State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 19, 2015 519194 

________________________________

In the Matter of PAUL CZAJKA, 

as District Attorney of 

Columbia County,

RespondentAppellant,

v MEMORANDUM AND ORDER

DAVID A. DELLEHUNT, as Town

Justice of the Town of

Kinderhook and Village

Justice of the Village of

Kinderhook,

AppellantRespondent,

et al.,

Respondent.

________________________________

Calendar Date: January 6, 2015

Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Cooper Erving & Savage, LLP, Albany (David C. Rowley of

counsel), for appellant-respondent.

Paul Czajka, District Attorney, Hudson, pro se, and Powers

& Santola, LLP, Albany (Michael J. Hutter of counsel), for

respondent-appellant.

__________

Garry, J.P.

Cross appeals from a judgment of the Supreme Court (Dowd,

J.), entered August 12, 2013 in Columbia County, which, in a

combined proceeding pursuant to CPLR article 78 and action for
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declaratory judgment, granted a motion by respondent David A.

Dellehunt to vacate a judgment entered against him and dismissed

the petition.

Petitioner is the District Attorney of Columbia County, and

respondent David A. Dellehunt (hereinafter respondent) is the

Town Justice of the Town of Kinderhook and the Village Justice of

the Village of Kinderhook. In June 2012, an Assistant District

Attorney asked respondent to provide petitioner's office with a

copy of the electronic recording of proceedings held in

Kinderhook Village Court on June 4, 2012. Respondent promptly

denied this request, explaining that the procedure for obtaining

a transcript was to request that the Village Court forward the

recording to a designated transcriptionist. Subsequently, an

Assistant District Attorney made a written request for respondent

to transmit a recording of proceedings held on October 2, 2012 in

Kinderhook Town Court to a transcriptionist; in this instance,

there was no request for a copy of the recording. Respondent

requested that petitioner identify which of the 88 matters heard

on that date he wished to have transcribed, and petitioner

advised that he was seeking transcriptions of all cases. The

Clerk of the Kinderhook Town and Village Courts then allegedly

began reviewing the recording to identify which cases could be

transcribed in compliance with the Criminal Procedure Law.

In late December 2012, by order to show cause, petitioner

commenced this combined CPLR article 78 proceeding in the nature

of mandamus to compel and declaratory judgment action against

respondent in his capacity as Town Justice. The petition sought

an order directing respondent to transmit a recording of Town

Court proceedings on October 2, 2012 to a transcriptionist, and

to furnish petitioner with copies of such recordings and of "Town

Court" proceedings on June 4, 2012.1 The petition also sought a

declaration that respondent is not precluded by law from

providing petitioner's office with copies of recordings of Town

Court proceedings. Supreme Court (Doyle, J.) signed petitioner's

1 The reference to Town Court was apparently in error, as

there were proceedings conducted in Village Court on this date,

but not in Town Court. 
-3- 519194 

order to show cause on Friday, December 21, 2012, directing

service to be made by fax and overnight mail by 4:00 p.m. on the

following Monday, December 24, 2012, upon respondent in his

capacity as Town Justice, the Clerk of the Town Court, and the

attorney for the Town of Kinderhook. Opposing papers were 

required to be filed and faxed to Supreme Court by 4:00 p.m. on

Thursday, December 26, 2012.

The record contains no proof of service. However,

respondent acknowledges that the order to show cause and petition

were received by fax at the Town Court, with a cover sheet

addressed to respondent and the Clerk, at about 3:14 p.m. on

December 21, 2012. At about 3:27 p.m., a fax was received at the

Village Court, likewise directed to respondent and the Clerk. 

These papers – an order to show cause and petition – differed

from those that had been received at the Town Court in that the

handwritten word "Amended" had been added to the documents'

titles and the handwritten phrase "as Village Justice" had been

added to respondent's designation in the captions. Respondent

alleges that separate express mail packages containing the

original and amended documents were received at the Town Court on

December 26, 2012 and an unspecified date, and at the Village

Court on December 23 and 26, 2012. 

Respondent requested an adjournment to permit him to obtain

representation and prepare a response, and a representative of

petitioner's office advised Supreme Court in writing that

petitioner consented to an adjournment.2 The court denied this

request and, at approximately 5:00 p.m. on the return date of

December 26, 2012, issued a written decision granting the

petition and directing respondent to transmit a recording of the

October 2, 2012 Town Court proceedings to a transcriptionist, and

to provide petitioner with copies of recordings of Town Court

proceedings on June 4, 2012 and October 2, 2012. 

In January 2013, respondent moved by order to show cause

to, among other things, vacate the judgment, dismiss the combined

2 The attorneys for the Town and Village of Kinderhook both

had conflicts precluding their representation of respondent. 
-4- 519194 

proceeding and action in its entirety, and impose sanctions upon

petitioner. Supreme Court (Devine, J.) signed the order to show

cause and granted a temporary restraining order enjoining

petitioner from enforcing the judgment. In February 2013,

Supreme Court (Dowd, J.) granted respondent's motion, vacated the

judgment and dismissed the combined action and proceeding based

upon lack of personal jurisdiction. Petitioner and respondent

cross-appeal from this judgment.

We must briefly note that during the course of the

proceedings, petitioner received a transcript of the October 2012

Town Court proceeding from a transcriptionist. A matter becomes

moot when "a change in circumstances prevents a court from

rendering a decision that would effectively determine an actual

controversy" (Matter of Dreikausen v Zoning Bd. of Appeals of

City of Long Beach, 98 NY2d 165, 172 [2002]; accord Matter of

Kowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d

1475, 1477 [2012]). Here, actual controversies remain as to

petitioner's requests for recordings of the October 2012 and June

2012 proceedings, and as to respondent's request for sanctions. 

Further, petitioner alleges that the transcript he received is

incomplete and does not fully satisfy his request. Thus, the

cross appeals are not moot, as "the rights of the parties will be

directly affected by [their] determination" (Matter of Hearst

Corp. v Clyne, 50 NY2d 707, 714 [1980]). 

We find no merit in petitioner's challenge to the manner in

which Supreme Court (Dowd, J.) was assigned by respondent Unified

Court System (hereinafter UCS)3 to hear and determine

respondent's motion. The transfer of an action or proceeding,

where necessary due to recusals or other issues, is governed by

court rules (see 22 NYCRR 202.3 [c] [5]). Upon review, we find

nothing to demonstrate that the assignment here was improperly

made, no indication that either the assignment or the court's

subsequent determination of the motion was affected in any manner

or degree by UCS's status as an intervenor, and no suggestion of

3 UCS was granted permission to intervene and participated

in the proceedings in Supreme Court, supporting respondent's

position, but is not participating in this appeal. 
-5- 519194 

unfairness or bias (compare Mokay v Mokay, 111 AD3d 1175, 1178

[2013]; Douglas v Douglas, 281 AD2d 709, 710-711 [2001]). 

Next, petitioner argues that Supreme Court erred in

dismissing the petition for lack of personal jurisdiction. In so

doing, the court treated the amended order to show cause and

amended petition as the operative documents, and found that they

were not served in strict compliance with the directions in the

order to show cause, as there was no fax service of the amended

documents upon the Town Court and – in view of the absence of

proof of service and the late arrival of some of the express mail

parcels – no showing that they were timely served by mail. 

Accordingly, the court concluded that service was defective. 

On appeal, for the first time, petitioner claims that

Supreme Court erred in basing its determination upon the amended

petition and amended order to show cause rather than the original

documents, arguing that the amended documents are "nullit[ies]." 

Petitioner states in his brief that after the original order to

show cause and petition had been signed and filed, he served

"what purported to be an amended petition" that had been altered

without court authorization to add the phrase "as Village

Justice" to respondent's designation in the caption. Petitioner

states that "[t]his was done in the apparent belief that such

capacity was necessary to get full relief."4 Petitioner argues

that the alteration had the effect of adding a party – that is,

respondent in his capacity as Village Justice – and that, as he

did not obtain court leave to add a party (see CPLR 401), the

amended petition is a nullity. Thus, upon this appeal,

petitioner now contends that the original petition is the

operative document, and that Supreme Court erred in basing its

decision upon the amended documents – despite the fact that

petitioner had previously failed to advise the court or the other

parties of the unauthorized amendments and, thus, had held out

4 Notably, although petitioner acknowledges in his brief

that he served the altered documents, he does not specifically

admit or deny that he made these alterations. By adopting the

passive voice, he further avoids either fully accepting or

attributing responsibility for performing the underlying actions.
-6- 519194 

the altered order to show cause and petition as the operative

documents throughout the course of those prior proceedings.5

Now, upon this appeal, arguing that he complied with the service

directions in the original unaltered documents, petitioner

contends that the combined action and proceeding should not have

been dismissed.

We agree with petitioner that the amended petition was

rendered a nullity when it was altered to add a new party without

obtaining court leave as required by CPLR 401 (see Matter of

Barrett v Dutchess County Legislature, 38 AD3d 651, 653 [2007];

Matter of Board of Educ. of Fla. Union Free School Dist. v

DePace, 301 AD2d 521, 522 [2003], lv denied 99 NY2d 511 [2003];

Matter of Aries Striping v Hurley, 202 AD2d 578, 578 [1994]). We

do not, however, agree with petitioner's theory that the

unauthorized alterations should work to his advantage by

preventing dismissal of the original petition. Setting aside for

the moment the startling nature of the alterations and the

equally remarkable timing of this disclosure, petitioner has not

demonstrated that he strictly complied with the service

provisions in the original order to show cause, which were

identical to those in the altered version. Such provisions are

jurisdictional in nature, and failure to comply with each

specified requirement results in a lack of personal jurisdiction

over a respondent (see Matter of Bruno v Ackerson, 39 NY2d 718,

718-719 [1976]; U.S. Bank N.A. v Feliciano, 103 AD3d 791, 791

[2013]; Matter of Sahler v Callahan, 92 AD2d 976, 977 [1983]; see

also People ex rel. Holman v Cunningham, 73 AD3d 1298, 1299

[2010]). 

It was petitioner's burden to demonstrate that Supreme

Court acquired personal jurisdiction over respondent (see Matter

of Theodore T. [Charles T.], 78 AD3d 955, 956 [2012]; Hopkins v

5 In addition to petitioner's service of the altered

documents as though the amendments were authorized, the captions

on the documents that petitioner submitted to Supreme Court in

opposition to respondent's motion – including his affirmations –

include a designation of respondent in his capacity as Village

Justice.
-7- 519194 

Tinghino, 248 AD2d 794, 795 [1998]), but he failed to submit

affidavits of service or any other proof that would satisfy this

burden. Although respondent has acknowledged that the faxed

documents were timely received at the Town Court, the absence of

proof of service makes it impossible to determine whether

petitioner timely complied with the overnight mail requirements

(see Matter of Rotanelli v Board of Elections of Westchester

County, 109 AD3d 562, 563 [2013]). Moreover, it is undisputed

that no service of any kind was made on the attorney for the

Town, despite the requirement for such service. We reject

petitioner's argument that this failure should be excused because

the record reveals that the attorney for the Town was aware of

the order to show cause and petition. It is well established

that actual notice received by other means does not result in

jurisdiction upon a failure of service (see Macchia v Russo, 67

NY2d 592, 595 [1986]; Clarke v Smith, 98 AD3d 756, 756 [2012];

Matter of Gerdts v State of New York, 210 AD2d 645, 646 [1994],

lv dismissed and denied 85 NY2d 810, 856 [1995]). Further, we

find no merit in petitioner's contention that he substantially

complied with the service requirements, as "[s]trict compliance

with court-directed methods of service is necessary in order for

the court to obtain personal jurisdiction over a respondent"

(Matter of Keith X. v Kristin Y., 124 AD3d 1056, ___, 2015 NY

Slip Op 00429, *2 [2015]; see Bruno v Ackerson, 39 NY2d at 718). 

Petitioner's failure to comply with the service requirements in

the order to show cause resulted in a failure to obtain personal

jurisdiction over respondent. Accordingly, Supreme Court

properly vacated the judgment and dismissed the combined action

and proceeding. 

Turning to respondent's appeal, he contends that sanctions

should be imposed upon petitioner for frivolous conduct and that

petitioner should be directed to reimburse respondent's expenses

and counsel fees. Courts are vested with discretion to impose

costs and fees for frivolous conduct, and may also impose

sanctions (see 22 NYCRR 130-1.1). Conduct is frivolous when it

lacks legal merit or cannot be supported by a reasonable

argument, is undertaken to harass or injure another or to prolong

litigation unduly, or involves false statements of material fact

(see 22 NYCRR 130-1.1 [c]).
-8- 519194 

Respondent asserts that petitioner commenced the instant

combined action and proceeding as the culmination of a pattern of

harassment targeting respondent that had begun months earlier

when – after a disagreement with respondent as to the scope of

petitioner's prosecutorial authority – petitioner sought to

compel respondent's recusal from all criminal and Vehicle and

Traffic Law matters in Columbia County and filed more than 100 

motions for respondent's recusal, thus allegedly interfering with

the operation of the Town and Village Courts (see People v Chai,

37 Misc 3d 1203[A], 2012 NY Slip Op 51870[U] [Kinderhook Just Ct

2012]; People v Dorato, 37 Misc 3d 1208[A], 2012 NY Slip Op

51940[U] [Kinderhook Just Ct 2012]). Respondent contends that

petitioner's requests for recordings and a transcript stemmed

from these efforts and, further, that the proceeding wholly lacks

merit as he was providing the transcript of the October Town

Court proceedings and had so advised petitioner before the

petition was filed. Respondent notes that petitioner had never

previously requested a copy of the October 2012 recording, and

that the petition demands a copy of the June 2012 recording

although petitioner had not pursued that request after it was

denied six months earlier.6 Next, he contends that petitioner

deliberately timed the filing of the petition immediately before

a holiday and chose to use the expedited procedure of filing by

order to show cause – rather than a notice of petition with a

return date that, by statute, would have been set a minimum of 20

days after the filing date (see CPLR 7804 [c]) – to harass

respondent and increase the likelihood that he would default. 

Finally, respondent contends that sanctions, costs and

counsel fees should be imposed upon petitioner for his conduct in

altering the original order to show cause after it had been

signed and filed, altering the petition after it had been

verified and notarized, and holding the altered documents out

thereafter to two Supreme Court Justices and the parties with the

apparent intent of misleading them into believing that the

6 In Supreme Court, UCS supported respondent's position

that his denial of the June 2012 recording was consistent with

its policies, and supplied documentation of the underlying

policies.
-9- 519194 

amendments were authorized.7 In this regard, respondent states

that petitioner's actions caused the Village of Kinderhook to

believe that respondent, in his capacity as Village Justice, had

been properly joined as a party, with the result that the Village

assumed part of the cost of respondent's defense, expending

approximately $15,000 by the time the briefs were filed. 

Respondent argues that petitioner took these actions despite his

knowledge that the alterations were unauthorized and the Village

Justice was not properly a party, thus continuing his allegedly

frivolous conduct for an extended period (see 22 NYCRR 130-1.1

[c]). Respondent further notes that, although petitioner

acknowledged his conduct in the course of this appeal, he did so

solely to gain a perceived advantage in the litigation. It

certainly bears significant consideration that, as an elected

District Attorney, petitioner's apparent involvement here may be

deemed to constitute a substantial violation of the Rules of

Professional Conduct (compare Matter of Wisla, 291 AD2d 196, 199

[2002]; Matter of Rubenstein, 203 App Div 517, 519-520 [1922]). 

Petitioner argues that the sanction request is unjustified,

asserting, among other things, that his conduct was not

frivolous, that this combined action and proceeding is not

without merit in law or conducted for the purpose of harassment,

and that respondent's request for sanctions related to the

unauthorized alterations is unpreserved, as it was raised for the

first time on appeal. We find no merit whatsoever in this last

contention, as this claim could not have been fully preserved

because petitioner only first disclosed in his appellate brief

that the alterations had occurred.

 

An application for sanctions is addressed to the court's

discretion (see Navin v Mosquera, 30 AD3d 883, 883-884 [2006];

7 Although not clearly established, it appears upon review

that Supreme Court (Doyle, J.) was not advised of the

alterations. The decision that court rendered appears to have

been premised upon the original order to show cause and petition;

it did not mention the amended documents, did not include a

designation of respondent in his capacity as Village Justice, and

did not grant any relief related to that capacity. 
-10- 519194 

Matter of Rosenhain, 222 AD2d 745, 746 [1995], lv dismissed 87

NY2d 1053 [1996]). Here, Supreme Court did not address

respondent's request for sanctions, and made no findings in this

respect. Respondent urges that, at a minimum, an award be

rendered for reimbursement of the counsel fees and expenses made

necessary by petitioner's conduct.8 We are sympathetic to this

request – in particular as to the counsel fees that have been

expended, apparently wholly without any sound legal basis or

cause, by the Village of Kinderhook – but, nonetheless, we find

the factual record of the circumstances surrounding the

alteration of the order to show cause and petition to be

incompletely developed. At oral argument, petitioner requested a

hearing on this aspect of respondent's request for sanctions. A

formal hearing is not always required, "depend[ing] upon the

nature of the conduct and the circumstances of the case" (22

NYCRR 130-1.1 [d]). However, given the delayed nature of

petitioner's acknowledgment that the documents were altered, the

grave and disturbing nature of such conduct, and the lack of

factual findings in Supreme Court relative to all of the other

circumstances that respondent has alleged constitute a pattern of

frivolous and harassing conduct, we conclude that further factual

development will be helpful. Accordingly, we remit the matter of

sanctions to Supreme Court for the purpose of conducting a

hearing to develop the factual record as to petitioner's conduct

and the surrounding circumstances. 

Egan Jr., Lynch and Clark, JJ., concur.

8 This Court has the authority to impose sanctions in the

first instance, even when asked to do so for the first time on

appeal, provided that an express request has afforded notice that

such relief would be considered and, thus, provided a reasonable

opportunity to be heard on the issue (see Fox v Fox, 309 AD2d

1056, 1058-1059 [2003]; Matter of De Ruzzio v De Ruzzio, 287 AD2d

896, 897 [2001]).
-11- 519194 

ORDERED that the judgment is modified, on the law, without

costs, by remitting the matter to the Supreme Court for further

proceedings not inconsistent with this Court's decision, and, as

so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court