Matter of Dixon v County of Albany (2021 NY Slip Op 01819)
Matter of Dixon v County of Albany
2021 NY Slip Op 01819 [192 AD3d 1428]
March 25, 2021
Appellate Division, Third Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 5, 2021
[*1]
In the Matter of Clifton M. Dixon,
Respondent,
v
County of Albany et al., Appellants, et al.,
Respondent.
Eugenia Condon, Acting County Attorney, Albany (Michael L. Goldstein of counsel), for
appellants.
Reynolds Fitzgerald, J. Appeal from a judgment of the Supreme Court (Hartman, J.), entered
October 23, 2019 in Albany County, which, among other things, partially granted petitioner's
application, in a proceeding pursuant to CPLR article 78, to prohibit the enforcement of a warrant
of eviction until after an affidavit of service was filed.
On August 26, 2019, Albany City Court (Reilly, J.) issued a warrant of eviction to remove
petitioner from 439 Manning Boulevard in the City of Albany, effective September 9, 2019. On
August 29, 2019, a deputy sheriff with respondent Albany County Sheriff's Department served
the warrant of eviction and notice of eviction upon petitioner via the "nail and mail" method of
service set forth in RPAPL 749 (2). Petitioner was removed from the premises on September 13,
2019. On the same day, petitioner filed an order to show cause seeking to restrain the Sheriff's
Department from removing him from the premises, alleging that it did not file proof of service of
the notice of eviction with the court within three days of service, as required by RPAPL 735 (2),
and, thus, service was not complete and the requisite 14-day waiting period before executing the