Morris Hgts. Restoration v Torres

[*1] Morris Hgts. Restoration v Torres 2009 NY Slip Op 52404(U) [25 Misc 3d 1233(A)] Decided on November 30, 2009 Civil Court Of The City Of New York, Bronx County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2009
Civil Court of the City of New York, Bronx County

Morris Heights Restoration, Petitioner,

against

Wanda Torres, Respondent;



SHERIDAN COURT MEWS ASSOC. Petitioner,

against

SAURY ORTEGA & MARIA ORTEGA Respondents



51989/09

Sabrina B. Kraus, J.

The two above captioned proceedings are summary nonpayment proceedings, where the respondents have failed to answer and the petitioner has submitted an application for a final judgment of possession and the issuance of warrant of eviction, on default. They are consolidated for disposition by the Court. The applications were submitted with a large number of other proceedings for entry of a judgment and issuance of a warrant on default. In the overwhelming majority of those proceedings it was alleged that the rent had been personally demanded from the respondents prior to the verification of the petition.

The applications are both predicated on the following facts:

1) The petitioner alleges that the rent sought in the petition "has been demanded personally from the tenants since same came due" and contains no further information regarding the demand ; and

2) Darelene Evans, asserted to be a managing agent, not identified on the multiple dwelling registration, executed an affidavit of non-military-service asserting she personally spoke to the respondents on the morning of September 28th, 2009 ; and

3) Respondents were served by conspicuous place service, with an initial attempt on the evening of September 21, 2009 between 6:46 pm and 7:08 pm, and a second attempt the next [*2]morning on September 22, 2009 between 9:35 am and 11:59 am, by the same process server.

4) The petitions were verified, on September 15, 2009, by an attorney for the petitioner, whose name appears somewhat illegible, but the court presumes to be Daniel J. Pomerantz.

Given the bare bones allegation regarding the oral demand, the fact the petition was verified by an attorney, only on information and belief, the fact that the same attorney verified a petition under Index Number 51978/09, on the same day, that had at least one material allegation that was incorrect[FN1], the 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, and finally given that the two attempts at conspicuous service were done in the evening and following morning of two consecutive days, and that the two attempts were less than fifteen hours apart, the Court deemed it appropriate to request additional documentation from Petitioner's counsel prior to issuing the warrant.

Specifically, the Court requested either an affidavit verifying the allegations in the petition by an individual from petitioner with knowledge as to same, or an affidavit providing additional details regarding the alleged oral demand.

Counsel for Petitioner declined to comply with the request for additional documentation, and instead asked that the Court issue a written order denying the warrant application.

While it is well settled that where a landlord satisfies the statutory requirements for a default judgment and warrant, the court must issue a the judgment and warrant, without the creation of "additional procedural safeguards ... (t)he reciprocal of this mandate is the Court's obligation to insure strict compliance with the statutory requirements' ... under the circumstances of each individual case (25-35 Equity Holdings Inc. v. Toles et al, 2001 NY Slip Op 40036 [U] [NY City Civ Ct])(citations omitted).

Where there appears to be a facial insufficiency in the pleadings and accompanying affidavits, the Court is entitled to request additional supporting documentation prior to entering a judgment ( Brusco v. Braun 199 AD2d 27 , affd 84 NY2d 674; CPLR 409[a]). In Brusco the Court of Appeals noted that its holding that inquests were not appropriately required by the Court prior to issuing a default judgment was based in part on the following: Petitioner has complied with all the procedural requirements of RPAPL article 7: the petition was verified upon personal knowledge of the landlord and the notice of petition and petition were personally served upon the tenant. Inasmuch as [*3]there was no question regarding the sufficiency of the petition or the service and the tenant failed to answer, respondent was required by RPAPL 732(3) to render judgment in favor of petitioner.

Id. at 681 (citations omitted).

This implies that where all procedural requirements are not met, the petition was not verified upon personal knowledge, the pleadings were not by personal served, and there are questions about the sufficiency of the petition and service, further inquiry may be warranted.

In the decision affirmed by the Court of Appeals, the Appellate Decision wrote "(p)etitioner, in her brief, notes that even in the event that the underlying pleadings were insufficient to support entry of judgment on default, any omission could be cured by submission of additional affidavits, rendering unnecessary personal appearance to give testimony before the court at inquest. Petitioner is entirely correct (Brusco v. Braun 199 AD2d 27, at 31, affd 84 NY2d 674)."

Other courts since Brusco have sought such additional documentation in facts similar to those in the case at bar. For example, in 25-35 Equity Holdings Inc v. Toles et al (2001 NY Slip Op 40036(U), NY City Civ Ct ) where petitions did allege the date of the personal demand for rent, a fact not alleged in the petitions at bar, where service was by conspicuous place delivery, and petitions were not verified by the landlord, the Court found that "the circumstances of the pleaded oral demands raise a question whether the tenants received the notice required by RPAPL § 711(2)" and the Court required the submission of additional affidavits regarding the details of the alleged oral demand pursuant to CPLR 409(a).

Recently the Appellate Term, Second Department held, in the context of a commercial nonpayment proceeding, that where rent is asserted to have been personally demanded, and the petition is verified only by an attorney, it was proper for the Court to deny the request for a default judgment without prejudice to renewal upon proper papers ( Sella Properties v. DeLeon, 2009 NY Slip Op 29408).

Based on the foregoing the request for a warrant in the above referenced proceedings is denied without prejudice to renewal upon submission of an affidavit providing details regarding the alleged personal demand.

This constitutes the decision and order of this Court.

___________________________

SABRINA B. KRAUS [*4]

Dated: New York, New York

November 30, 2009 Footnotes

Footnote 1: On the same day that the application was made for a warrant in the proceedings at bar, an application was made for a warrant under Index 51978/09. Said application was rejected because although the attorney verified the allegations of the petition, there was in fact no valid MDR registration as asserted in the petition. The last registration date indicated by HPD was in April of 2008, and the MDR number provided in the petition was incorrect.