2132 Presidential Assets, LLC v Carrasquillo

[*1] 2132 Presidential Assets, LLC v Carrasquillo 2013 NY Slip Op 23080 Decided on March 20, 2013 Civil Court Of The City Of New York, Bronx County Avery, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 20, 2013
Civil Court of the City of New York, Bronx County

2132 Presidential Assets, LLC, Petitioner,

against

Yamilka Carrasquillo, Respondent(s).



ANDERSON HOUSING ASSOCIATES, Petitioner,

against

OUMAROV TRAORE, Respondent(s).



BP ASSETS 46, LLC., Petitioner,

against

TAISHA ESTRADA, Respondent(s).



BP ASSETS 46, LLC., Petitioner, -agaisnst-

against

DENNIS RAMZAN, Respondent(s).



BP ASSETS 46, LLC., Petitioner,

against

BENJAMIN CABRERA, Respondent(s).



BP ASSETS 46, LLC., Petitioner,

against

PEDRO SOTO, Respondent(s).



BP ASSETS 46, LLC., Petitioner,

against

BERNANDO CRUZ, Respondent(s).



BP ASSETS 62, LLC., Petitioner,

against

ANDRES SANTIAGO, Respondent(s).



BRG GODWIN, LLC., Petitioner,

against

JOSE LUPERON, Respondent(s).



SOVEREIGN REALTY, ASSOC., Petitioner,

against

SAMBALA GOKOU, Respondent(s).



SOVEREIGN REALTY, ASSOC., Petitioner,

against

BINTOU WAGGEH Respondent(s).



SOVEREIGN REALTY, ASSOC., Petitioner,

against

CARMEN ROSADO, Respondent(s).



UNIVERSITY RESIDENCE INC IN RECEIVERSHIP, Petitioner,

against

MILAGROS MENDEZ, Respondent(s).



L & T 1762/13

Susan F. Avery, J.

CONSOLIDATION

The above captioned matters, submitted to this court for the entry of ex parte default judgments and issuances of warrants of eviction, are consolidated for purposes of this decision. Common factors in each of these thirteen (13) consolidated cases include: each petitioner is represented by the same law firm; the affidavits submitted in support of the instant applications read similarly and are all insufficient as a matter of law to support the entry of a default judgment. Additionally, many of the affidavits are signed by the same individual and notarized by the same Notary Public. Additionally, in nine (9) of the thirteen (13) proceedings, a supplemental affidavit is submitted, and seven (7) of the nine (9) "supplemental" affidavits are signed by the same individual and notarized by the same Notary Public. Accordingly, this court consolidates the matters and issues the following Order.

AFFIDAVITS SUBMITTED

As they relate to the purported rent arrears, each affidavit, drafted in all caps (except for the blanks that are filled in) is titled "AFFIDAVIT OF NON-MILITARY INVESTIGATION AND RENT OWED" (caps in original) and reads as follows:

"___[_______________]____ being duly sworn, deposes and says:

I am employed at _[_________________].......[FN1] [*2]

I have personal knowledge of the tenant's rent records. Tenant owes $ [] through the petition dated []. In addition to subsequent rent.

Sworn to before me

[___] day of [ ________] 2013

_____/s/[]_______/s/ []___

Notary PublicSignature of Investigator"

Each of the eleven (11) "supplemental" affidavits (also drafted in all capital letters) entitled "AFFIDAVIT OF RENT DUE AND OWING," read as follows:

" ______________ being duly sworn deposes and says:

1. I am the agent for the landlord in the proceeding.

2. I have personal knowledge of the tenant's rent records.

3. The tenant currently owes $[ ] through the petition in addition to subsequent rent.

Wherefore, your deponent prays that relief requested herein be granted.

Sworn to before me

[___] day of [______] 2013

_____/s/ []_______/s/ []____

Notary"

INFIRMITIES OF THE AFFIDAVITS

Troubling to this court is that each affidavit fails to substantiate the basis for the affiants "personal knowledge of the tenants rent records".[FN2] Beyond identifying the affiant by a job title, and an employee of petitioner, there are no details of the affiant's actual responsibilities. The affiant does not state that it is his or her responsibility to maintain the books and records of each petitioner,[FN3] nor does any affiant state that it is his or her responsibility to maintain any of the petitioners' records, nor does any affiant authenticate any record as a true and accurate document, [*3]kept in the ordinary course of petitioners' business'.[FN4]

Additionally, there is no allegation in any of the affidavits that the affiant actually has reviewed the petition, and there is no allegation that the statements are sworn to under penalties of perjury. As a result, the affidavits fail to support the conclusion that any respondent defaulted in the payment of the sums demanded in the petition.

SUSPICION OF "ROBO-SIGNING"

Affidavits which are identical to numerous other affidavits, which assert allegations without any factual support, create the suspicion of having been "robo-signed"[FN5], rather than executed by an individual based upon actual first hand personal knowledge.

The courts have consistently demonstrated an intolerance for "robo-signing." The practice has been specifically rejected in residential foreclosure cases, [FN6] consumer debt cases,[FN7] no-fault, health care provider cases,[FN8] and housing court non-payment eviction proceedings.[FN9] [*4]

While this court is mindful that the "suspicion of robo-signing' does not automatically indicate impropriety,"[FN10] it is reason enough to "give this court pause"[FN11] to make further inquiry as to the veracity of the allegations of the affidavit.

"ROBO-SIGNING" INTOLERABLE

IN HOUSING COURT PROCEEDINGS

Based upon the foregoing, this court maintains, as it has previously held, that the practice of robo-signing" is as intolerable in Residential Housing Court eviction proceedings, as the practice has been found to be in Residential Foreclosure actions.[FN12]

DETERMINATIONAccordingly, each application for a default judgment in the consolidated cases is denied with leave to renew upon a proper submission. Such proper submission shall include an affidavit of merit/default stating the basis for the affiants "personal knowledge". Any conclusions asserted in any affidavit must be supported by facts, such as, the review of books and/or other business records of each petitioner and each such document shall be authenticated as a business record.

STANDARD FOR RE-SUBMISSION

OF SIMILAR

EX PARTE APPLICATIONS

As this court denies the instant applications with leave to renew on proper papers, counsel is cautioned that any re-submission must comply with the directives of this decision and applicable procedural law.

In consolidating, then denying similar apparently "robo-signed" applications, unrelated to the instant matters, this court scheduled a hearing to determine the actual basis for the affiant's "personal knowledge". At the hearing, this court was informed, that upon learning from the city marshal that the default warrant request was rejected by the court because of a problem with the affidavit, common practice in this county (Bronx County) is for the petitioner to subsequently submit a new default warrant application containing an identical affidavit sworn to at a later date, rather then requisitioning the court file to see the precise reason for the court's rejection of the [*5]application and submit an affidavit curing such deficiencies.

This court holds that the common practice of resubmitting applications which are supported by previously insufficient affidavits, which fail to correct the prior defects, is contrary to the law, against public policy and unacceptable to this court. This practice merely overburdens an already overburdened court system [FN13].

The law [FN14] requires that the re-submission of any application, not submitted on notice, contain an affidavit stating the result of any prior application for similar relief, and specify any new facts, that were not previously demonstrated. Specifically, the CPLR requires that:

"[a]n ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown" CPLR §2217(b).

Accordingly, any subsequent application for the same relief as sought herein, must comply with the requirements of CPLR §2217(b) and the directives of this Order.

ORDER

Based upon the foregoing, the instant applications are denied with leave to renew on proper submissions, in compliance with the directives of this Order.

Any named respondent, if so inclined, may appear in court and file any appropriate document with the proper clerk.

The foregoing constitutes the Decision and Order of the court.

March 20, 2013

_______/s/______________

JHC

ANDRES SANTIAGOTAISHA ESTRADA

2164 Barnes Avenue, No.3372146 Barnes Avenue, #405

Bronx, NY 10462Bronx, NY 10462

YAMILKA CARRASQUILLODENNIS RAZMAN

2136 Wallace Avenue, # 5752148 Barnes Avenue, #212

Bronx, NY 10462Bronx, NY 10462

BENJAMIN CABRERAPEDRO SOTO

2148 Barnes Avenue, #2172148 Barnes Avenue, #615

Bronx, NY 10462Bronx, NY 10462 [*6]

BERNANDO CRUZSAMBALA GOKOU

2148 Barnes Avenue, #6172000 Valentine Avenue, #131

Bronx, NY 10462Bronx, NY 10457

JOSE LUPERONOUMAROV TRAORE,

3025-27 Godwin Terrace, #1LM1187 Anderson Avenue, #6E

Bronx, NY 10463Bronx, NY 10452

MILAGROS MENDEZCARMEN ROSADO,

1380 University Avenue, #3F1880 Valentine Avenue, #301

Bronx, NY 10452Bronx, NY 10457

Gutman, Mintz, Baker & SonnenfeldtBINTOU WAGGEH

813 Jericho Turnpike2000 Valentine Avenue #604

New Hyde Park, NY 11040Bronx, NY 10457 Footnotes

Footnote 1: Contrary to precedent that "[an] affidavit should contain separate, numbered paragraphs for each factual allegation" GBI Acupuncture, PC v Esurance Ins. Co., 38 Misc 3d 1208(A) (Civ Ct Kings County, [2012]) referencing, generally Phillips v Girdich, 408 F3d 124 (Ct App 2d Cir, [2000]) "[in order] to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers" GBI Acupuncture, PC v Esurance Ins. Co., supra, the thirteen (13) initial affidavits submitted in the matters currently before the court fail to contain numbered paragraphs. As a result of petitioner's failure to sequentially number each paragraph of any of the affidavits, this court is unable to direct the reader to any paragraph by specific paragraph number, when referring to specific language in the affidavits.

Footnote 2: See, Affidavits of Non Military Status and Rent Owed at unnumbered paragraph and Affidavit of Rent Due and Owing at ¶2.

Footnote 3: "[T]he court found that the affidavit ... was also insufficient since the affidavit fails to indicate the specific sources of his knowledge' (e.g. business records or other documents he may have researched or reviewed) ... and contains conclusory allegations regarding his personal knowledge," GBI Acupuncture, P.C. v Esurance Ins. Co., 38 Misc 3d 1208(A) [Civ Ct Kings County, 2012] citing Barraillier v City of New York, 12 AD3d 168 [1st Dept, 2004].

Footnote 4: See Civil Practice Law and Rules ("CPLR") §4518.

Footnote 5: "A robo-signer' is a person who quickly signs [numerous] ... documents in a [limited period of time, and] despite swearing that he or she has personally reviewed the ... documents ... has not done so" Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 (Sup Ct NY County, [2010]).

Footnote 6: Administrative Order of the Chief Administrative Judge, AO/548/10, mandating a specific filing requirement addressed to remedy this flawed practice, available at http://www.nycourts.gov/press/pr2010_12.shtml; see also, Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 (Sup Ct, Kings County, [2010]) foreclosure action is dismissed "without prejudice, with leave to renew [on proper papers, which shall contain] an affidavit from Erica A. Johnson—Seck, a ....'robo-signer' explaining her employment status."

Footnote 7: "A similar requirement, mandating verification of plaintiff's ownership of the debt and its amount, may improve the integrity of consumer collection cases ..." American Express Bank v Tancreto, CV-24043-11/KI [April 17, 2012]); see also,"The affidavit at hand has the look and feel of a robo-signed' affidavit that was prepared in blank in advance of knowing who would sign the affidavit'." American Exp. Centurion Bank v Badalamenti, 30 Misc 3d 1201(A) (Dist Ct, [2010]) citing American Express Centurion Bank v. Bajek, 29 Misc 3d 1226A, at fn. 2 [Sup Ct Orange County, 2010]). And "just like in Bajek, the affidavit contains a rubber stamped' opening sentence identifying Ms. Hartje as the affiant, followed by a general description of plaintiff's business record practices and a fill in the blanks' statement of facts" American Exp. Centurion Bank v Badalamenti, 30 Misc 3d 1201(A) (Dist Ct, [2010]); and "[p]laintiff accordingly has failed to set forth evidentiary proof in admissible form' respecting the business records that document the amount of defendant's alleged indebtedness" American Exp. Centurion Bank v Badalamenti, supra, citing Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1331 (4th Dept, [2009]).

Footnote 8: Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 (2nd Dept, [2010]) testimony or affidavit of third party biller is insufficient to lay the foundation necessary to establish that the claim form and billing documents are business records; see also Viviane Etienne Medical Care, P.C. v Country—Wide Ins. Co., 31 Misc 3d 21 (App Term 2nd, 11th & 13th Jud Dists, [2011]).

Footnote 9: Intervale Ave Assoc v Donlad, 2013 NY Slip Op 50210(U) (Civil Court, Bronx County, [2013]) "this court holds, that the practice of robo-signing" is as intolerable in Residential Housing Court proceedings, as the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, found the practice to be in Residential Foreclosure actions" (emphasis in original).

Footnote 10: American Express v Badalamenti, supra, quoting American Express v Bajek, supra.

Footnote 11: American Express v Badalamenti, supra, see also Discover Bank v Parisi, supra.

Footnote 12: See infra, fn 8.

Footnote 13: "The Bronx handles more than 85,000 housing court cases annually, more than any other borough, making it New York City's epicenter for disputes between landlords and tenants." (Winnie Hu, Report Says Bronx Rent Disputes Favor Landlords, NY Times, March 14, 2013, §NY Region, available at: http://www.nytimes.com/2013/03/15/nyregion/report-says-bronx-rent-disputes-favor-landlords.html?_r=0).

Footnote 14: CPLR §2217(b).