Kawary v. Joy

In a proceeding pursuant to CPLR article 78 to compel the respondent to accept, as timely, petitioner’s protest of an order that his apartment was not subject to rent control, the petitioner appeals from so much of a judgment of the Supreme Court, Kings County (Bernstein, J.), entered June 9, 1980, as dismissed the proceeding. The appeal brings up for review so much of an order of the same court, entered November 25, 1980, as, upon reargument, adhered to the original determination. Appeal from the judgment dismissed, without costs or disbursements. The judgment was superseded by the granting of reargument. Order affirmed, insofar as reviewed, without costs or disbursements. We agree with Special Term that the petitioner’s protest against an order of a local rent administrator was neither served nor postmarked within 33 days of the date of said order. The affixation, by petitioner’s attorney, of a postmark meter stamp on the petitioner’s protest-may not be equated with an official postmark that is made when the postal service cancels a stamp, since the former is subject to being adjusted to suit the needs of a litigant, while the latter is more reliable. Lastly, concerning petitioner’s assertion that he was never served with a copy of the order of the local administrator, we note that a copy thereof was served on his attorney, Thomas Kerrigan, and that this was sufficient (see CPLR 2103, subd [b]). Although petitioner maintains that he was not represented by the afore-mentioned attorney, his assertion is contradicted by a letter dated February 22, 1979 from Mr. Kerrigan to the Office of Rent Control, which plainly states that he was representing the petitioner in the instant proceeding. Hopkins, J. P., Titone, Rabin and Weinstein, JJ., concur.