Parkash v Almonte

[*1] Parkash v Almonte 2013 NY Slip Op 23197 Decided on June 18, 2013 Civil Court Of The City Of New York, Bronx County Avery, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 18, 2013
Civil Court of the City of New York, Bronx County

Ved Parkash, Petitioner,

against

Rafael L Almonte, and MARICELA NIVAR, Respondent(s). VED PARKASH, Petitioner, ARNALDO RODRIGUEZ, Respondent(s). VED PARKASH, Petitioner, ANGEL NOBOA TEJEDA, Respondent(s). VED PARKASH, Petitioner, ROSA M. RIVERA, Respondent(s). PARKASH 180 LLC, Petitioner, JOSEPH MARTE, and YOKAIRA MARTE, Respondent(s). PARKASH 180 LLC, Petitioner, MERCEDES E. ROLLERI, Respondent(s). PARKASH 1718 LLC, Petitioner, DAISY BERRIDO, Respondent(s). PARKASH 1718 LLC, Petitioner, ROSANA SUAREZ, Respondent(s). PARKASH 2115 LLC, Petitioner, MARTHA GONZALEZ, Respondent(s). PARKASH 2165 LLC, Petitioner, VANESSA MARIS RODRIGUEZ, Respondent(s). PARKASH 2165 LLC, Petitioner, SOLANGE M. GUERRERO, Respondent(s). VED PARKASH, Petitioner, FLOR M. RUIZ, Respondent(s). PARKASH 2625 LLC Petitioner, DARIEL MEJIA, and JOEL T. VASQUEZ, Respondent(s). PARKASH 190 LLC, Petitioner, ROSALIND DAWSON-SAUNDERS, Respondent(s). VED PARKASH, Petitioner, FRANCES FULGENCIO, Respondent(s). VED PARKASH, Petitioner, JOSE DIAZ, and DORA M. CALDERON, Respondent(s). VED PARKASH, Petitioner, SILVA M. PETRUS, Respondent(s). PARKASH 197 LLC, Petitioner, YESSICA DE FERRI, Respondent(s). VED PARKASH, Petitioner, JENNIFER MOSCOSO, and CRISMELY Y. TAVAREZ, Respondent(s). VED PARKASH, Petitioner, BARBARA A. ROSA, and MIGUEL A. ROSA, Respondent(s). PARKASH 3990 LLC, Petitioner, JAMISON T. BOWMAN, Respondent(s). PARKASH 4769 LLC, Petitioner, GEORGE R. MYERS, Respondent(s). PARKASH 4769 LLC, Petitioner, JASON R. WILLIAMS, Respondent(s). PARKASH 242 LLC, Petitioner, TEOFILO PONCE, Respondent(s). PARKASH 242 LLC, Petitioner, SUZETTE S. POWELL, Respondent(s).



VED PARKASH, Petitioner,

against

ARNALDO RODRIGUEZ, Respondent(s).



L & T 22722/13



Anurag Parkash, Esq., 172-14 89th Avenue, Jamaica, NY 11432

Amjad Farhat, c/o Anurag Parkash, Esq., 172-14v 89th Avenue, Jamaica, NY 11432

Raphael L. Almonte and Maricela Navir 750 Grand Concourse, Apt 1L Bronx, NY 10451

Arnaldo Rodriguez 825 Gerard Avenue, Apt 4H Bronx, NY 10451

Angel Noboa Tejeda 825 Gerard Avenue, Apt 4K, Bronx, NY 10451

Rosa M. Rivera 825 Gerard Avenue, Apt 2J, Bronx, NY 10451

Joseph Marte and Yokaira Marte 180 East 163 St, Apt 6A, Bronx, NY 10451

Mercedes E. Rolleri 180 East 163 St, Apt 6H, Bronx, NY 10451

Daisy Berrido 1718 Grand Ave, Apt 6B, Bronx, NY 10453

Rosana Suarez 1718 Grand Ave, Apt 6J, Bronx, NY 10453

Martha Gonzalez 2115 Ryer Ave, Apt A45, Bronx, NY 10457

Vanessea A. Maris Rodriguez 2165 Ryer Ave, Apt 1C, Bronx, NY10457

Solange M. Guerrero 2165 Ryer Ave, Apt 6H, Bronx, NY 10457

Flor M. Ruiz 2260 University Ave, Apt 5C, Bronx, NY 10468

Dariel Mejia and Joel T. Vasquez 2625 Grand Concourse, Apt 6D, Bronx, NY 10468

Rosalind Dawson-Saunders 58 East 190 Street, Apt 5A Bronx, NY 10468

Frances Fulgencio 50 East 191 Street, Apt 5H, Bronx, NY 10468

Jose Diaz and Dora M. Calderon 50 East 191 St, Apt 3H, Bronx, NY 10468

Silva M. Petrus 50 East 191 Street, Apt 5S, Bronx, NY 10468

Yessica De Ferri 165 West 197 Street, Apt 4L, Bronx, NY 10468

Jennifer Moscoso and Crismely Y. Tavarez 3525 Perry Ave, Apt 7B, Bronx, NY 10467

Barbara A. Rosa and Miguel A. Rosa 3764 Bronx Blvd, Apt 5H, Bronx, NY 10467

Jamison T. Bowman 3990 Bronx Boulevard, Apt 5F, Bronx, NY 10466

George R Myers 4769 White Plains Road, Apt 4J Bronx, NY 10470 Jason R. Williams 4769 White Plains Road, Apt 1E Bronx, NY 10470

Teofilo Ponce 707 East 242 Street, Apt 2H Bronx, NY 10470

Suzette S. Powell 735 East 242 Street, Apt 4A Bronx, NY 10470

Susan Avery, J.

Petitioners commenced the instant twenty-five (25) summary non payment proceedings seeking possession of residential premises located throughout Bronx County. Each proceeding is premised upon the allegation that each respondent failed to pay rent. Petitioners now separately move, in each of the above captioned cases, for the entry of a default judgment and the issuance of a warrant of eviction, based upon the allegations that at the time of submission of each application, each respondent failed to appear or answer the petition and each remained in rental arrears.

MILITARY INVESTIGATION PRIOR TO DEFAULT JUDGMENT

As relevant to the instant decision, in housing court summary non-payment proceedings [FN1] Federal Law [FN2] and New York State Law [FN3] require that, prior to the court signing a default judgment, a petitioner must submit an affidavit, stating that each respondent is not in active military duty or dependent on anyone in active military duty. A petitioner must comply with [*2]both the Federal and State requirements.[FN4]

CONSOLIDATION

Each of the thirty-one (31) affidavits of military status submitted for each of the twenty-five (25) above captioned cases [FN5] read identically, except as to names and times. Each is sworn to by the same individual, notarized by the same notary and sworn to on the same date. Each investigation as to each respondent's military status or dependency, is alleged to have been conducted personally, with twenty-five (25) different named respondents, all on May 3, 2013, and all within a three (3) hour and seven (7) minute time span.[FN6] Each affidavit concludes that each respondent is not in active military service or dependant on anyone in active military duty. As a result, this court is given pause, to make further inquiry as to the veracity of the allegations in the affidavits.[FN7] Accordingly, this court consolidates these matters solely for purposes of the instant submissions, and issues the instant interim decision.

PURPOSE OF MILITARY INVESTIGATION

As relevant to the instant decision, the military laws provide for a restraint against eviction during the period of military service with respect to premises occupied by persons in active military service or their dependents in actions or proceedings affecting the right of possession.[FN8] The purpose of both state and federal statutes restricting a landlord's right to evict individuals in active military duty, or their dependents is to protect individuals serving in the military from a default judgment being entered against them without their knowledge.[FN9] The fundamental goal of each act is to protect the rights of service members and their dependents while service members actively serve their country, so that they may devote all of their energy to [*3]the defense of the nation without distraction.[FN10]

In compliance with the foregoing, courts must be "meticulous with respect to the protection of the rights accorded individuals in active military service, and those persons dependent upon those actively engaged in such service"[FN11] as "[m]ilitary personal who have been defending the country should not return home only to find that, in fact, they have no home."[FN12] Accordingly, the acts are to "be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation."[FN13]

Based upon the forgoing, an affidavit submitted by a petitioner stating that a respondent is not in active military duty or dependent on anyone in active military service, must demonstrate sufficient facts to support the claim. And upon a petitioner's failure to do so, a default judgment may not be entered.[FN14]

AFFIDAVITS OF MILITARY STATUS SUBMITTED HEREIN

Cause for concern to this court, is that, in each of the thirty-one (31) affidavits of non-military status, submitted in support of each petitioners' application for the entry of a default judgment and issuance of a warrant of eviction, the affiant, Amjad Farhat, states [FN15] that on May 3, 2013, at: [1]"6:05 PM I went to the premises at 750 Grand Concourse, Apt 1L, Bronx, NY 10451 and had a conversation with Raphael L. Almonte ..."[2]"6:05 PM I went to the premises at 750 Grand Concourse, Apt 1L, Bronx, NY 10451 and had a conversation with Raphael L. Almonte ... [as to

Maricela Navir co-respondent] ..." [3]"6:12 PM I went to the premises at 825 Gerard Avenue, Apt 4H, Bronx, NY 10451 and had a conversation with Arnaldo Rodriguez ..."[4]"6:14 PM I went to the premises at 825 Gerard Avenue, Apt 4K, Bronx, NY 10451 and had a conversation with Angel Noboa Tejeda ..."[5]"6:16 PM I went to the premises at 825 Gerard Avenue, Apt 2J, Bronx, NY 10451 and had a conversation with Rosa M. Rivera..."[6]"6:31 PM I went to the premises at 180 East 163 St, Apt 6A, Bronx, NY 10451 and had a conversation with Joseph Marte..."

[7]"6:31 PM I went to the premises at 180 East 163 St, Apt 6A, Bronx, NY 10451 and had a conversation with Joseph Marte...[as to Yokaira Marte

co-respondent] ...."

[8]"6:33 PM I went to the premises at 180 East 163 St, Apt 6H, Bronx, NY 10451 and had a conversation with Mercedes E. Rolleri..." [9]"6:41 PM I went to the premises at 1718 Grand Ave, Apt 6B, Bronx, NY 10453 and had a conversation with Daisy Berrido..."

[10]"6:43 PM I went to the premises at 1718 Grand Ave, Apt 6J, Bronx, NY 10453 and had a conversation with Rosana Suarez..." [11]"7:00 PM I went to the premises at 2115 Ryer Ave, Apt A45, Bronx, NY 10457 and had a conversation with Martha Gonzalez..."[12]"7:07 PM I went to the premises at 2165 Ryer Ave, Apt 1C, Bronx, NY 10457 and had a conversation with Vanessea A. Maris Rodriguez..."[13]"7:11 PM I went to the premises at 2165 Ryer Ave, Apt 6H, Bronx, NY 10457 and had a conversation with Solange M. Guerrero..."[14]"7:20 PM I went to the premises at 2260 University Ave, Apt 5C, Bronx, NY 10468 and had a conversation with Flor M. Ruiz..."[15]"7:38 PM I went to the premises at 2625 Grand Concourse, Apt 6D, Bronx, NY 10468 and had a conversation with Dariel Mejia...."[16]"7:38 PM I went to the premises at 2625 Grand Concourse, Apt 6D, Bronx, NY 10468 and had a conversation with Dariel Mejia....[as to Joel T.

Vasquez co-respondent]..."

[17]"7:48 PM I went to the premises at 58 East 190 Street, Apt 5A Bronx, NY 10468 and had a conversation with Rosalind Dawson-Saunders..." [18]"7:55 PM I went to the premises at 50 East 191 Street, Apt 5H, Bronx, NY 10468 [*4]and had a conversation with Frances Fulgencio..."[19]"7:57 PM I went to the premises at 50 East 191 St, Apt 3H, Bronx, NY 10468 and had a conversation with Jose Diaz..."[20]"7:57 PM I went to the premises at 50 East 191 St, Apt 3H, Bronx, NY 10468 and had a conversation with Jose Diaz...[as to Dora M. Calderon co-respondent] ..." [21]"8:02 PM I went to the premises at 50 East 191 Street, Apt 5S, Bronx, NY 10468 and had a conversation with Silva M. Petrus..."[FN16] [22]"8:11 PM I went to the premises at 165 West 197 Street, Apt 4L, Bronx, NY 10468 and had a conversation with Yessica De Ferri..."[23]"8:30 PM I went to the premises at 3525 Perry Ave, Apt 7B, Bronx, NY 10467 and had a conversation with Jennifer Moscoso..."[24]"8:30 PM I went to the premises at 3525 Perry Ave, Apt 7B, Bronx, NY 10467 and had a conversation with Jennifer Moscoso...[as to Crismely Y.

Tavarez co-respondent]..." [25]"8:38 PM I went to the premises at 3764 Bronx Blvd, Apt 5H, Bronx, NY 10467 and had a conversation with Barbara A. Rosa..."[26]"8:38 PM I went to the premises at 3764 Bronx Blvd, Apt 5H, Bronx, NY 10467 and had a conversation with Barbara A. Rosa...[as to Miguel A. Rosa

co-respondent]..." [27]"8:46 PM I went to the premises at 3990 Bronx Boulevard, Apt 5F, Bronx, NY 10466 and had a conversation with Jamison T. Bowman..."[28]"8:56 PM I went to the premises at 4769 White Plains Road, Apt 4J, Bronx, NY 10470 and had a conversation with George R Myers..."[29]"8:58 PM I went to the premises at 4769 White Plains Road, Apt 1E, Bronx, NY 10470 and had a conversation with Jason R. Williams..."[30]"9:05 PM I went to the premises at 707 East Street [FN17], Apt 2H, Bronx, NY 10470 [*5]and had a conversation with Teofilo Ponce ..."

[31]"9:12 PM I went to the premises at 735 East 242 Street, Apt 4A, Bronx, NY 10470 and had a conversation with Suzette S. Powell..."

Each affidavit concludes as follows:

"Sworn to before me on

May 4, 2013 _/s/ Amjad Farhat________

LicNo.1341911

Richmond NY

_____/s/ Cheryl Marsh______

Notary Public"

Taking the affidavits at face value, each, separately appears to be facially sufficient.[FN18] However, given the statements that the affiant visited twenty-five (25) different premises, made thirty-one (31) different inquires in eight (8) different zip codes at nineteen (19) different apartment buildings and had a personal conversation with twenty-five (25) different named respondents, over the course of three (3) hours and seven (7) minutes, this court is compelled to conduct further inquiry, as false statements of nonmilitary service of a tenant by a landlord violates the statutes.[FN19]

Accordingly, this court holds in abeyance, a determination on the instant submissions, pending the outcome of the below ordered hearing.

PRECEDENT

Precedent dictates that this court is required to make further inquiry as to the veracity of the statements made in the affidavits of military status. "[T]he fact that respondents were readily found personally for the purposes of the non-military affidavit, but could only be served with the petition by conspicuous service .... [caused] the Court ... to request additional documentation from Petitioner's counsel prior to issuing the [default] warrant."[FN20] [*6]

Similarly, in the matters at bar, the affiant, Amjad Farhat, claims to have personally conversed with twenty-five (25) different respondents as to the military status of a total of thirty-one (31) different individuals. However, the process server that claims to have served each notice of petition and petition in the instant matters, Ahmad Farhat, claims to have served only three (3) of the thirty-one (31) named respondents, by personal service. Accordingly, given the fact that "respondents were readily found personally for the purposes of the non-military affidavit" but more than ninety percent (90%) were unable to be served personally with the notice of petition and petition, this court is compelled to make further inquiry, as to the veracity of the allegations in the affidavits of military status.[FN21]

REQUIREMENTS OF LICENSED PROCESS SERVERS

Recent amendments [FN22] to the New York City Administrative Code [FN23] and the Rules of the City of New York [FN24] currently require a licensed process server "to carry at all times during the commission of his or her licensed activities" a "device to establish electronically and record the time, date, and location of service of process ..."[FN25]

The purpose of the new requirement is to deter process servers from filing affidavits which assert false claims and to make it easier for those reviewing such affidavits to detect such falsehoods.[FN26]

In each affidavit of military status submitted in the twenty-five (25) pending matters, the line immediately below the affiant's (Amjad Farhat's) signature, reads: "Lic#1341911" (sic). Accordingly, this court holds that where a licenced process server undertakes to conduct an investigation as to a party's military status, and supplies within the affidavit, his or her process servers' license number, he or she was acting in "the commission of his or her" "licensed activities,"[FN27] when performing such investigation, and therefore the New York City [*7]Administrative Code and the Rules of the City of New York require that each investigation be memorialized with an electronic recording.

DETERMINATION / HEARING

SUFFICIENT, CAUSE APPEARING HEREON, it is:

ORDERED, that the instant twenty-five (25) matters will appear on the court calendar, on July 31, 2013, at 141 Livingston Street, Kings County, Part A, room 904, at 2:30 in the post-noon for a hearing to determine, inter alia, if, each allegation that Mr. Amjad Farhat, previously swore to, in each affidavit of respondents' military status, is true, pursuant to penalties of perjury; and it is further,

ORDERED, that Mr. Amjad Farhat, may appear at the hearing along with counsel of his choosing, and with documents to establish that, during the relevant time, he did in fact personally visit each apartment, and had personal conversations which each individual that he swears, under penalties of perjury, that he personally conversed with. Such documents shall include: the affiant's license (#1341911), log book and GPS records, as applicable, pursuant to the New York City Department of Consumer Affairs, the Rules of the City of New York, and the directives of this interim decision and order.

Depending on the credibility this court determines the witness' testimony merits, or upon the witness' default, this matter may be referred to the Office of the District Attorney, the Office of the Attorney General and/or the Department of Consumer Affairs, for appropriate action; and it is further,

ORDERED, that if they have not yet done so, the named respondents in each action, if so inclined, may appear in the courthouse located at 1118 Grand Concourse, Bronx, New York and file any appropriate documents with the clerk of the court in avoidance of the entry of a default judgment; and it is further,

ORDERED, that each respondent, if so inclined, may appear in the courthouse located at 141 Livingston Street, Brooklyn, New York, to participate at the hearing on to be held on July 31, 2013, Part A, room 904 at 2:30 in the post-noon, and if any respondent so chooses, may present testimony, to corroborate or disavow the statements made in the military status affidavits, as alleged by affiant.

The foregoing constitutes the interim decision and order of the court.

Dated:Brooklyn, NY

June 18, 2013

_______/s/______________

JHC [*8] Footnotes

Footnote 1: London v O'Connell, 20 Misc 2d 168 (Mun Ct NY County [1959]).

Footnote 2: 50 USC Appendix §521, et seq.

Footnote 3: NY Mil. Law §309.

Footnote 4: "There is no question that [petitioner/landlord] must meet the requirements of both the Federal and State laws before it may evict [respondent/tenant]" Cornell Leasing Corp. v Hemmingway, 147 Misc 2d 83 (Civ Ct Kings County [1990]) citing to (5 West's Federal Practice Manual §6291 [2d rev ed]).

Footnote 5: Six (6) proceedings have two (2) named respondents and petitioner submitted separate affidavits for each named respondent.

Footnote 6: The court acknowledges Jon Helfman, Warrant Clerk, Bronx County Housing Court, for bringing this matter to the court's attention.

Footnote 7:Applications for entry of default judgments and warrants of eviction in six (6) non payment proceedings consolidated for joint hearing to determine "whether [each] affidavit [of non military status] was false." In all six (6) cases the same six (6) petitioner's were represented by the same attorney and the same process server claimed to have personally spoke to respondent and concluded that no respondent was in active military service or dependant on one in active military duty. The "affidavits in these proceedings were all a standard form lacking any detail of what actually occurred at the time of the alleged investigation.... no physical descriptions are included of the individuals allegedly spoken to, nor are any descriptions included of the locations actually visited" Riverbay Corp. v Selden, 27 Misc 3d 1204(A) (Civ Ct Bronx County [2010]).

Footnote 8: NY Mil. Law §309(1); 50 USC Appendix §521.

Footnote 9: Benabi Realty Management Co., LLC v Van Doorne, 190 Misc 2d 37 (Civ Ct NY County, Schachner, J., [2001]).

Footnote 10: Schachner & Weissman, Outside Counsel, Using Affidavits of Military Service in Housing Court Proceedings, NYLJ, June 6, 2002, p 4, col 4.

Footnote 11: 363 Assoc. v Sharhan, 2 Misc 3d 928 (Civ Ct NY County [2003]).

Footnote 12: Schachner & Avery, Outside Counsel, Housing Court Part M, the Military and Their Dependents, NYLJ May 5, 2003 p 4, col 2; see also, 552-562 Academy St. Corp. v Calderon, 38 Misc 2d 873 (Civ Ct NY County [1963]).

Footnote 13: Boone v Lightner, 319 US 561at 576 [1943].

Footnote 14: Am. Jur. 2d, Military and Civil Defense §368.

Footnote 15: Contrary to precedent that "[an] affidavit should contain separate, numbered paragraphs for each factual allegation" GBI Acupuncture, PC v Esurance Ins. Co., 38 Misc 3d 1208(A) (Civ Ct Kings County [2012]) referencing, generally Phillips v Girdich, 408 F3d 124 (Ct App 2d Cir [2000]) "[in order] to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers" GBI Acupuncture, PC v Esurance Ins. Co., supra, the twenty-five (25) affidavits submitted in the matters currently before the court fail to contain numbered paragraphs. As a result of petitioner's failure to sequentially number each paragraph of any of the affidavits, this court is unable to direct the reader to any paragraph by specific paragraph number, when referring to specific language in the affidavits.

Footnote 16: See footnote 1 herein.

Footnote 17: The court notes that the address from which possession is sought, as stated in the petition is "707 East 242 Street" and not "707 East Street" as cited in the affidavit, accordingly, the affidavit, even if otherwise sufficient, cannot support the entry of a default judgment against the named respondent.

Footnote 18: A process server's inquiry of the person served, as to "whether [defendant] was presently in military service of the United States Government, or on active military duty in service of the State of New York ... [was sufficient]" Bergani v Desena, 50 AD3d 716 (2nd Dept [2008]).

Footnote 19: 50 USC Appendix §521(C): "A person who makes or uses a [non military] affidavit ... or a statement, declaration, verification, or certificate ... knowing it to be false, shall be fined ... or imprisoned ... or both";

NY Mil. Law §309(3): "Any person who shall knowingly take part in any eviction or distress otherwise than as provided in subdivision one of this section, or attempts so to do, shall be guilty of a misdemeanor, and shall be punishable by imprisonment ... or by fine ... or both." See also, In re Holstein, 43 AD2d 9 (1st Dept [1973]).

Footnote 20: Morris Heights Restoration v Torres, 25 Misc 3d 1233(A) (Civ Ct NY County [2009]); see also, Riverbay Corp. v Selden, supra.

Footnote 21: Morris Heights Restoration v Torres, supra.

Footnote 22: The amendments were enacted following hearings held by a committee of the City Council, where "witnesses presented evidence of the widespread prevalence in New York City, of sewer service, an illegal practice in which process servers falsely claim to serve summonses and other process on parties to legal proceedings. The false service of legal papers is particularly common in consumer debt collection cases, where it deprives consumers of the opportunity to defend themselves against creditors claims that are frequently incorrect or even entirely false" NYC Dept of Consumer Affairs at: http://www.nyc.gov/html/dca/downloads/pdf/ps_educational_materials.pdf.

Footnote 23: New York City Administrative Code §20-410.

Footnote 24: Title 6 of the Rules of the City of New York §2-233b.

Footnote 25: Such an electronic device is more commonly known as a "Global Positioning System" or "GPS."

Footnote 26: "This technological tool [is] to [be used to] detect and deter sewer service'" NYC Dept of Consumer Affairs at: http://www.nyc.gov/html/dca/downloads/pdf/ps_educational_materials.pdf.

Footnote 27: Indeed, Title 6 of the Rules of the City of New York §2-231(2) reads as follows: "Process" shall mean a summons, notice of petition, order to show cause, subpoena, notice, citation or other legal paper issued under the laws of the State of New York directing an appearance or response to a legal action, legal proceeding or administrative proceeding..." As an affidavit of military status is a "legal paper" and questions of military status require a "response" in order for "a legal action" to proceed, it is a form of process, and therefore the recently enacted amendments cited above, apply.