressed"), but could never prove. I took a deal that includes payment of legal fees in exchange for a stay on the warrant, so I suspect I've lost my right to fight it personally, but can I take this to the DA or something? Would anyone care? A little internet research tells me this happens all the time. I would think if I never get the certified mail it could at least be proven that that statement was false. The affidavit form they used even included a space for the certified mail receipt number, which was left blank.


Edit: Also, the warrant is stayed until Dec. 2 pending my payment. If they want to move to have the warrant served do they have to notify me of another hearing date, or can they just claim I didn't pay and have the warrant served?

 

[JETX]

can I take this to the DA or something?

Take what to the DA?? There is nothing in your post to even suggest criminal conduct.

Would anyone care?

You might.

Edit: Also, the warrant is stayed until Dec. 2 pending my payment. If they want to move to have the warrant served do they have to notify me of another hearing date, or can they just claim I didn't pay and have the warrant served?

Read the paperwork. If it is at all as you think, they would be able to get the warrant on your failure.

 

[scudder]

Claiming in an affidavit that you mailed a document via certified mail when you in fact did not is not a crime?

Let's assume for a moment that I did pay in full by December 2, and the landlord requested the warrant anyway. If I can prove payment was made can the eviction still be stopped? I'm concerned because the original petition cited a sum that was incorrect due to payments already made, which the lawyer hadn't bothered to check on. I'm afraid if I pay this very close to the due date the lawyer will simply assume I haven't paid without double-checking.

 

[You Are Guilty]

Long answer:
The lack of receipt of the certified letter is not the equivalent of it not being sent. There are thousands of people who take delight in "dodging" certified letters just so they can later claim they were not served properly. The law takes this into account by only requiring that it be sent, not received. (Not to imply that this is what occurred in your case).

As for the papers being left on the door, that is also permissible. It's called "nail and mail" service, authorized under CPLR 308(4). As you might have surmised, it originally called for the papers to literally be nailed to your door. In this modern day, they only need to be "affixed". More importantly, since you admit you received them ("actual notice"), you would have a huge uphill battle to claim you were improperly served.

Short answer:
No, no one is going to care about what the affidavit of service says.


Good luck.

 

[scudder]

I'm not for one minute suggesting I'm not guilty of owing back rent, and I fully intend to pay by the agreed-upon deadline. I was just curious if there was any oversight on the affidavit process, and if anyone could actually convicted of a crime if it could be proven that they lied in one. Your point about the letter being sent vs. received is well taken. I suppose I could make sure I wasn't home when the mail came to "dodge" it as you suggest. Still, certified mail comes with a receipt when sent, and I would think that, theoretically at least, it could be proven that the letter was in fact never sent, making the statement in the affidavit false.

 

[You Are Guilty]

If the sender cannot produce the Certified Mail receipt, then it comes down to a question of credibility. Who will the Judge believe more - the LL or the tenant? No way for anyone to accurately predict how that decision will turn out. (However, it does mean that no DA on the planet is going to attempt to prosecute someone for claiming they did mail something Certified).

 

[JETX]

Claiming in an affidavit that you mailed a document via certified mail when you in fact did not is not a crime?

It is not a crime in itself. But if a complaint were made to the prosecutor and the prosecutor investigated the complaint, it is unlikely (in my opinion) that charges would be brought... or even a complaint processed.

Let's assume for a moment that I did pay in full by December 2, and the landlord requested the warrant anyway. If I can prove payment was made can the eviction still be stopped?

Yep. Just show up in court and present a copy of the canceled check or a receipt for that payment.