Deutsche Bank Natl. Trust Co. v Resnik

[*1] Deutsche Bank Natl. Trust Co. v Resnik 2009 NY Slip Op 51793(U) [24 Misc 3d 1238(A)] Decided on August 19, 2009 Nassau Dist Ct Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 19, 2009
Nassau Dist Ct

Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2003-HE2, Petitioner(s)

against

Mark Resnik, Nikki K. Resnik, "John Doe" And "Jane Doe", Respondent(s)



SP 02590/09



Lester & Associates, P.C., Attorneys for Respondent, 600 Old Country Road, Suite 229, Garden City, New York 11530, 516-357-9191; Steven J. Baum, P.C., Attorney for Petitioner, 220 Northpointe Parkway, Suite G, Amherst, New York 14228, 716-204-2400.

Scott Fairgrieve, J.

Respondents' Motion to Dismiss is granted. The relevant facts are as follows:

This case involves the sale of the Respondents', Mark Resnik, Nikki Resnik, John Doe, and Jane Doe (hereinafter "Respondent"), residential property located on 4 Open Street, Jericho, NY 11753. Petitioner, Deutsche Bank National Trust Company, As Trustee for Morgan Stanley ABS Capital I Inc, Trust 2003-HE2 (hereinafter "Petitioner"), acquired title to the said premises by virtue of a foreclosure sale held on February 24, 2009. The successful bidder at the sale was Wells Fargo Bank, N.A. Successor by Merger to Wells Fargo Home Mortgage, Inc., who subsequently assigned the bid to the Petitioner for the sum of $447,479.82, that being the highest sum bid. The acknowledgment of the assignment was included in the Referee's Report of Sale. (Affirmation in Opposition Exhibit C at 1). The assignment was reduced to writing shortly after the foreclosure sale on February 26, 2009. On April 10, 2009, a 10 Day Notice to Quit was served personally upon Mark Resnik, and substituted on Nikki Resnik. The Respondents failed to vacate the aforementioned premises; therefore, this summary proceeding was instituted by the Petitioner by the filing of a holdover petition against Respondents on April 21, 2009. The demands made in the Petition were for possession of the property, as well as fair value of Respondents' use and occupancy of the premises from February 24, 2009.

The Respondents now move for an order to dismiss the Petition claiming that the Petition is defective in several respects:

(1) it contains false and inaccurate facts. Specifically, the Respondents allege that the Petitioner could not have been conveyed title to the property in dispute because the Petitioner was [*2]assigned the bid on February 26, 2009, when it was reduced to writing, not February 24, 2009, as the Petition states.

(2) the Notice to Quit is jurisdictionally defective because the Notice to Quit did not include an affidavit of authority submitted by the Petitioner's counsel. In the alternative, if the said affidavit was in fact annexed to the Notice to Quit, it was signed by the Petitioner's attorney and there is no evidence that the Petitioner's counsel had authority to do so.

(3) the Referee's deed is invalid because the Petitioner was not assigned the bid at the time the deed was granted

(4) the Referee's deed was not exhibited to Respondents according to RPAPL Sec. 713-5.

The Court notes that generally an oral assignment of an interest in real property is not enforceable. However, in the case at bar, the actual written conveyance by the deed by the Referee dated February 24, 2009, to Petitioner, and the actual written assignment dated February 26, 2009, removes any problem and satisfies General Obligations Law Section 5-703. Thus, Respondents' argument is without merit.

Secondly, the Referee's deed was duly exhibited, by personal and substituted service, to all of the Respondents in accordance with RPAPL 713[5]. As stated in GRP/AG REO 2004-1, LLC v. Elieser Friedman, et al., 8 Misc 3d 317, 792 NYS2d 819 (Just Ct, Town of Ramapo, Rockland Cty 2005), a 10-day notice with a certified copy of the deed annexed and served upon an occupant by personal delivery or substituted service satisfies the statutory requirements. Similarly, in Novastar Mortgage, Inc. v. Michael Laforge, et al., 12 Misc 3d 1179(A), 824 NYS2d 764 (Sup Ct, Green Cty 2006), the court concluded that there is no requirement of personal exhibition of the referee's deed, and to import one would "create a higher standard of service for the notice and the deed than is needed for the notice of petition and petition" in an eviction proceeding. (quoting Bergman, NY Mortgage Foreclosures, supra , § 33.02[2] [2006].

In the case at bar, personal delivery to Respondent, Mark Resnik, as well as substituted service upon all of the other residents of the notice of petition and petition with the certified deed attached thereto was sufficient to satisfy the statutory requirements of RPAPL 713[5].

Thirdly, the Petition served by the Petitioner is jurisdictionally defective. As stated in Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 [2nd Dept. 1985]:

A notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in giving of such notice, is legally insufficient to terminate the tenancy. (Id.)

This principle has been followed in New York cases. For instance, in GMAC Mortgage [*3]Corp. v. Marie Toureau, et al., 15 Misc 3d 1139(A), 2007 WL 1526765 (Dist Ct, Nassau Cty 2007), involving eviction of occupants of premises after foreclosure proceedings, the court held that the 10 day notice was defective because the notice was executed by the Petitioner's attorney and there was no evidence that the attorney attached an authorization to the notice executed by the Petitioner.

In Fannie Mae v. Lindo, 177 Misc 2d 1003, 678 NYS2d 477 (Dist Ct, Nassau Cty 1998), the court held that a 10 day notice to quit served in a post foreclosure proceeding was defective where the notice was signed by the attorney for petitioner without any written authorization attached to the notice indicating that the attorney had authority to act.

In the instant case, the Petitioner has not submitted sufficient proof to verify that its attorney's affidavit of authority was annexed and served with the 10 day notice to quit; therefore, the Petition is jurisdictionally defective.

Lastly, Respondents' claim in regards to the invalidity of the Referee's deed is without merit.

In view of the foregoing, the Respondents' Motion to Dismiss is granted.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:August 19, 2009