Option One Mtge. Corp. v Baptiste

[*1] Option One Mtge. Corp. v Baptiste 2007 NY Slip Op 51541(U) [16 Misc 3d 1122(A)] Decided on August 7, 2007 Civil Court Of The City Of New York, Kings County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 17, 2007; it will not be published in the printed Official Reports.

Decided on August 7, 2007
Civil Court of the City of New York, Kings County

Option One Mortgage Corporation, Petitioner-Landlord

against

Keitily T. Baptiste, Respondent.



L&T 79500/2007


Pitnick & Margolin, LLP
Attorneys for Petitioner
6800 Jericho Turnpike, Suite 206W
Syosset, New York 11791
(516) 921-3838

Ketitly T. Baptiste
John Doe & Jane Doe
Pro Se Respondents
740A Evergreen Avenue, 1st Flr.
Brooklyn, New York 11207

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by Option One Mortgage Corporation (hereinafter "Petitioner") seeking to recover possession of the first floor apartment at 740A Evergreen Avenue, Brooklyn, New York, 11207 (hereinafter "subject premises") based on the allegation that the subject building had been sold pursuant to a foreclosure action, and that following the sale, a Ten Day Notice to Quit with exhibition of the deed was alleged to have been served upon the Respondents.

PROCEDURAL HISTORY & INQUEST

The proceeding was first on the Court's calendar July 18, 2007. Based on the Respondents' failure to appear on that date, the matter was set down for an inquest on August 3, 2007. This Court conducted the inquest on August 3, 3007. During the course of the inquest, in accordance with the request of Petitioner's counsel, the Court took notice of the predicate notices and the pleadings in this matter. In doing so, the Court noted that the file contained a Ten Day Notice To Quit dated June 13, 2007, which demanded that Respondents surrender possession on or before July 2, 2007. The Notice further advised that a failure to so comply may result in the commencement of legal proceedings against the Respondents for their removal.

However, On June 29, 2007, three days prior to the time given Respondents under the Notice, Petitioner purchased an Index Number and filed the petition in this proceeding. The petition was signed, certified and verified by Jennifer L. Bernstein, Esq., an attorney for the Petitioner. Ms. Bernstein was also the attorney who conducted the inquest, signed the Ten Day Notice to Quit, and the Notice of Petition in this proceeding.

When questioned about how Ms. Bernstein was able to sign a verification dated July 3, 2007, and file said paper with the Court on June 29, 2007, Ms. Bernstein acknowledged the Court's concern with this procedure, but alleged that this was the standard procedure in her [*2]office, and how she has always handled all petitions of this type. Ms. Bernstein further alleged that there was "a bin" in the clerk's office for the express purpose of holding the post-dated petitions, and that the Index Numbers were then purchased at the appropriate time.[FN1]

Based on the foregoing the Petition in this matter must be dismissed. The Notice to Quit, which purports to serve as a predicate to this proceeding, gave Respondents until July 2, 2007 to surrender. On the date that the attorney signed the verification and the certification for the petition, which she falsely represented to be made as of July 3, 2007, but which she subsequently acknowledged was signed by June 29, 2007 or earlier, counsel could not state that the Respondents had failed to comply with the Notice to Quit as the time for the surrender had not yet expired.

In addition to the issue of the defective verification, there is a requirement pursuant to 22 NYCRR § 130-1.1a that every pleading written motion or other papers filed with the Court be signed by an attorney to certify that the contentions therein are not frivolous. Indeed, Ms. Bernstein signed both the Petition and Notice of Petition separate and apart from the verification of the pleadings, as required by 22 NYCRR § 130-1.1. A Failure to comply with this requirement can subject the attorney to sanctions pursuant to 22 NYCRR § 130-1.1(c), where appropriate.

It appears from the inquest, that the certification made by Ms. Bernstein in this case was deliberately and knowingly false, and not made as of the date indicated. Similarly the notary public, Margaret Waters, who indicated on the Petition that Ms. Bernstein's signature and oath were made on July 3, 3007 falsely represented this fact on the documents submitted to the Court.

Similar irregularities may plague the Notice of Petition, which has the stamp of the clerk of the Court dated June 29, 2007, but again is purportedly certified by Ms. Bernstein July 3, 2007.

Of particular concern to the Court is the fact that after these issues were brought to Ms. Bernstein's attention, she acknowledged no impropriety, defended her actions as being correct and went so far as to state on the record that she follows the same procedure for all proceedings she and her firm handle.

Based on the foregoing, the Court sua sponte orders that Jennifer L. Bernstein Esq, and the Law Firm of Pitnick & Margolin, LLP, counsel for Petitioner appear at a hearing on Wednesday August 29th at 2;30 p.m. to show cause why she and/or her law firm should not be sanctioned for their conduct in this proceeding pursuant to 22 NYCRR § 130-1.1.This constitutes the decision and order of this Court.

Dated: August 7, 2007

Brooklyn, New York

_______________________

Hon. Sabrina B. Kraus [*3]

J.H.C. Footnotes

Footnote 1: Upon inquiry with the clerk's office the Court confirmed that there is no such "bin" or practice.