Aviles v Santana

[*1] Aviles v Santana 2017 NY Slip Op 50887(U) Decided on July 5, 2017 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2017
Civil Court of the City of New York, Bronx County

Maria E. Aviles, Petitioner-Landlord,

against

Carlos Santana, Respondent-Tenant. "JANE DOE" #1, "JANE DOE" #2, Respondents-Undertenants.



26087/2017



Attorney for Petitioner:

Mahandra Persaud, Esq.

4200 White Plains Road

Bronx, New York 10466-3014

(718) 231-6737

Attorney for Respondent:

Nicole Summers, Esq.

The Bronx Defenders

360 East 161st Street

Bronx, New York 10451

(347) 842-1418
Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss:

Papers Numbered

Notice of Motion, Affirmation & Exhibits A-B 1

Respondent's Memorandum of Law in Support 2

Petitioner's Affirmation in Opposition & Exhibits A-C 3

Upon the foregoing papers and for the following reasons, Respondent's Motion to Dismiss is decided as follows.

PROCEDURAL & FACTUAL BACKGROUND

This is a holdover eviction proceeding in which Petitioner, Maria E. Aviles, alleges that Respondent, Carlos Santana, is the tenant of record "pursuant to a weekly agreement with the Petitioner," Petition at ¶ 2, which was terminated by written notice, Petition at ¶ 7. A copy of the notice, signed by Robert Gonzalez as Ms. Aviles' agent, with proof of service, is attached to the Petition. Petitioner alleges that the premises are not a multiple dwelling and are not subject to rent regulation. Petition at ¶¶ 9, 10. The Petition is signed and verified by Robert Gonzalez as Ms. Aviles's agent, and in the sworn verification Mr. Gonzalez states that he is Petitioner's "attorney-in-fact/agent" and that he knows the contents of the Petition to be true to his own knowledge, except as to those matters alleged upon information and belief, as to which he believes them to be true. Attached to the Petition is a New York Statutory Short Form Power of Attorney, in which Ms. Aviles appointed Mr. Gonzalez as her agent with broad powers, including the authority to act on her behalf as to "real estate transactions" and "claims and litigation". Both Ms. Aviles and Mr. Gonzalez signed the Power of Attorney, in the appropriate sections of the form, and had their signatures acknowledged by a notary public on February 3, 2017.

The Petition was returnable May 22, 2017, on which date the proceeding was adjourned to June 12, 2017 for Respondent to meet with an attorney. Respondent retained counsel, who filed a motion, returnable June 12, 2017 and served on June 7, 2017, to dismiss under Rule 3211(a)(7) of the Civil Practice Law and Rules ("CPLR") for failure to state a cause of action due to improper verification of the Petition. Respondent's attorney argues in her Memorandum of Law that the verification is defective for three reasons: First, because an agent acting under a power of attorney for the petitioner-landlord is not among those authorized to maintain a proceeding under Section 721 of the Real Property Actions and Proceedings Law (RPAPL); second, because such an agent lacks authority to verify a petition under RPAPL § 741 and CPLR § 3020(d); third, because the verification fails to meet CPLR R 3021's requirement that where a verification is made by a person other than a party, the verifier must set forth the "grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party."

In the alternative, Respondent requests leave to interpose an Amended Answer pursuant to CPLR R 3025 and 22 NYCRR § 208.7.

Petitioner opposes, arguing that an agent under a power of attorney is permitted to verify a petition and that respondent failed to challenge the verification with "due diligence" as required by CPLR R 3022.

DISCUSSION

First, the court will address the timeliness of Respondent's challenge to the verification. Under CPLR R 3022, a party may treat a pleading with a defective verification as a nullity "provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so." Further, under CPLR R 2101(f), "The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections." The short time-frames for rejection of a pleading or paper are tempered by CPLR § 2004, which allows the court to "extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown".

The Court of Appeals "has not employed a specific time period to measure due [*2]diligence" under CPLR R 3022. Miller v Board of Assessors (91 NY2d 82, 86 n 3, 689 NE2d 906, 908 n 3, 666 NYS2d 1012, 1014 n 3 [1997]). The timeliness of an objection to the propriety of a verification "must turn on the particular circumstances." Fort Holding Corp v Otero (157 Misc 2d 834, 836, 598 NYS2d 908, 910 [Civ Ct NY Co 1993]). See, e.g., Oceana Apartments v Spielman (164 Misc 2d 98, 623 NYS2d 724 [Civ Ct Kings Co 1995])(motion brought by counsel for previously unrepresented tenant challenging verification of the petition deemed timely, even though case pending for six week). A court's imposition of a 24-hour deadline for challenging a pleading based upon defective verification, as Petitioner's attorney argues is required by the "due diligence" standard, see Lentlie v Egan (94 AD2d 839, 463 NYS2d 542 [3rd Dep't 1983]); O'Neil v Kasler (53 AD2d 310, 385 NYS2d 683 [4th Dep't 1976]); Westchester Life, Inc v Westchester Magazine Co (85 NYS2d 34, 1948 NY Misc LEXIS 3702 [Sup Ct NY Co 1948]), " is extraordinarily rare and curiously, not one court that has done so cites to the actual origin of the alleged rule." Rodriguez v Westchester County Bd of Elections (47 Misc 3d 956, 958, 5 NYS3d 826, 828 [Sup Ct Westch Co 2015])(rejecting petitioner's claim that by failing to assert lack of verification within 24 hours of being served respondents waived their claim of defective Election Law petition). Factors to consider in determining "due diligence" include the amount of time elapsed between service of the faulty pleading and its rejection; the reasons for, and reasonableness of, time elapsed; whether the party already had counsel or is an attorney; whether the issue was raised at the first opportunity; and the manner in which the issue was raised. Rodriguez (47 Misc 3d at 962, 5 NYS2d at 831). "Ultimately, due diligence requires prompt attention, no undue delays, and no whiff of gamesmanship." Id.

In determining whether to take a strict view of the due diligence standard of CPLR 3022 as urged by petitioner, "the Court must also consider the litigation approach taken by [petitioner's] counsel with respect to compliance with that section and the verification requirements generally." Zibell v County of Westchester (2007 NY Misc LEXIS 5161 [Sup Ct Westch Co 2007])(court exercised its discretion to consider the merits of defendant's challenge to the sufficiency of plaintiffs' verifications on their complaint and bill of particulars, raised after two-month and one-month delays; upon such consideration, plaintiffs' verifications found to be defective and stricken, with permission to be reserved with proper verifications without further motion practice within a proscribed time period). Further, "a generally prescribed short time limit for due diligent notification of the rejection of a verification should not be inflexibly applied as the standard in all proceedings and actions." Fort Holding Corp v Otero (157 Misc 2d at 836, 598 NYS2d at 910)(rejection of verification within 20 hours of the date attorney agreed to represent non-English-speaking respondent-tenant found to meet the due diligence standard).

Here, it is an appropriate exercise of the court's discretion to find Respondent's challenge to Petitioner's verification of its Holdover Petition to be timely. First, it was made by motion on notice, not simply by returning the rejected pleading to the drafter or raising the issue orally on the adjourned date at which Respondent first appeared by counsel. Second, respondent was not otherwise represented by counsel and appeared pro se on the initial return date of May 22, 2017. Nevertheless, by the first adjourned date three weeks later on June 12, 2017, not only had she retained counsel but such counsel had served (on June 7) a motion returnable June 12 challenging the verification. This was a reasonable period of time within which to challenge the verification under the circumstances of this case.

Finding Respondent's challenge to Petitioner's verification to be sufficiently timely, however, does not mean that the court finds Respondent's objections to that verification to [*3]warrant dismissal of the Petition. Addressing Respondent's three arguments in order, while it is correct that an agent acting under a power of attorney, such as Mr. Gonzalez, is not authorized to maintain a summary eviction proceeding in his own name under RPAPL § 721, Cortazzo v Reynolds (149 Misc 2d 210, 571 NYS2d 178 [App Term 2nd Dep't 1991]), this proceeding was not brought in the agent's name. Rather, it is clear from the Petition that it was brought correctly in the name of the principal, Maria E. Aviles. See, e.g., Owego Properties v Campfield (182 AD2d 1058, 583 NYS2d 37 [3rd Dep't 1992]); RAC Gardens Co v Rodriguez (1989 NY Misc LEXIS 934 [Sup Ct Kings Co 1989]); and compare Fallarino v Fallarino (2017 NY Misc LEXIS 2091, 2017 NY Slip Op 27186 [App Term 2nd Dep't 2017])(reversing lower court and granting respondent-tenant's motion to dismiss holdover petition where petitioner's mother, a nonparty to the proceeding, had a life estate, petitioner was "merely a remainderman," and "[t]he fact that petitioner may bear his mother's durable power of attorney does not permit him to commence this proceeding in his own name"). Respondent has not challenged Petitioner's assertion that she is the owner and landlord of the subject premises who has the right to bring the proceeding under RPAPL § 721(1).

Respondent's second argument that an agent acting under a power of attorney lacks authority to verify a petition under RPAPL § 741 and CPLR § 3020(d) is also unavailing. Respondent notes that RPAPL § 741 permits a petition to be verified by, inter alia, "a legal representative, attorney or agent of [a person authorized to maintain a summary proceeding under RPAPL § 721] pursuant to subdivision (d) of section thirty hundred twenty of the [CPLR]," and argues that none of the situations described in CPLR 3020(d) apply as petitioner "is neither a domestic corporation, a governmental agency, nor a foreign corporation." Respondent's Memorandum of Law at p. 5. However, in making this argument Respondent has overlooked that part of CPLR 3020(d)(3) that permits verification by a legal representative, attorney or agent where "all the material allegations of the pleading are within the personal knowledge of an agent". See, e.g., Owego Properties v Campfield, supra. This subsection applies here where the agent swears in his verification that he "know[s] the contents [of the Petition] to be true to my own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters deponent believes them to be true." Of the 12 numbered paragraphs of the Petition, the only one "alleged upon information and belief" is paragraph 7, relating to the service of the predicate termination notice, a copy of which is attached to the Petition along with a sworn affidavit of service of a licensed process server.

Moreover, "[a] person holding power of attorney for the landlord may verify the petition." Andrew Scherer, Esq. & Hon. Fern A. Fisher, Residential Landlord-Tenant Law in New York, § 7:134 [2016-17 ed]. See also Rosenberg v Suares (105 Misc 2d 611, 432 NYS2d 620 [Civ Ct NY Co 1980]) (petitioner's daughter, acting as her mother's agent under a power of attorney, was permitted to verify the petition for her mother). "If it were the rule that only a party could verify a pleading, then CPLR 3020(d)(3)'s permitting an attorney or agent to verify under certain circumstances would be rendered meaningless, which is of course an improper statutory construction." Fort Holding Corp v Otero (157 Misc 2d at 837, 598 NYS2d at 911, citing McKinney's Cons Laws of NY, Book 1, Statutes § 144, and Palmer v Van Santvoord (154 NY 612, 616 [1897]). Accordingly, Mr. Gonzalez, as Petitioner's agent acting under a New York State Statutory Short-Form Power of Attorney, is permitted to verify the within Holdover Petition.

The court does agree with Respondent's third argument that the verification is defective [*4]for failure to state both why Petitioner did not verify the petition and the "grounds of his belief as to all matters not stated upon his knowledge" as required by CPLR R 3021. The Court of Appeals has held that where someone other than a party verifies a pleading, "there must be careful compliance with the mandates of CPLR 3021." Giambra v Commissioner of Motor Vehicles (46 NY2d 743, 745, 386 NE2d 251, 252, 413 NYS2d 643, 644 [1978]). See also, e.g., Hablin Realty Corp v McCain (123 Misc 2d 777, 478 NYS2d 224 [App Term 1st Dep't 1984])(finding there to be nothing inconsistent between CPLR R 3021 and RPAPL § 741 and that CPLR 3021's verification requirements apply to eviction proceedings brought in Civil Court).

However, where a verification is made by someone other than the party, and has been found to be noncompliant with CPLR 3021, courts allow a cure of the defective verification. For example, Hablin Realty Corp v McCain, supra, was a nonpayment proceeding in which the lower court granted the tenant's motion to dismiss where the landlord's attorney verified the petition but did not set forth the reason why the verification was not made by the landlord as required by CPLR 3021. In affirming, the Appellate Term, First Department noted that while the lower granted the tenant's motion without prejudice and with leave to the landlord to serve an amended petition with a proper verification, the lower court also, "rather than dismissing the petition with leave to begin again, could have simply afforded landlord the opportunity to amend the verification." (123 Misc 2d at 778, 478 NYS2d at 225) Especially where no prejudice has been shown, a defective verification may be treated as inconsequential, id.; HSBC Bank USA, NA v Anderson (2009 NY Misc LEXIS 4955, 2009 NY Slip Op 32526[U] [Sup Ct NY Co 2009])("unverified pleadings are capable of being corrected, absent any prejudice to the opposition party"), and an amended verification deemed duly served and filed in the interest of judicial economy, STP Assoc, LLC v Drasser (33 Misc 3d 1235[A], 941 NYS2d 541 [Dist Ct, 1st Dist, Nassau Co 2011]). See also, e.g., Genesee Gateway Houses v Khalid (2003 NY Misc LEXIS 468, 2003 NY Slip Op 50809[U] [City Ct Roch 2003])(dismissing nonpayment proceedings without prejudice based on verifications, amended verifications and petitioner's attorney's verifications that were all defective because they contained no explanation why they were not verified by the party and where, "Moreover, when given an opportunity to cure the verifications in these actions, petitioner failed to do so"); SLG Graybar, LLC v John Hannaway Law Offices (182 Misc 2d 217, 696 NYS2d 645 [Civ Ct NY Co 1999])(finding that respondent failed to exercise due diligence in objecting to nonverified petition and, even if the court were to find the defect not waived, petitioner would be granted leave to amend); Oceana Apartments v Spielman, supra (finding defective verification to be an insufficient basis for dismissal and permitting petitioner to move in writing to amend the verification); Fort Holding Corp v Otero (157 Misc 2d at 838, 598 NYS2d at 911)(while finding verification to be defective because it did not state the reason why it was not made by petitioner, and dismissing petition without prejudice, nevertheless permitting Petitioner to "plead again by supporting its petition by an amended verification, or commence a new proceeding if it so desires"); Cucinotta v Saljon Enterprises, Ltd (140 Misc 2d 681, 683, 532 NYS2d 39, 41 [Civ Ct NY Co 1988])(finding absence of a statement of the reason why petition was not verified by petitioner to be "at most an amendable irregularity which may be disregarded"); New York v Brown (119 Misc 2d 1054, 1056, 465 NYS2d 388, 390 [Civ Ct Kings Co 1982])(finding "the absence of any demonstrable prejudice to the tenants", court allowed correction of irregularities in the verifications of thirteen nonpayment petitions); Lefrak v Robinson (115 Misc 2d 256, 258, 454 NYS2d 571, 572 [City Ct Mt Vernon, [*5]Westch Co 1982])(finding verification to be a nullity for failure to specify the authority for the verification by the party's attorney, dismissing the petition, granting petitioner leave to serve an amended petition within seven days and noting the suggestion of David D. Siegel, Esq., in "his learned Practice Commentaries" to McKinney's Consolidated Laws of New York, that instead of dismissal "the petitioner be permitted to serve an amended petition, duly verified").

Accordingly, for the reasons stated above, Respondent's motion to dismiss is denied, and Petitioner is directed to serve and file an amended verification that comports with the requirements of CPLR R 3021 within two weeks of receiving this decision.

Respondent's request for leave to serve and file an Amended Answer is denied. No such proposed Amended Answer is attached to the moving papers, Hoisting Machinery Co v Elderfields Reservation, Inc (195 AD 893, 185 NYS 933 [1st Dep't 1921]); Candelario v MTA Bus Co (21 Misc 3d 1148[A], 2008 NY Slip Op 52544[U][Sup Ct Bx Co 2008])("Since the court must examine the proposed pleading for patent sufficiency it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion"), nor is there an original Answer in the court file or attached to the moving papers, making the request for leave to serve and file an Amended Answer premature.

However, in a holdover proceeding, under RPAPL § 743 the answer is to be asserted or filed "at the time when the petition is to be heard. This statute has routinely been interpreted by the Courts to mean that the time for Respondent to file an answer is extended by adjournment of the proceeding unless "arrangements to the contrary" have been made. Gluck v Wiroslaw (113 Misc 2d 499, 501, 449 NYS2d 567, 568 [Civ Ct Kings Co 1982]); see also City of New York v Candelario (156 Misc 2d 330, 601 NYS2d 371 [App Term 2nd Dep't 1993], aff'd in part, rev'd in part on other grounds, 223 AD2d 617, 637 NYS2d 311 [2nd Dep't 1996])(tenant's appearance did not constitute waiver of jurisdictional defense because adjournment for tenant to obtain counsel extended tenant's time to answer); In-Town Shopping Centers Co v Demottie (17 Misc 3d 134[A], 851 NYS2d 70 [App Term 2nd Dep't 2007]) (adjournment to obtain counsel implicitly extends tenant's time to answer); Picken v Staley (2011 NY Slip Op 33237[U][Civ Ct NY Co 2011]). Accordingly, Respondent is directed to serve and file an Answer within two weeks of receiving Petitioner's Amended Verification.

This proceeding is restored to the court's calendar for settlement or trial on August 18, 2017 at 9:30 am. This constitutes the Decision and Order of this Court. Copies of this Decision and Order will be mailed to the parties' counsel or, if they have a courthouse mailbox, left there for pick up.

_________________________

Diane E. Lutwak, Hsg. Ct. J.

Dated: Bronx, New York

July 5, 2017