Hobbs Ciena Assoc., LP v Jimenez

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Hobbs Ciena Assoc., LP v Jimenez 2017 NY Slip Op 30209(U) January 31, 2017 Civil Court of the City of New York, New York County Docket Number: 74011/16 Judge: Michael Weisberg Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] CIVIL COU RT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART ---------------------------------------------------------------)( HOBBS CIENA ASSOCIATES, LP, Index No. 7401 1/ 16 Petitioner, DECISION/ ORDER -against- EUDA JIMENEZ, Respondent. ---------------------------------------------------------------)( STRATFORD LAND DEVELOPMENT CO., fndex No. 78056/16 Petitioner, -againstMELISSA PUGLIESE, Respondent. ---------------------------------------------------------------)( Sontag & l!yma11, P.C., Roslyn Heights, for Petitioner. WEISBERG, J.: These two nonpayment summary eviction proceed ings were referred lo the court on the application of the Petitioners for entry of a default judgment based on the Respondents' failure to answer the petitions. In both proceedings the affidavits of service of the predicate rent demand and petition indicate that the documents were served by licensed process server Wesley Moise and contain what is purported to be his notarized signature. ' In both proceedings the signature on the affidavit of service for the rent demand differs distinctly from the signature on the affidavit of 1 Cop ies of the affidavits arc appended hereto. [* 2] service for the notice of petition an<l petition. 111 light of this apparent discrepancy between the two signatures the court found that there was ''n question regarding the su l'ficiency of. ..servicc [of the petition]" (Brusco 1· Braun, 84 NY2d 674, 681 [1994]. The court therefore did not grant Petitioners a default judgment and scheduled a hearing, which took place on January 20, 2017. The two proceedings arc consolidated herein solely for the purpose of disposition of the Petitioners' applications for entry or a default judgment. The only witness lo testify was Moise. I le testified that he signed all four affldavils and that there was no possibility that anyone else had signed them. Jn response to the question from Petitioners' attorney regarding why the signatures look different, he testified that he is always in a rush to sign his a flidavits of service because he docs not get paid by the hour. As a result he signs the affidavits quickly. On average, he is given a batch of twenty to thirty affidavits to sign at one time. Moise testified that he does not have a desk. Ile is always sta nding when he signs the affidavits presented to him. Moise confirmed that a signature in his name on a 2013 consent order resulting from a ) notice of hearing from the New York City Department of Consumer Affairs was signed by him.The trier of fact may make a comparison or a disputed writing with a satisfactory standard (see People,,/ lu11ter, 34 NY2<l 432 [ 1974]; CPLR 4536). In the court's opinion one of the signatures in each case resembles the signature on the consent order (although significant differences are still observab le), but even a casual observer could not help but notice the difference between the second signature in each case and that on the consent order. First, the ! A rnpy of the signature page from the const:nl order is appended hereto. A compktc copy of the consent order is :n ai Iable at https://ww \\ l .nyc .gov/asscts/dca/down loacls1pd t7ahout/sa_ WeslcyMoisc_ 1341 165 .pd f 2 [* 3] signature on the consent order and one or the signatures in each proceeding contains scri f's. /\ seri r is a small line attached lo the end or a stroke in a letter. The "W'. in ·'Wesley" and the "\II" in "Moise" in the consent order have serifs. Likewise, the same letters in one of the signatures in each proceeding has scri rs. But the other signature in each cnse docs not have serifs. Second, for the non-serif signature in each case the space between the lines in the .. W" and "M" is wide and correlates roughly equally to the height or the letters. In the consent order signature and in the other signatures the space between the lines in each letter is na1rnw. Compared to the non-serif signature, the ratio of the height of the letters to the width of the spaces between the lines in the letters is much greater for the serif signatures. Overall, one of the signatures in each case docs not appear to be made by the same hand as the signature on the consent order. The court was struck by Moise's glib response to the Petitioners' attorney's request f'or an explanation accounting for the dissimilarity between the signatures on the affidavits. Moise did not suggest that the difference might have to do with the pen he uses at any given time, the surface on which he is signing, his body position (e.g. standing or sitting) while signing (because he always stands), whether or not he sometimes has more or less time to devote to signing the documents, or anything else that might cause his signature to differ. And in a statement seemingly at odds with his claim that his signatures look different because he signs the affidavits in a rush, Moise testified that when he is rushing to sign affidavits his signature docs not look different from the signatures on the affidavits at issue. rn other words. Moise contradictory testimony seemed to be that 1) his signature looh different on the affidavits al issue because he 3 [* 4] signs them ve1y quickly; but 2) even though his signatures herein look different because he signs the affidavits quickly, his signing the alfolavits quickly only res ults in signatures that look like the two types herein and nothing else. Frankly, Moise's having to sign many drn;umcnts. and doing so as quickly as possibk, without more, docs not adequately account for the di fforcnce in signatures. The court docs not doubt that Moise is required to sign voluminous documents, as it has reviewed many, many affidavits of conspicuous place service purportedly made by Moise.' Nor docs the court doubt that having to sign so many documents might result in hand weakness or cramps such that over the course of signing the documents the signature might change. But in the court's opinion the difTerence between the signatures is so stark that the only reasonable conclusion is that at least one of the signatures in each proceeding docs not belong to Moise. "Judges assigned the task or entertaining applications for entry or default final judgments in nonpayment proceedings do not function as mere aulomat[ons]" (Ce11trnl Park Gardens. Inc. 1• Ramos, NYLJ, April 9, I 984, at 12, col. 6 [/\pp Term, Ist Dept 1984 I). The stark disparities bet ween the signatures on the affidavits of service in each of these cases raise serious questions as to the su nicicncy or service of the rent demand and notice of petition and petition so as to preclude entry of a default judgment. Moise's testimony did nothing to answer those questions, but instead increased the court's concern. Petitioners' applications for a default judgment arc denied. A copy of this decision is being sent to the Department of Consumer Affairs and the New ' f\tany allldavits of which contained signatures ofvmious uppearance comparable to those herein. [* 5] York Department of State (the agency charged with oversight of notary publics). Dated: January 3 l, 2017 5

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