GMAC Mtge. Corp. v Toureau
Annotate this CaseDecided on May 25, 2007
District Court of Nassau County, First District
GMAC Mortgage Corporation, Petitioner(s)
against
Marie Toureau; Mr. Nickerson; "John Doe No. 1 - # 12; the latter intended to be persons occupying the subject premises and unknown to the Petitioner, Respondent(s)
SP 1089/07
Thomas H. Smigelski, of Counsel to Jeffrey A. Seigel, Esq., Volunteer Lawyers Project, Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondents, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8299; Fein, Such & Crane, LLP, Attorneys for Petitioner, 747 Chestnut Ridge Road, Suite 200, Chestnut Ridge, New York
Scott Fairgrieve, J.
Petitioner commenced this post foreclosure holdover proceeding, pursuant to RPAPL § 713(5), to evict respondent Mr. Nickerson from the premises known as 48 Waterbury Lane, Westbury, New York.
Respondent Nickerson now moves for an order dismissing the petition, pursuant to CPLR 3211(a)(1) and (2) and RPAPL §713, based upon two alleged deficiencies:
1.The 10 day notice to quit failed to inform respondents that summary proceedings would be commenced if they failed to vacate.
2.The 10 day notice to quit was signed by petitioner's attorney and no authorization from petitioner was attached for this action.
Petitioner opposes this motion and maintains that the notice to quit passes legal muster because:
1.RPAPL §713 does not require that the notice to quit inform respondents that summary proceedings will be instituted in the event that respondents don't vacate.
2.The 10 day notice to quit can be signed by an attorney in a post foreclosure holdover proceeding.
RPAPL §713(5) provides:
Grounds where no landlord-tenant relationship exists A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: 5. The property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him.
It is alleged in the sixth paragraph of the petition that Deutsche Bank National Trust Company as Trustee acquired title to 48 Waterbury Lane, Westbury in a foreclosure sale. On December 18, 2006, Deutsche Bank transferred ownership of the premises by a quitclaim deed to petitioner. The ninth paragraph of the petition contains the averment that the 10 day notice informed respondents that "the owner would commence summary proceedings under the statute to remove said respondents therefrom." However, an examination of the 10 day notice proves this allegation to be incorrect. The notice did not inform respondents that summary proceedings would be commenced if they failed to vacate.
The ninth paragraph of the petition states:
At least 10 days before the bringing of this petition, the Petitioner's deed to the premises was duly exhibited to the Respondents and Respondents were served in the manner provided for by law with a notice in writing, a copy of which with proof of service is annexed hereto and made a part of this petition, that the Petitioner is now the owner of the premises, that Respondent's rights were terminated and that unless the Respondents removed from said premises within ten (10) days, the owner would commence summary proceedings under the statute to remove said Respondents therefrom.
The 10 day notice to quit served upon respondents states:
January 17, 2007
NOTICE TO QUIT PREMISES
TO:OCCUPANT(S),the tenant(s) of 48 WATERBURY LANE, WESTBURY, NY [*2]11590 and any and all other persons occupying the premises known as 48 WATERBURY LANE, WESTBURY, NY 11590.
PLEASE TAKE NOTICE, that the premises known as 48 WATERBURY LANE, WESTBURY, NY 11590, now occupied and having been sold to GMAC MORTGAGE CORPORATION D/B/A DITECH.COM, under a judgment of foreclosure in an action brought against; and that the title under said sale is annexed hereto and has been exhibited to you.
TAKE FURTHER NOTICE, that GMAC MORTGAGE CORPORATION D/B/A DITECH.COM, is now owner of the aforementioned premises, and hereby demands that you and all other persons occupying the said premises remove therefrom and surrender possession thereof to GMAC MORTGAGE CORPORATION D/B/A DITECH.COM, or its agents, no later than ten (10) days from the date of this notice is served upon you.
DATED:January 17, 2007
FEIN, SUCH & CRANE, LLP.
By: /s/ Laurie Maxis, Esq.
DECISION
New York Courts have expressed divergent views on the issue of whether the 10 day notice to quit must warn respondents of the consequences if they don't vacate timely.
In Citibank v. Pang, NYLJ, July 11, 1994, at 27, col. 4 (App Term, 1st Dept), the court ruled that the RPAPL §713(5) 10 day notice was defective because it didn't warn of the consequences in the event that respondent failed to vacate.
The Appellate Term held as follows:
Because of the numerous infirmities and omissions in petitioner's ten-day notice to quit, which was a condition precedent to the maintenance of this holdover proceeding under RPAPL § 713[5], the petition must be dismissed. The notice did not advise tenant of the legal consequences of her failure to timely vacate, i.e., that eviction proceedings to recover possession would be commenced (Katz v. Grifa, 156 Misc 2d 203). Further, while it appears that the building premises were acquired at foreclosure, the notice did not properly identify petitioner's status as the purchaser in foreclosure or describe the [*3]apartment premises sought with specificity.
In contrast, the court, in Reifeld Thompson & Riverside, Inc. v. Ho, NYLJ, August 14, 1995, at 28, col. 2 (App Term, 1st Dept), took the view that since RPAPL §713 does not require the consequences of the failure to vacate be put in the 10 day notice to vacate, then same is not required.
The court held:
In this holdover licensee proceeding, landlord's notice to quit set forth the facts underlying the expiration of respondents' interest following the death of the statutory tenant, and advised that respondents were required to deliver possession to landlord by a date certain. The absence of a statement in the notice that landlord would commence eviction proceedings in the event respondents failed to vacate did not render the notice "jurisdictionally defective", particularly since the governing statute, RPAPL §713, does not require such a statement (cf. Real Property Law §232-a). The notice served in this case was sufficient to serve as a predicate for a proceeding in which it is alleged that no landlord-tenant relationship exists.
Other New York cases deciding this issue include:
1.Katz v. Grifa, 156 Misc 2d 203, 591 NYS2d 758 (Civ Ct, NY 1992), holding that the 10 day notice to quit was defective because it didn't state the consequences of the failure to comply with the demand to move.
2.First Federal v. Souto, 162 Misc 2d 224, 616 NYS2d 562 (Civ Ct, NY 1994), holding that the 10 day notice to quit was valid where it informed respondents that legal proceedings would be instituted should they fail to vacate.
3.1274 51 Realty, LLC v. Gross, 2007 WL1148674 (Civ Ct, NY 2007), holding that the notice to quit was not jurisdictionally defective where the notice did not state that summary proceedings would be commenced if respondent failed to vacate.
4.Washington Mutual Bank v. Hanspal, 14 Misc 3d 1217, 2007 WL 93164 (Dist Ct, Nassau 2007), decided by this Court. In Washington Mutual, the petitioner contended that the 10 day notice was defective because it failed to advise the respondent of a day certain for respondent to move out. This Court holds that the notice to quit was sufficient where it warned respondent that summary proceedings would be commenced if they failed to vacate after the running of the 10 day period.
In Landlord & Tenant Practice in New York, Section 15:149 authors, Daniel [*4]Finkelstein and Lucas A. Ferrara, state that the 10 day notice to quit should meet the following criteria:
Ideally, the notice should inform the recipient of the:
basis or ground(s) for the occupant's removal from the premises;
vacatur date (which must fall at least ten days after the notice is served upon the occupant); and
legal consequences of the occupant's failure to vacate the premises within the specified time period.
The omission of this recitation has been found to render the notice "jurisdictionally defective" and can lead to the proceeding's dismissal. However, the characterization of a notice containing errors or omissions as "jurisdictionally" defective, has been rejected by appellate courts.
In Residential Landlord-Tenant Law in New York, (Andrew Schener, Esq., Section 8:236, 2007 edition) the following comments are made concerning the exact two issues before this Court:
The notice to quit must clearly advise the occupant that if the occupant fails to vacate the premises, a summary eviction proceeding will be commenced. If it does not so advise, the court does not have subject matter jurisdiction of the proceeding and the proceeding must be dismissed. Katz v. Grifa, 156 Misc 2d 203, 591 NYS2d 758 (NY City Civ Ct 1992).
In addition, the attorney signing the notice to quit must have documented authority to act for the landlord via the lease or the notice will be rendered defective. Washington Mutual Home Loans, Inc. v. Calderon, 9/25/2002 NYLJ 23, col. 3 (Queens Co Ct) (quoting Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2d Dept 1985), order aff'd, 67 NY2d 792, 501 NYS2d 317, 492 NE2d 390 (1986): "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.").
This Court holds that the better practice when drawing up a 10 day notice to quit is to advise the respondents that summary proceedings will be commenced if they fail to [*5]vacate after service of the 10 day notice. In the case at bar, since the 10 day notice failed to advise respondents of the consequences of the failure to vacate, it is jurisdictionally defective.
As to the respondent's second ground for dismissal, the Court agrees with the respondent that the 10 day notice to quit signed by petitioner's attorney is defective.
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.
Likewise, in Washington Mutual v. Calderon, NYLJ, September 25,2002, at 23, col. 3, the court followed the Fannie Mae, supra rationale and dismissed the proceeding because the attorney signed the 10 day notice to quit in a post foreclosure summary proceeding. The court's rationale is as follows:
Petitioner claims that it is not bound by the ruling, in Siegel, supra , arguing that there is a distinction between predicate notices served under RPAPL §711 and 713. Petitioner cites two cases in support of their argument. However upon review of these cases, they clearly do not support the argument proffered by petitioner. In Fannie Mae v. Lindo, 678 NYS2d 477 (Dist. Ct. 1998), the issue raised pertains to the ten day notice to quit which is required pursuant to RPAPL §713) in a case where a mortgage is foreclosed and no landlord-tenant relationship exists. The specific issue raised is similar to the facts herein, in that the question is whether there is jurisdiction when a ten day notice is signed by counsel. In Fannie Mae v. Lindo, supra , the Court cited Siegel v. Kentucky Fried Chicken, supra . as the 'current status of law in the Second Department' and held that the notice provided by counsel was insufficient and jurisdictionally defective. In the second case, Federal National Mortgage Corp. v. Grossman, NYLJ November 15, 2000, 31:3, the facts are distinguishable from the case herein, in that the petitioner annexed a copy of a Limited Power of Attorney to the notice to quit which granted authority to the attorney to sign on petitioner's behalf, thereby complying with case law and the holding in Siegel, supra . In the within matter petitioner annexes to their motion, a copy of an interoffice memorandum indicating that their attorney Victor Spinelli has limited authority to sign notices. However, petitioner's attorney did not serve the 10 Day Notice to Quit with a copy of his limited authority. Accordingly, the notice provided by counsel was jurisdictionally defective and therefore, respondent's motion is granted and the within matter is dismissed.
In the case at bar, the 10 day notice to quit is defective because the notice was [*6]executed by petitioner's attorney. Further, there is no evidence presented that petitioner's attorney attached an authorization to the notice executed by petitioner, nor is there any evidence that there were prior dealings between respondent and petitioner's attorney.
CONCLUSION
The respondent's motion is granted. This proceeding is dismissed because the 10 day notice to quit suffers from the following fatal defects.
1.The 10 day notice failed to advise respondents of the consequences that summary proceedings would be instituted if respondents failed to move. Petitioner acknowledges that this should be in the 10 day notice to quit by its specific allegations in paragraph 9 of its petition.
2.The 10 day notice was executed by petitioner's attorneys, who failed to attach any authorization from the client that they had authority to act. There is no evidence of any prior dealings between petitioner's attorneys and respondents before service of the 10 day notice to quit.
/s/
DISTRICT COURT JUDGE
Dated:May 25, 2007
CC:Nassau/Suffolk Law Services Committee, Inc.
Fein, Such & Crane, LLP
SF/mp
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