Opinion
2012-08-6
U.S. BANK NATIONAL ASSOCIATION, Petitioner, v. Anna EICHENHOLTZ and Roger Eichenholtz, Respondent.
Richard P. O'Brien Esq., for Petitioner. Ira S. Clair, Esq., for Respondent.
Richard P. O'Brien Esq., for Petitioner. Ira S. Clair, Esq., for Respondent.
SALVATORE A. LAGONIA, J.
The Respondent having moved this Court for an order, dismissing the Summary Proceeding before the Court, and the Petitioner having opposed said motion, and the issues raised by said motion having been duly considered by this Court;
NOW, on reading and filing the notice of motion dated 31 May 2012, and the affidavit of IRA S. CLAIR, Esq., sworn to on the 31st day of May, 2012, with proof of service thereof, in support of the motion, and the affirmation of RICHARD P. O'BRIEN Esq., sworn to the 10th day of July, 2012, in opposition thereto, and due consideration having been had, the Court renders the following decision:
In the action before the Court, the Petitioner seeks an order of eviction citing an action for foreclosure, which was commenced and a final judgement of foreclosure and sale was entered by the Supreme Court on November 2, 2009. The Respondents in that action allegedly remain in possession of the property, described as 2595 Evergreen Street, Yorktown Heights, New York which is within the jurisdiction of this Court.
The Respondent argues that pursuant to RPAPL Article 7, Specifically 713(5), strict compliance is required, in order to sustain an order of eviction. That Statute requires the Petitioner to “personally exhibit” the Referee's Deed to the Respondent. Respondent cites Home Loan Servs., Inc. v. Moskowitz, 31 Misc.3d 37, 920 N.Y.S.2d 569 wherein the court held that since the RPAPL literally requires the deed to be “exhibited” to the Respondent, attaching a certified copy of the Referee's Deed to a Ten Day Notice to Quit, which was then served by Substituted Service, was insufficient to meet the statutory requirement.
The Petitioner argues that RPAPL 713(5) is satisfied when the Referee's Deed is exhibited through substituted service, as occurred in this matter. They point to the difference between substituted service in Moskowitz, of “Nail and Mail”, as opposed to the type of service used in this matter upon a “Person of Suitable Age and discretion.”
This Court is therefore left with the question as to whether the substituted service in Moskowitz, is sufficiently different than the substituted service in this matter, in order to come to a different result.
However, the Court in Moskowitz did not make that distinction and instead implied that the term “exhibited” has to be taken literally. As in most issues with the RPAPL, the strict construction of the statute is required as a condition precedent to an eviction judgment.
The statute specifically requires that the deed be “exhibited” to the respondent. Indeed, the Moskowitz Court came to this conclusion, even after the evidence showed that the Petitioner made four failed attempts at personal service. The Court found that, even with those efforts, the use of substituted service was insufficient to satisfy the requirement of “exhibition” of the deed pursuant to RPAPL 713. Therefore, we can come to no other conclusion, in that the Court has already spoken on this matter and sufficient contract does not exist between the two.
IT IS THEREFORE ORDERED, that said motion to dismiss this Summary Proceeding, be granted.
SO ORDERED.