Opinion
18015/2019
01-13-2020
597 PROSPECT AVE LLC, Petitioner, v. Mary SYLVESTER-NORED, Respondent-Licensee, Milton Nored, Respondent-Licensee, "John Doe" and "Jane Doe", Respondent-Unknown Occupants.
Petitioner's Attorney: Raymond Kenney, Esq., Mark H. Cohen & Associates PC, 1942 Williamsbridge Road, 2nd floor, Bronx, New York 10461 Respondents: Ms. Mary Sylvester-Nored, Mr. Milton Nored, John Doe/Jane Doe
Petitioner's Attorney: Raymond Kenney, Esq., Mark H. Cohen & Associates PC, 1942 Williamsbridge Road, 2nd floor, Bronx, New York 10461
Respondents: Ms. Mary Sylvester-Nored, Mr. Milton Nored, John Doe/Jane Doe
Diane E. Lutwak, J.
For the reasons set forth below, and after having reviewed the evidence presented at trial and considered the arguments made by each side, the petition in this holdover proceeding is granted and Petitioner is awarded a judgment of possession.
BACKGROUND
This is a holdover eviction proceeding commenced by Petitioner 597 Prospect Ave LLC to recover possession of Apartment #1 at 597 Prospect Avenue in the Bronx, New York from Respondent-Licensees Mary Sylvester-Nored and Milton Nored, who are alleged to be occupants of the premises, as well as unknown occupants named as "John Doe" and "Jane Doe". Petitioner asserts in its petition that it purchased 597 Prospect Avenue following a judgment of foreclosure. Attached to the petition is a predicate Ten (10) Day Notice to Quit and attached to that notice is a copy of a Referee's Deed.
As the only Respondent to appear before this court was Mary Sylvester-Nored, references hereinafter to "Respondent" refer only to her unless otherwise stated.
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This case first appeared on the Housing Court's calendar in a Resolution Part on April 17, 2019. It was adjourned to May 20, referred to Part X, assigned to a trial part and scheduled for a pre-trial conference in Part T on June 5. On June 5 the case was adjourned to August 1 for trial. Respondent then secured a stay of this proceeding from the Bronx County Supreme Court in an action she had filed there earlier in the year under Index # 260410/2019 against, inter alia , Petitioner herein. The trial herein was adjourned three times while awaiting an outcome in that Supreme Court action — first to September 17, then to November 19 and then to January 8, 2020. On the latter date Petitioner's attorney provided the court with a copy of a Decision and Order issued by Supreme Court Justice Donald A. Miles on December 24, 2019 which, finding Ms. Sylvester-Nored's interest in the subject premises to have been extinguished by a judgment of foreclosure and sale entered on October 31, 2017, denied her motion for a temporary restraining order, vacated all stays and dismissed the action. Accordingly, this court conducted a trial on January 8, 2020.
TRIAL
At the trial Petitioner appeared by counsel, Respondent appeared pro se and each party presented the testimony of one witness. As Respondent had not yet filed an answer to the petition, on the record the court noted her answer to be a general denial.
Petitioner's witness was Yosef Schwartz, manager of the property at 597 Prospect Avenue. A certified copy of a Referee's Deed dated December 11, 2018 (with the additional notation, "delivered as of 2/6/2019"), transferring the property to Petitioner and referencing a foreclosure action between Wells Fargo Bank, N.A. and Respondent Mary Sylvester-Nored, was admitted into evidence without objection, as was a certified copy of a multiple dwelling registration statement dated March 5, 2019. The court took judicial notice of information on the website for the City's Department of Housing Preservation and Development (HPD) pursuant to Multiple Dwelling Law § 328(3), Triumph Baptist Church v. Anderson (2019 NYLJ LEXIS 3355 [Civ Ct NY Co 2019] ), including that 597 Prospect Avenue is a 5-unit building that is currently registered through September 1, 2020, that Yosef Schwartz is the managing agent and that Petitioner has an address at 670 Myrtle Avenue, Apt. 351, Brooklyn, New York 11205. The court also took judicial notice of the Notice of Petition, Petition, Ten-Day Notice to Quit and affidavits of service which were filed with the court and not challenged by Respondent.
On cross-examination when asked about the timing of Petitioner's purchase of 597 Prospect Avenue Mr. Schwartz testified that the foreclosure auction was held in January or February 2018 and then it took another year to close because of actions taken by Respondent. When asked about Petitioner's address, Mr. Schwartz testified that the business is registered in Rockland County and that Petitioner also has a business address at 670 Myrtle Avenue in Brooklyn. The court took judicial notice of Petitioner's active corporate status on the website for the New York State Department of State (NYS-DOS), La Sonde v. Seabrook (89 AD3d 132, 137, 933 NYS2d 195 [1st Dep't 2011] )(holding that "[t]his Court has discretion to take judicial notice of material derived from official government websites such as those generated by the New York State Department of State"), where Petitioner's address for service of process is listed as 46 Main Street, #244, Monsey, New York 10952.
Petitioner rested its case and Respondent then took the witness stand. Respondent testified that she has lived at 597 Prospect Avenue in the Bronx for eight years. She originally moved in to the building as a tenant in Apartment #4 on the fourth floor. She bought the building in 2012 and had a mortgage with Wells Fargo for $446,000. She moved down to Apartment #1 on the first floor in 2013 when the prior tenant there moved out. She stores her belongings in the building's basement and testified that in February 2019 Petitioner changed the basement door lock and did not give her a copy of the key. When she discovered this, she had the lock changed again and did not give Petitioner a copy of the new key.
Respondent acknowledged the foreclosure proceeding Wells Fargo had brought against her and testified that prior to the commencement of that case she had filed an action against the bank for breach of contract and rescinded the mortgage because the bank was "in default"; when asked what she meant by that Respondent explained that the bank failed to respond to her correspondence. Respondent acknowledged receiving the holdover Notice of Petition and Petition and predicate Ten-Day Notice to Quit.
Respondent challenged Mr. Schwartz's recitation of the chronology of Petitioner's purchase of the building and offered into evidence a 2-page "Real Property Transfer Report" ("RPTP", form # RP — 5217NYC) reflecting a "Sale Contract Date" of January 8, 2017, a year before what Mr. Schwartz had testified to. Respondent argued that this form established that Petitioner had back-dated the sale and that such action invalidated Petitioner's claim that it purchased the property at the foreclosure auction in 2018. The court took judicial notice that the RPTP (Respondent's Exhibit A) was publicly recorded along with Petitioner's Referee's Deed (Petitioner's Exhibit 1) and both documents are available as one 8-page document on "ACRIS", the website for the New York City Department of Finance City Register's Automated City Register Information System which "supports the Office of the City Register in recording and maintaining official documents." See http://a836-acris.nyc.gov/CP/CoverPage/AboutACRIS; La Sonde v. Seabrook, supra .
Respondent also argued that Petitioner was not in compliance with laws that she believes require it to register its Brooklyn address - listed in the petition and on the multiple dwelling registration statement filed with HPD - instead of the Monsey address with the NYS-DOS and that, accordingly, the proceeding should be dismissed.
On cross-examination Respondent acknowledged that in her Supreme Court action she had raised the issues of the RPTP "Sale Contract Date" and the accuracy of Petitioner's business address reported to the NYS-DOS but denied that the judge in that case "didn't think they were important". A certified copy of Justice Miles' Decision and Order of December 24, 2019 under Bronx County Supreme Court Index # 260410/2019 was admitted into evidence.
Mr. Schwartz re-took the witness stand on rebuttal. When shown the 8-page document on file with ACRIS, including the Referee's Deed and the accompanying RPTR, and asked if he knew who prepared that form for submission, Mr. Schwartz read from the document "Better Research LLC" and testified that he does not know that entity and does not know who prepared that form. Regarding the "Sale Contract Date" on that form of January 8, 2017, Mr. Schwartz testified that it must be a "typo" as to the year, as the auction was in 2018 and then it took another year before the closing in 2019.
DISCUSSION
This eviction proceeding falls under Sections 713(5) and 721(1) of the New York State Real Property Actions and Proceedings Law (RPAPL), which permit an owner who purchased a property at a foreclosure sale to bring an eviction proceeding against occupants after service of a ten-day notice to quit. Petitioner produced a certified copy of its Referee's Deed under which it became the owner of 597 Prospect Avenue and thereby entitled to commence this proceeding. Respondent acknowledged receipt of the Notice of Petition, Petition and predicate ten-day notice to quit and the court took judicial notice of those documents in the court file. See Walker v. City of New York (46 AD3d 278, 282, 847 NYS2d 173, 176-177 [1st Dep't 2007] )("a court may take judicial notice of its records and files").
Respondent presented no proof of any procedural or substantive defense warranting dismissal of the proceeding. Regarding the "Sale Contract Date" of January 8, 2017 on the RPTR on file with ACRIS, without more — that is, without a copy of the actual contract or other proof — and based on the other evidence, what is apparent is that the form erroneously states the date of the contract of sale. The judgment of foreclosure was entered on October 31, 2017, and the subsequent auction and execution of a contract of sale could not have taken place until after that date. Mr. Schwartz testified credibly that to the best of his recollection the auction took place in January or February of 2018, which is consistent with the theory that "2017" is a typographical error and the contract date had to have been in the year "2018". While this error might be something that Petitioner could choose to seek to have corrected, see, e.g., Akasa Holdings, LLC v. 214 Lafayette House, LLC (59 Misc 3d 676, 71 NYS3d 857 [Sup Ct NY Co 2018], aff'd, 177 AD3d 103, 109 NYS3d 17 [1st Dep't 2019] ); Bernard v. Joy (123 Misc 2d 401, 473 NYS2d 718 [Sup Ct NY Co 1984] ), it does not warrant dismissal of this proceeding.
This court lacks jurisdiction to determine the propriety of the foreclosure action, judgment and sale, see, e.g., Kroll v. James (2013 NY Misc LEXIS 3620, 2013 NY Slip Op 31905[U] [Civ Ct NY Co 2013] ); and compare Majada Inc v. Doe (49 Misc 3d 1202[A], 28 NYS3d 649 [Civ Ct Qns Co 2015] ) and cases cited therein, which Respondent in any event already raised in an action she filed in the Supreme Court. If Respondent believes that last month's Decision and Order of Supreme Court Justice Miles dismissing that action is wrong, her remedy is an appeal.
Respondent's argument that the case should be dismissed because Petitioner's address as stated in the petition and multiple dwelling registration statement filed with HPD is different from its address listed on the NYS-DOS's website, is also misplaced. In New York, State and local laws require owners of multiple dwellings to file notice of certain information with the relevant local agency, which in New York City is HPD. Under New York State's Multiple Dwelling Law § 325 (1), owners of multiple dwellings are required to file a notice with the local agency which includes the owner's and managing agent's names and addresses and, where the owner is a corporation, the names and residence addresses of its officers. The New York City Housing Maintenance Code requires multiple dwelling owners to file an annual registration statement, NYC Admin Code § 27-2097(c), which provides various information to HPD including the name and address of a managing agent within the City responsible for maintenance and operation of the building and correction of emergency conditions, NYC Admin Code § 27-2098(3), and the identity of a corporate owner by "name and address of such corporation together with the names, residences and business addresses of the officers", NYC Admin Code § 27-2098(2). Further, the Uniform Civil Rules for the New York City Civil Court require that every petition filed under RPAPL Article 7 include a statement of the registered managing agent's name, and either the residence or business address of said managing agent. 22 NYCRR § 208.42(g).
The purpose of the above-described multiple dwelling registration statutes is to "enable tenants and governmental authorities to readily contact owners or persons responsible for the operation of multiple dwellings". 390 W End Assocs v. Raiff (166 Misc 2d 730, 722, 636 NYS2d 965, 966 [App Term 1st Dep't 1995] ) quoting Whitehall Apts Co v. Zeigler (NYLJ, Jan 26, 1993, at 22, col 1 [App Term 1st Dept' 1993] ). "What is sought in the legislative context of maintaining habitable residential housing within the City of New York is an authorized, responsible representative of the owner, present in the city and subject to the immediate jurisdiction of the regulatory agencies and the courts." Amsterdam v. Goldstick (136 Misc 2d 946, 947, 521 NYS2d 203, 204 [App Term 1st Dep't 1987] ).
A business entity which, like Petitioner, was formed as an "LLC" (limited liability company), also must biannually provide an address to the NYS-DOS. NY CLS LLC Law § 301(e). This State filing serves a very different purpose from the local multiple dwelling registration requirements. In New York, the NYS-DOS is statutorily designated as every LLC's agent for service of process. NY CLS LLC Law § 301(a). This ensures that any person or corporation suing an LLC has a place to serve process. The address which LLCs must provide to the NYS-DOS is solely for acceptance of service of process from the Secretary of State. There is no requirement that such address be in a particular location, and no prohibition on an LLC having more than one address in the State. As is evident from the information on the NYS-DOS website, Petitioner has provided an address for acceptance of service of process in Monsey, New York. There is no requirement that Petitioner instead provide the NYS-DOS with another address it has and uses for other purposes in Brooklyn, New York.
CONCLUSION
Based on the credible relevant evidence at trial, Petitioner is entitled to a judgment of possession against Respondent Mary Sylvester-Nored with issuance of the warrant of eviction forthwith. All monetary claims to date other than use and occupancy for January 2020, discussed below, are dismissed without prejudice. Petitioner may seek a default judgment against the non-appearing Respondents upon submission of the requisite affidavits of non-military status.
To provide Respondents time to find alternative housing, execution of the warrant of eviction shall be stayed through April 30, 2020, conditioned upon Respondents' payment to Petitioner of a monthly "use and occupancy" ("U & O") fee of $1000 by the 31st day of January 2020 for the month of January and by the 15th day of each of the following three months of February, March and April 2020. The warrant of eviction shall issue forthwith, execution stayed through April 30, 2020 on the condition that Respondent make the aforementioned U & O payments to Petitioner in and for each of the four months of January, February, March and April 2020. The documents submitted into evidence as trial exhibits may be picked up from the Part S/T Clerk (in either Room 409 or 410 at 851 Grand Concourse) within thirty days or they may be disposed of in accordance with Administrative Directives. This constitutes the Decision and Order of this Court, copies of which will be mailed to Petitioner's attorney and to Respondents at the premises.