Carbone v Hurdle

[*1] Carbone v Hurdle 2012 NY Slip Op 52341(U) Decided on December 20, 2012 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2012
District Court of Nassau County, First District

Russell Carbone, Petitioner(s)

against

Lavina Hurdle, "JOHN DOE" and "JANE DOE,", Respondent(s)



LT-004605-12



Russell Carbone, Petitioner pro se, 146 Beech 9th Street, 3C, Far Rockaway, New York 11691, 347-206-6481; Lavina Hurdle, Respondent pro se, 250 Erie Road, West Hempstead, New York 11552.

Scott Fairgrieve, J.

DECISION AFTER TRIAL

Petitioner Russell Carbone has commenced this holdover proceeding against Respondent Lavina Hurdle to recover possession of 250 Erie Road, West Hempstead, New York. Paragraph No.2 of the Petition alleges that Respondent is a licensee who entered into possession under a "rental agreement between Respondent as licensee and Petitioner as landlord." Paragraph #4 of the Petition claims that the Lease expired on August 19, 2002 and Respondent continues to holdover. Respondent was served with a 10 day notice to vacate by August 19, 2012.

Respondent contends that Petitioner cannot maintain this summary proceeding because he does not have title to the premises. Respondent claims that her sister Elise Martin owns the said premises and that the transfer of same to Petitioner by using a Power of Attorney signed by Elise Martin is void.

TESTIMONY

Petitioner testified that he hired Moses Crawford of Payment Reduction Services to act as his representative to purchase the said premises in or about September of 2011. Petitioner and Moses Crawford had a prior business relationship involving the purchase of three or four properties. Moses Crawford brought the deal involving Elise Martin to the attention of [*2]Petitioner. Elise Martin was in financial distress because she was in arrears in paying the mortgage on her premises to Chase. A Power of Attorney was prepared by Moses Crawford and sent to Elise Martin at 535 Edgecliff Lane, Evans, Georgia 30809. Elise Martin (sister of Respondent and owner of the said premises) testified that she received the Power of Attorney in Georgia and executed the Power of Attorney, with a date of October 5, 2011, in Georgia. The Power of Attorney was blank (according to Elise Martin) when she executed same. In other words, the name of Russell (misspelled on Power) Carbone was not present as the attorney-in-fact. The Power of Attorney was notarized in New York before Lisa Price who indicated that Elise Martin personally appeared before her. Elise Martin testified that she supplied her drivers license to the notary in New York. This testimony was not contradicted by Petitioner.

Petitioner executed the Quitclaim Deed, dated November 9, 2011, using the Power of Attorney to transfer the title from Elise Martin to himself. The Quitclaim Deed reads in part:

/s/

Signature of Grantor

Elise Martin

by:Russell Carbone

Attorney in Fact

Power of Attorney Recorded 11/2/2011

Petitioner never met Respondent nor talked to her on the phone concerning the transfer of ownership. Mr. Crawford never told her about the transfer of the property.

Elise Martin testified that she gave the Power of Attorney to Moses Crawford so he could use same to negotiate with Chase. Elise Martin specifically denies authorizing the Power of Attorney to be employed to transfer title from her name to Petitioner.

Ms. Martin testified that she had the following agreement with Moses Crawford as follows: Q.Okay. Could you explain to the Judge how we got here today? What this is all about, and your property?A.Yes, I can. In November of 2011 — well before then [inaudible] I met Mr. Moses Crawford. He was supposed to be doing a modification for me. I have a mortgage with Chase. My house is in foreclosure. And he was supposed to be doing a modification for me. What we first tried to do was do a short sale. People started visiting the house, and it wasn't in agreement with Chase. Let's say that they offered 265. Chase wanted more than 265. Before I met Mr. Moses I had people renting from me. And then they moved out. Like I said, my house was in foreclosure. So they wouldn't agree with the short sale that Mr. Moses was trying to do. [*3]So he advised me, maybe he could try to rent the house out for me.

* * * A.Go ahead? Okay. So where was I? Okay, so he was supposed to be doing a short sale. The short sale did not go through. The house — I needed income to come in. So Mr. Moses suggested that he rent the house out until the market turned back around. And tried to do a modification with Chase during the meantime. I agreed to that. He sent me documents, Your Honor, but they were blank. I did sign blank documents. And I still, up until today, don't have copies of those documents that I signed. And

She only found out that the said premises had been transferred out of her name when she sent a friend to the Nassau Clerk's office in July of 2012.

Ms. Martin had conversations with Moses Crawford in October 2011 about the property:

Q.And did Mr. Crawford explain why he needed a power of attorney form?

A.To do the transaction that he was doing with Chase. He was representing me with Chase. He was able to talk to Chase and do the paper work and stuff.

Q.And what transaction was he doing with Chase?

A.Trying to sell the house. Trying to do a modification. And trying to do a short sale. He was representing me, Your Honor. So I thought he was representing me.

Petitioner introduced into evidence the General Agreement dated December 14, 2011, to bolster his case that an agreement was reached with Elise Martin concerning the sale of the premises. The said Agreement was prepared by Petitioner. The General Agreement reads as follows: THIS AGREEMENT made this 14th day of December, 2011 (year),by and between Russell Carbone (First Party),and Elise Martin (Second Party),WITNESSETH: That in consideration of the mutual covenants and agreements to be kept and performed on the part of said parties hereto, respectively as herein stated, the said party of the first part does hereby covenant and agree that it shall: regarding 250 Erie Road, West Hempstead, New York pay $5,000 cash to Elise Martin on or about January 31, 2012 (leaving remainder of $15,000 on balloon Mortgage Agreement) $5,000 payment to be effectuated at direction of Ms. Martin e.g. bank, wire, cash et.II.And said party of the second part covenants and agrees that it shall:Re: 250 ErieRd. West HempsteadHave 1st story apartment - now housing day care completely vacant - including vacating, garage, Livinia and Vicky and all others at least one day before said date.III.Other terms to be observed by and between the parties:[*4]Payment shall be paid immediately upon the 1st floor premises being vacated and broom swept. Elise Martin makes no claim additional other than balloon mortgage.This agreement shall be binding upon the parties, their successors, assigns and personal representatives. Time is of the essence on all undertakings. This agreement shall be enforced under the laws of the State ofThis is the entire agreement.Signed the day and year first above written.Signed in the presence of:

/s//s/ Witness Galyna CoutureFirst PartyRussell Carbone

/s//s/ WitnessSecond PartyElise Martin

Elise Martin denies entering into the General Agreement with the terms set forth above. She admitted that she signed the General Agreement but no terms were set forth. Elise Martin claimed that she was stupid in signing the General Agreement in blank. The General Agreement was sent to her by Moses Crawford.

On rebuttal, Petitioner introduced another copy of the General Agreement dated December 14, 2011, to demonstrate that Elise Martin was inaccurate in claiming that the General Agreement did not contain the terms when she signed same. The General Agreement contains the terms and the signature of Russell Carbone but no signature of Elise Martin. The General Agreement was then sent to Elise Martin for her signature.

A comparison of the two documents demonstrates that the two documents are not the same. The General Agreement which Elise Martin signed has the word garage handwritten into the text whereas the General Agreement supplied by Petitioner on rebuttal does not contain the word garage.

Petitioner claims that during the summer of 2012 he gave $2,500 to Moses Crawford to send to Elise Martin but she denies receiving any such sum.

Elise Martin testified that Moses Crawford arranged for the rental of the premises to Donna Welsh for which she paid $2,000 per month. Donna Welch moved into the premises in November of 2011. Elise Martin received $500 per month from the rental and the remainder of the money was to be paid to Chase until the property was sold. Elise Martin introduced check #1226 and dated 12/3/2011 from Payment Reduction [*5]

Services (Moses Crawford's employer) in the amount of $500 to demonstrate the rental arrangement. Respondent also introduced statements from Bethpage Federal Credit Union showing deposits of $500 for May of 2012 and June of 2012.

Petitioner contends that the property was sold to him for the sum of $20,000 and that he would deal with Chase on the mortgage arrears. The terms of the sale were contained in the General Agreement.

Elise Martin admitted that she wanted to sell the property for $20,000 but this was never consummated according to her testimony.

Elise Martin referred the transfer of the property to the Nassau County District Attorney office. Petitioner brought out that Elise Martin told the District Attorney that she didn't sign the Power of Attorney which now admits signing. The District Attorney refused to take any action on her complaint concerning the property transfer.

According to the testimony, a judgment of foreclosure has been entered but no foreclosure sale transferring title has been effectuated.

Also introduced was the email from Elise Jones to Russell Carbone, dated July 17, 2012, which states:

Hey Russell,

This Elise from 250 Erie Road West Hempstead NY 11552 concerning past rent for May and June. Ms. Donna made a deposit on Thursday July 5,2012 and I have yet to received the $1000.00 in my bank account. Mr. Moses has been promising to put the funds my account since Friday July 6,2012. I have been very patient and I would appreciate you resolving this matter as soon as possible. Please give me a call on my cell to further discuss this matter (phone number not set forth by court).

Regards,

Elise Martin-Jones

This email was confirmed by both parties as being exchanged.

Respondent Lavina Hurdle testified that she operates a child day care center at the premises. Respondent took over operation of the day care center when her sister Elise Martin moved to Georgia in 2011. Introduced into evidence was the New York State Office of Children and Family Services Group Family Day Care license issued to Elise H. Martin for the business known as Positive Beginnings, Inc. for the location at 250 Erie Road, West Hempstead, NY [*6]11552. The license was effective 01/05/2011 for 12 children, ages 6 weeks to 12 years, and 4 additional school-aged children. Respondent denies having any oral or written lease agreement with Petitioner. Respondent never had any contact with Petitioner concerning the rental of the premises.

Elise Martin never authorized eviction proceedings to be commenced against Respondent.

This court informed Petitioner that it would consider an adverse inference charge against Petitioner's position if he failed to have Moses Crawford testify concerning the highly disputed issues. Petitioner choose not to produce Moses Crawford. This court offered Petitioner the opportunity at the end of the trial to call another witness but Petitioner declined.

Respondent questioned Petitioner about being a disbarred attorney. Petitioner admitted that he was disbarred in 1999 because he was convicted of obstruction of justice. Petitioner admitted to inappropriately coaching a witness in a Federal Narcotics case on how to testify. Petitioner is still disbarred.

ISSUES PRESENTED

(1).Does this court have jurisdiction to determine possession when lack of title is raised as a defense?

This court has the authority to resolve this unique set of facts to determine possession in the context of this summary proceeding when the Respondent raises the issue that Petitioner is not the owner of the property. David D. Siegel writes, in the Practice Commentaries to UDCA § 204 that: The summary proceeding tries only the immediate right to possession, not title, and yet a title question will sometimes crop up in the context of a summary proceeding. The judge should proceed to adjudicate possession, making that adjudication with whatever incidental disposition of the title issue seems necessary. Whether the title determination is binding must then be resolved as a question of res judicata. Refusing to entertain the summary proceeding at all merely because a party has interposed a title issue can readily frustrate the "summary" nature of the summary proceeding. There are other remedies to meet the problem (See Siegel, New York Practice [2d Ed.,] § 469).

Hon. Robert F. Dolan in Rasch's Landlord & Tenant (4th ed), vol. 3, Section 43:20 entitled "Effect on Jurisdiction", notes that the District Court is not ousted of jurisdiction because the tenant denies the landlord's title: It is well settled, however, that these inferior courts are not ousted of [*7]jurisdiction of summary proceedings because the question of title may be raised therein by a tenant's denial of his landlord's title; for a summary proceeding is not an action but a special proceeding. Moreover, the real issue in the proceeding is the present right to possession; the question of title is only collaterally involved.

See also Muzio v. Rogers, 20 Misc 3d 143(A), 867 N.Y.S.2d 376, 2008 WL 3874712 (NY Sup. App. Term 9th & 10th Jud. Dists. 2008) wherein the Court held a question of title can be raised as a defense to a summary proceeding and be determined by the District Court.

Thus, this court has jurisdiction to render a decision in this matter.

(2).Does Petitioner have standing to maintain this summary proceeding?

This court as the trier of the facts determines issuse of credibility. See Lelekakis v. Kamamis, 41 AD3d 662, 839 NYS2d 773, 2007 Slip Op 05474 (2nd Dep't, 2007).

This court credits Elise Martin's testimony that she did not authorize the transfer but only executed the Power of Attorney to allow Moses Crawford to deal with Chase. In determining credibility, the court credits the testimony of Elise Martin that she did not authorize the transfer of title to Petitioner. This court rejects Petitioner's testimony on this issue as not credible. Petitioner is a disbarred attorney who admits coaxing fake testimony during a Federal Narcotics trial. Thus, this court concludes that Petitioner lacks the authority to evict Respondent due to the improper transfer of title. Since title was not properly transferred to Petitioner, he lacks standing and his proceeding must be dismissed.

(3).Whether dismissal of proceeding due to classifying respondent as both licensee and tenant is required.

Even if the court were to conclude that Petitioner was the legitimate owner of the premises this proceeding would still have to be dismissed because Petitioner has categorized Respondent as a "Licensee and Petitioner as Landlord, and Respondent has continued in possession thereof pursuant to said rental agreement," see paragraph #2 of the holdover Petition.

Based upon the testimony, Respondent operates a licensed day care center as a tenant and not a licensee. See Federation of Organizations v. Bauer, 6 Misc 3d 10, 788 N.Y.S.2d 806 (App. Term, 9th & 10th Jud. Dists. 2004), and Rodriguez v. Greco, 31 Misc 3d 136(A), 2011 WL 1532124 (App. Term, 9th & 10th Jud. Dists. 2009).

If Petitioner properly became the owner of the premises, then he would have become the landlord by operation of law with all the rights and remedies of the original landlord. See Ballesteros v. Rosello, 183 Misc 2d 448, 703 N.Y.S.2d 686, and Island Properties v. Muzio, 2002 WL 31956102 (App. Term, 9th & 10 Jud. Dists 2002). [*8]

In Rodriguez v. Greco, 31 Misc 3d 136(A), 927 N.Y.S.2d 819 (App. Term, 9th & 10th Jud. Dists. 2009), the court held that the respondent was a tenant and not licensee and thus service of a 10 day notice upon the respondent was insufficient. Service of a 30 day notice to terminate the tenancy was required. See Real Property Law § 228; Vitarelle v. Vitarelle, 21 Misc 3d 130(A), 2008 NY Slip Op 52045(U) [App. Term, 9th & 10th Jud. Dists. 2008], and the 10-day notice to quit is an inadequate predicate to this proceeding (see UHAB HDFC v. Diaz, 10 Misc 3d 130[A], 2005 NY Slip Op 51957[U] [App. Term, 1st Dept. 2005]).

Based upon the foregoing, service of the 10 day notice was insufficient notice to evict Respondent who is a tenant and not a licensee.

(4).Is the transfer of the real property defective due to improper acknowledgement of the Power of Attorney?

Elise Martin testified that Moses Crawford sent the Power of Attorney to her in Georgia. Elise Martin executed the Power of Attorney in Georgia and sent the Power of Attorney back to New York where it was notarized. Petitioner used the Power of Attorney to transfer Elise Martin's property to himself by Quitclaim Deed.

The purpose of an acknowledgment is explained as follows in NY Jur. 2d Acknowledgment § 2: An acknowledgment is more than a statement of fact; it is an actual voucher, attestation, or warrant that the information being certified is true. A court will not presume that the statutory requirement of certification is meaningless. An acknowledgment gives solemnity to the execution of the instrument so as to entitle it not only to be recorded, but also to authorize its introduction in evidence without further proof of its execution.Acknowledgments are used where the person to whom the paper is to be presented may not otherwise know the genuineness of the signature attached or affixed to the paper. Recording officers must have proof of the genuineness of deeds or other instruments evidencing conveyances of real property before they can record them in their offices, and this proof is obtained by means of the certificate of acknowledgment. While an acknowledgment is an authentication or verification of the signature of a person to a particular instrument, it does not extend to the instrument itself. It establishes merely that the instrument was duly signed and proves the identity of the person whose name appears on the instrument and that that person signed it.In New York, the taking of the proof or acknowledgment of the execution of a deed is not a judicial act, but is ministerial only.[*9]

The Power of Attorney executed in Georgia and notarized in New York is defective and cannot serve as a basis to transfer the Martin property. See 91 NY Jur. 2d Real Property Sales & Exchanges § 108, wherein the following is stated: A title to real property is unmarketable where it is based on a deed so defectively acknowledged that it is not entitled to record or on a defective acknowledgment to a power of attorney.

The following case law supports this court's ruling that the Power of Attorney cannot be relied upon to transfer the property to Petitioner. See Freedman v. Oppenheim, 80 A.D. 487, 81 N.Y.S. 110 (2nd Dep't 1903); Bruno v. Sickler, 16 Misc 3d 114(A), 847 N.Y.S.2d 895 (NY Dist. Ct. 2007); and Moran v. Stader, 52 Misc. 385, 103 N.Y.S. 175 (City Ct. of New York 1907).

Since Petitioner fails to have proper title to the said premises, this summary proceeding cannot proceed and is dismissed with prejudice.

(5).Should this court draw an adverse inference against Petitioner for his failure to call his agent Moses Crawford to testify?

In addition to the foregoing, the failure of Petitioner to call his agent Moses Crawford reinforces this court's view that Elise Martin did not authorize transfer of the ownership of her property. See 3657 Realty Co., LLC v. Jones, 18 Misc 3d 82, 852 N.Y.S.2d 570 (App. Term 1st Dep't 2007).

This court gave adequate notice to Petitioner that an adverse inference may be drawn if Moses Crawford was not produced unlike the situation in People v. Magett, 196 AD2d 62, 608 N.Y.S.2d 434 (1st Dep't 1994) wherein the trial court failed to give adequate warning to the defendant that an adverse inference may be drawn upon failure to produce his step sister.

CONCLUSION

(1)This court has jurisdiction to determine title in the context of a summary proceeding regarding right to possession.

(2)Petitioner was not authorized to commence this summary proceeding because Elise Martin never authorized the transfer of the premises by a Power of Attorney.

(3)Petitioner was required to serve a 30 day notice upon Respondent who is a tenant and not a licensee.

(4)Since the Power of Attorney was defectively notarized, the Petitioner lacked the authority to transfer the property to himself by quitclaim deed. [*10]

(5)This court's decision is reinforced by the adverse inference drawn against Petitioner for failure to call his agent to testify.

(6)Based upon the foregoing, this summary proceeding is dismissed with prejudice.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:December 20, 2012