                          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,
                    Respondent-
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DAVID A. DELLEHUNT, as Town
   Justice of the Town of
   Kinderhook and Village
   Justice of the Village of
   Kinderhook,
                    Appellant-
                    Respondent,
                    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
                              -2-                519194

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
