Bruno v Sickler

[*1] Bruno v Sickler 2007 NY Slip Op 51423(U) [16 Misc 3d 1114(A)] Decided on July 24, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2007
Nassau Dist Ct

Christopher Bruno, Petitioner-Landlord

against

Arthur Sickler, Respondent-Tenant First name of Tenant and/or Undertenant being fictitious and unknown to petitioner. Person intended being in possession of the premises herein described Respondent-Undertenant



2360/07



Harold I Guberman, Esq.

Ezratty, Ezratty & Levine

Scott Fairgrieve, J.

Respondent has brought a motion to dismiss the holdover petition brought by the petitioner to recover possession of the disputed premises and $41,100.00 in rental arrears. The respondent contends that the Petition must be dismissed, as the petitioner's use of Cheryl O'Connor as an Attorney-in-fact is invalid.

Respondent and Petitioner began their relationship when the Respondent would act as a general contractor to work on properties owned by the Petitioner. In September 2005, the Petitioner agreed to sell the disputed premises to the Respondent and drafted a contract of sale for $612,000.00. Before the Contract could be executed, the Petitioner was incarcerated. However, according to the Respondent, the parties stipulated the terms of the contract in or about December 2006. The Respondent continued to renovate the premises, although the Respondent claims he has not moved into the house yet.

In bringing the action, the petitioner has appointed Ms. Cheryl O'Connor to serve as his attorney-in-fact.' This will allow Ms. O'Connor to make decisions as to the direction of the [*2]proceeding, as the petitioner's incarceration affects his ability to do so. The paperwork to give Ms. O'Connor this power is not notarized, but is signed by three individuals who are only named by their signature, and no other information is provided.

Under General Obligations Law § 5-1501 (2):

"a power of attorney is a "statutory short form power of attorney" only when it meets the requirements of the closing paragraph of subdivision one or subdivision one-a of this section and has been duly acknowledged by the principal in the manner prescribed for the acknowledgement of a conveyance of real property."

According to the statute, a power of attorney election is acknowledged the same way as a conveyance of real property. Thus, in order to be deemed acceptable, the petitioner must follow the requirements that are stipulated in the statute which governs the conveyance of real property.

Under RPL § 243:

"[a] grant in fee or of a freehold estate, must be subscribed by the person from whom the estate or interest conveyed is intended to pass, or by his lawful agent thereunto authorized in writing. If not duly acknowledged before its delivery, according to the provisions of this chapter, its execution and delivery must be attested by at least one witness, or, if not so attested, it does not take effect as against a subsequent purchaser or incumbrancer until so acknowledged"

As is stipulated in the statute, in order for an individual to grant another individual the power of attorney, an acknowledgment in writing must be made. Although RPL §243 allows for a deed to be executed by a witness, the same is not true for the appointment of a power of attorney. The General Obligations Law § 5-1501(2) states that a power of attorney must be acknowledged in the same manner as a conveyance of property; it does not allow for exceptions the way that RPL §243 does. Thus, the Petitioner's contention that the witness of the appointment of Ms. O'Connor as attorney-in-fact serve to make the appointment valid is incorrect. The only way that an individual can be appointed as power of attorney is through an acknowledgment, which is further explained in General Construction Law §11:

"[w]hen the execution of any instrument or writing is authorized or required by law to be acknowledged, or to be proven so as to entitle it to be filed or recorded in public office, the acknowledgment may be taken or the proof made before any officer then and there authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk's office, and shall be made and certified in the same manner as such acknowledgment or proof of such deed."

RPL §299 provides several officers that can acknowledge proof of conveyance. These individuals include: [*3]

"(1) a judge or other presiding officer of any court having a seal, or the clerk or other certifying officer thereof, (2) a mayor or other chief civil officer of any city or other political subdivision, (3) a notary public, (4) a commissioner of deeds appointed pursuant to the laws of this state to take acknowledgements or proofs without this state, and (5) any person authorized, by the laws of the state, District of Columbia, territory, possession, dependency, or other place where the acknowledgment or proof is made, to take the acknowledgment or proof of deeds to be recorded therein."

In providing for the appointment of Ms. O'Connor to his attorney-in-fact,' the petitioner signed paperwork giving Ms. O'Connor the power of attorney. While there is a signed copy approving Ms. O'Connor to serve as the attorney in fact for the Petitioner, the form has not been acknowledged by an acceptable individual under RPL §299. The failure to abide by the statutory requirements invalidates the appointment of Ms. O'Connor as an attorney in fact. As was demonstrated in Freedman et. al. v. Oppenheim, 81 N.Y.S. 110, (2nd Appellate Division, 1903), if the power of attorney is defectively notarized, it could not be sustained in a court of law. In that case, the actual notarization was improper, and while the facts of the current proceeding differ in that there was never an attempt to notarize the appointment of Ms. O'Connor, the point remains that a party can not appoint an individual to serve as an attorney in fact without following the necessary procedure.

For the above reasons, the petition must be dismissed without prejudice to the petitioner for bringing another proceeding.

So ordered:

DISTRICT COURT JUDGE

Dated:July 24, 2007

CC:

/mp