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Home Loan Servs., Inc. v. Moskowitz

Appellate Term of the Supreme Court of New York, Second Department
Feb 14, 2011
31 Misc. 3d 37 (N.Y. App. Term 2011)

Summary

nailing notice to quit on door of property did not suffice to meet statutory requirement that notice be "exhibited to" occupant

Summary of this case from Roberts v. United States

Opinion

No. 2009-1851 K C.

February 14, 2011.

APPEAL from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), dated June 5, 2009. The order denied a motion by occupants Jacob Markowitz and Sarah Markowitz to dismiss the petition as against them in a proceeding brought pursuant to RPAPL 713 (5).

Clair Gjertsen, Scarsdale ( Ira S. Clair of counsel), for Jacob Markowitz and another, appellants. Knuckles, Komosinski Elliott, LLP, Elmsford ( Jordan J. Manfro and Robert T. Yusko of counsel), for Home Loan Services, Inc., respondent.

PESCE, P.J., WESTON and Rios, JJ.


OPINION OF THE COURT

MEMORANDUM.

Ordered that the order is reversed, without costs, and the motion by occupants Jacob Markowitz and Sarah Markowitz to dismiss the petition as against them is granted.

Prior to commencing this summary proceeding, petitioner served a 10-day notice to quit upon occupants, together with a certified copy of the referee's deed, by "nail and mail" service, after four attempts at personal service had been made at different times on different days. Occupants Jacob Markowitz and Sarah Markowitz (appellants) moved to dismiss the petition as against them on the ground that attaching a copy of the referee's deed to a 10-day notice to quit served by "nail and mail" is not sufficient to satisfy the requirement of RPAPL 713 (5) that a deed be "exhibited" to the respondent. The Civil Court denied appellants' motion. We reverse.

RPAPL 713 provides in pertinent part:

"A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: . . .

"5. . . . [T]he property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him."

While this statute provides that a notice to quit may be served in the same manner as a notice of petition and petition, it does not make the same provision for the referee's deed. Instead, the statute specifically requires that the deed be "exhibited" to the respondent. In our view, and in light of the strong policy prohibiting unlawful evictions ( see generally Bill Jacket, L 1981, ch 467), attaching a copy of the referee's deed to a 10-day notice to quit served by "nail and mail" was insufficient to satisfy the requirement of exhibition of the deed pursuant to RPAPL 713 (5) ( see Colony Mtge. Bankers v Mercado, 192 Misc 2d 704 [Sup Ct, Westchester County 2002]; but see Novastar Mtge., Inc. v LaForge, 12 Misc 3d 1179 [A], 2006 NY Slip Op 51306[U] [Sup Ct, Greene County 2006] [discussing a writ of assistance]; Deutsche Bank Natl. Trust Co. v Resnik, 24 Misc 3d 1238 [A], 2009 NY Slip Op 51793[U] [Nassau Dist Ct 2009]; GRP/AG REO 2004-1, LLC v Friedman, 8 Misc 3d 317, 318-319 [Just Ct, Town of Ramapo, Rockland County 2005]). Accordingly, the order is reversed and appellants' motion to dismiss the petition as against them is granted.


Summaries of

Home Loan Servs., Inc. v. Moskowitz

Appellate Term of the Supreme Court of New York, Second Department
Feb 14, 2011
31 Misc. 3d 37 (N.Y. App. Term 2011)

nailing notice to quit on door of property did not suffice to meet statutory requirement that notice be "exhibited to" occupant

Summary of this case from Roberts v. United States

In Home Loan Servs., Inc. v. Moskowitz, 31 Misc. 3d 37, 920 N.Y.S.2d 569 (App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011), this court held that attaching a certified copy of the referee's deed to the notice to quit did not satisfy the requirement of RPAPL 713 (5) that the deed be exhibited to the respondent, where the notice to quit was served by conspicuous-place service.

Summary of this case from Plotch v. Dellis
Case details for

Home Loan Servs., Inc. v. Moskowitz

Case Details

Full title:HOME LOAN SERVICES, INC., Successor by Merger to NATIONAL CITY HOME LOAN…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Feb 14, 2011

Citations

31 Misc. 3d 37 (N.Y. App. Term 2011)
2011 N.Y. Slip Op. 21051
920 N.Y.S.2d 569

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