Wells Fargo Bank, N.A. v Mekamkwe

[*1] Wells Fargo Bank, N.A. v Mekamkwe 2019 NY Slip Op 51076(U) Decided on June 28, 2019 Civil Court Of The City Of New York, Bronx County Garland, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2019
Civil Court of the City of New York, Bronx County

Wells Fargo Bank, N.A., Petitioner-Landlord,

against

Patricia Mekamkwe, JANE SMITH, JANE SMITH 2, MS. WILLIAMS, TROY GRIFFIN, BERNARD KNIGHT, JANE DOE (REFUSED NAME), & JOHN AND/OR JANE DOE, Respondent-Tenants.



47950/18



Appearances of Counsel

For Petitioner

Aleksandra K. Fugate, Esq.

Woods Oviatt Gilman LLP

700 Crossroads Building

2 State Street

Rochester, NY 14614

(585) 987-2800

For Respondent

Emilio Paesano, Esq.

Mobilization for Justice, Inc.

424 East 147th Street, 3rd Floor

Bronx, NY 10455

(212) 417-3818
Christel F. Garland, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion to dismiss the petition and cross-motion to amend the petition:

Papers Numbered

Notice of Motion and Affidavits Annexed 1-2

Order to Show Cause and Affidavits Annexed 4-6

Answering Affidavits

Replying Affidavits

Exhibits 3 ,7-14

Other

Petitioner commenced these three separate holdover proceedings seeking to recover possession of Unit No.1, Unit #2, and Unit #3, three separate units of the property located at 1408 Prospect Avenue, Bronx, NY. Respondent Troy Griffin ("Respondent" herein) appeared by counsel, interposed an answer, and the three proceedings were later consolidated by stipulation between the parties [FN1] . Respondent now seeks to an order granting summary judgment in his favor pursuant to CPLR § 3212 (b), dismissing the petition for failure to state a cause of action pursuant to CPLR § 3211 (a) (7), CPLR § 3013, and RPAPL § 741 (3) citing, inter alia, Petitioner's failure to properly describe the premises.

Specifically, Respondent contends that the petition describes Respondent Griffin as being in possession and control of all three floors in the subject building, whereas he only occupies one room on the first floor of the building. According to Respondent, he moved into the subject property sometime in 2011, and entered into an oral agreement with Patricia Mekamkwe, the former owner, pursuant to which he was to occupy the first room to the left of the first floor of the building which he has continued to occupy since then. However, in all three petitions and predicate notices, Petitioner describes Respondent and Respondents Mekamkwe, Williams, and Smith as being in possession and control of all three floors of the building despite knowing each Respondent's actual dwelling space and/or address. This is especially true, Respondent argues, given the fact that Petitioner filed affidavits of service in a prior foreclosure action commenced against Respondents in which it described Respondents Williams and Smith as being residents of specific areas of the building, and described Respondent Mekamkwe as residing at a different address altogether.

Petitioner opposes and asserts that it sufficiently provided detailed descriptions of the premises sought to be recovered, and named the appropriate parties based on the information it obtained from the process server who described the property has containing four units. In addition, Petitioner asserts that it described the location of each tenant's unit in this manner because it was unable to gain access to the premises to inspect and determine with certainty the number of rooms being occupied by the various occupants.

Pursuant to CPLR § 3212 (a), any party may move for summary judgment in any action, after issue has been joined. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (see CPLR § 3212 [b]). It is well-settled that on a motion for summary judgment pursuant to CPLR § 3212, "it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form" (internal quotation marks and citation omitted) (Zuckerman v City of New [*2]York, 49 NY2d 557,562, 427 NYS2d 595 [1980]). To defeat such a motion, "the opposing party must show facts sufficient to require a trial of an issue of fact", and "normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form" (id.). However, the rule is more flexible for the opposing party who "may be permitted to demonstrate an acceptable excuse for his failure to meet the strict requirement of tender in admissible form" (id.). Notwithstanding the flexibility of the rule, the party opposing summary judgment "must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist" such that "bare, conclusory allegations are insufficient for this purpose" (Aetna Casualty & Surety Company v Schulman, 70 AD2d 792, 417 NYS2d 77, 79 [1st Dept 1979]). In addition, CPLR § 3013 requires that statements in a pleading be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. Similarly, RPAPL § 741 (3) requires that the petition in a summary proceeding describe the premises from which removal is sought.

It is well-settled that "a summary proceeding is a special proceeding governed entirely by statute" and "there must be strict compliance with the statutory requirements to give the court jurisdiction" MSG Pomp Corp v Doe, 185 AD2d 798, 799-800, 586 NYS2 965, 966 [1st Dept 1992]). In City of New York v Mortel, 161 Misc 2d 681, 616 NYS2d 683 (App Term, 2nd and 11th Jud Dists 1994), a proceeding involving similar issues to the issues in the case at bar, the Appellate Term affirmed an order of the lower court which held that the actions of the petitioner in that proceeding failed to comply with RPAPL § 741 (3). In Mortel, the petitioner commenced a squatter proceeding against three occupants of the same building by nailing and mailing one copy of the notice of petition and petition to the common entrance door of the building. The Appellate Term noted that "the return on appeal does not indicate that petitioner made any attempt to contact the occupants or to have any agent visit the premises to discern how many families lived there," and held that essentially Petitioner "served the 'building' in order to vacate same" (Mortel, 161 Misc 2d 681). The lower court in Mortel dismissed the holdover petition and held that "an occupant can only be evicted from the space he actually occupies," and reasoned that if it were otherwise the marshal "would be unable to determine the proper unit against which to execute the warrant of eviction." (City of New York v Mortel, 156 Misc 2d 305, 592 NYS2d 912 [Civ Ct, Kings County 1992).

Here, Petitioner commenced three separate proceedings naming all the building occupants as occupants of all the three floors in the building without specifying which occupant occupies what unit. When Respondent challenged Petitioner's description of the space he actually occupies in the building, Petitioner did not dispute the claim. Rather, Petitioner asserts that it received the information it used to describe the location of the apartments from its process server, and asserts that Petitioner was unable to gain access to the property to inspect the building and determine with certainty the exact spaces occupied by the respondents. However, this is precisely what Petitioner was required to do prior to commencing these proceedings, and its description of the apartments here does not provide enough information for a marshal to determine which units and which occupants are or are not subject to the warrant of eviction once it issues. Petitioner's argument that it lacked the requisite knowledge to provide specific descriptions of where Respondents actually reside within the subject building is unavailing as there was prior litigation between the parties where the descriptions of the units was more precise than the descriptions provided here, and Petitioner had the opportunity to investigate. Moreover, Petitioner did not commission its agent to the property [*3]to investigate the different occupancies, and instead relied only on the information it obtained from the process server which is insufficient.

Based on the foregoing, Respondent's motion seeking an order dismissing the petition is granted and the petition is dismissed. The Court does not reach Respondent's remaining arguments. The Clerk of the Court is directed to prepare a judgment in favor of Respondent dismissing the petition.

This constitutes the decision and order of the Court.

DATED: June 28, 2019

____________________________

Christel F. Garland, JHC Footnotes

Footnote 1: Although the parties stipulated to the consolidation, the more appropriate practice is to seek permission from the Court as provided by CPLR § 602 [a].