Opinion
LT 14948/10.
Decided April 1, 2011.
BALSAMO ROSENBLATT COHEN, PC, Attorneys for Petitioner, Brooklyn, New York.
ROXANNE ELLIS, Respondent Pro Se, Bronx, NY.
On March 7, 2011, the Court issued a decision from the bench on Respondent's post-eviction. That decision is sua sponte recalled and rescinded by the Court, and replaced with this decision and order.
BACKGROUND
This summary nonpayment proceeding was commenced by DAVIDSON AVENUE SIP HDFC (Petitioner) seeking to recover possession of Apartment 5G at 1789 DAVIDSON AVENUE, BRONX, NEW YORK 10453 (Subject Premises) based on allegations that ROXANNE ELLIS, the rent-stabilized tenant of record for the Subject Premises had failed to pay rent due.
The petition in this proceeding is dated March 8, 2010, and is verified by Petitioner's counsel. The petition alleges that rent was personally demanded from the Respondent, and that Respondent owed $11,598.00 in arrears through January 2010.
Respondent did not file an answer to the petition, and on or about July 2010, Petitioner applied for and received a default judgment against Respondent. The warrant of eviction issued on August 4, 2010.
Steven Goldenberg, an agent for Petitioner, submitted an affidavit of investigation and an affidavit of merits in support of the default application.
Mr. Goldenberg executed a sworn statement which asserted that on July 7, 2010 ". . . I called at premise no. 1789 Davidson Avenue, Bronx, New York, 10453, Apt. 5G and had a conversation with Roxanne Ellis. I asked the person spoken to whether said tenant or anybody else residing in said premises was in the military service of the United States or the State of New York in any capacity. The person informed me that said tenant was not in the military service, nor was the Respondent or the Tenant or anyone in said Respondent's or Tenant's family dependant on any person in the military service of the United States or any nation allied with the United States."
Directly below Mr. Goldenberg's notorized signature and above the accompanying affirmation of Petitioner's counsel, the documents further provide:
IMPORTANT NOTE: providing false information in an affidavit of military status is a violation of federal and state penal laws which can result in criminal prosecution, as well as civil liabilities.
Mr. Goldenberg also submitted an affidavit of merits sworn to July 13, 2010 attesting that he had personal knowledge of the allegations contained in the petition, which included the allegation that the rent had been personally demanded from Respondent, prior to the commencement of the underlying proceeding.
On August 17, 2010, Respondent moved by Order to Show Cause to vacate her default. Respondent asserted that she had only received notice of the proceeding when she got a Marshall's notice. Respondent at the time of the ex parte application, asserted that the rent had never been personally demanded from her prior to the commencement of the proceeding, and that Mr. Goldenberg had not been to the Subject Premises as asserted to asked her about her military status.
Respondent's motion was initially returnable on August 31, 2010. It was adjourned to September 23, 2010. Respondent tendered $800 in Court without prejudice, and Petitioner was directed to serve and file written opposition papers, on the issue of the personal rent demand and the veracity of the non-military affidavit. Petitioner failed to submit written opposition by September 23, 2010, and the proceeding was adjourned to October 19, 2010 for the submission of the opposition papers pursuant to the Court's prior order. The Court issued a written order providing that if opposition was not submitted by October 19, 2010, the proceeding was subject to dismissal.
On October 19, 2010, Petitioner did not submit the opposition papers as directed by the Court. However, Respondent stated that she wished to waive the requirement that they do so, and enter into a stipulation allowing Petitioner to keep the judgment and warrant and staying execution of the warrant for the payment of arrears.
The Court so ordered a stipulation between the parties, wherein Respondent agreed she owed $4350.00 through October 2010, and staying execution of the warrant through November 19, 2010 for payment. Based on the parties stipulation, the Court never made a determination on the merits as to the validity of the warrant, or the veracity of the affidavits submitted by Mr. Goldenberg.
On November 19, 2010, Respondent returned to Court and moved for a stay of the eviction proceeding, stating that she had applied for emergency assistance. The motion was returnable on December 3, 2010, and the parties entered into a further stipulation agreeing that $5954.00 was due through December and that execution of the warrant would be stayed through December 17, 2010 for payment of same.
On January 5, 2011, the parties were again before the Court on Respondent's motion for a stay, entered into a third stipulation agreeing that there was $6856.00 due in arrears, and staying execution of the warrant for payment of same.
Davidson Avenue SIP HDFC v. Castro, Index No. 63421/09
On January 21, 2011 the Court issued a decision in Davidson Avenue SIP HDFC v. Castro, under index No. 63421/09. The decision was based on affidavits submitted by Mr. Goldenberg where he acknowledged that all prior non-military affidavits he had sworn to were false.
Mr. Goldenberg stated that he really didn't read the affidavits of investigation that he signed, that he only filled in some blanks. Mr. Goldenberg stated that he thought the affidavits were "no big deal" and that all that was required was that he ask around his office, as to whether the tenant was known to be in the military.
The following excerpts are taken from the affidavit in opposition submitted by Mr. Goldenberg:
My attorney gave me an Affidavit of Investigation with some blank spaces on it. Furthermore, my attorney advised me to inquire into the military status of the respondent so that I would be able to answer whether or not the Respondent is in the military or dependent upon anyone in the military.
I am not an attorney and was never given specific training on how to perform such an inquiry. Since I have been working here, I have on occasion, previously performed similar inquiries. Apparently from the first time I started doing such inquiries, I fell into a very bad habit.
Each time , what I have been accustomed(sic) to doing is to ask those people whom I work with what they know about the tenants. Although we are a not-for-profit housing company, we do have quite a few employees who have regular contact with the tenants. . . .
I had no idea that I had to personally be the one who speaks to the tenants.
I just though since we all work together then it wouldn't matter if I ask my coworkers . . .
It seemed to be an effective and efficient manner to find out whether or not the tenants were in the military or dependent upon someone who is. In fact I remember being told early in my employment (by whom I do not recall), that almost none of our tenants are in the military so these sorts of investigations were supposed to be quick and simple
. . . . . .
I never really understood the exact details of what I had signed. . .
Had I realized, had anyone ever explained to me the true meaning and tremendous gravity of the document involved, I most certainly would not have continued to act as I had.
(Above excerpts taken from July 14th, 2010 affidavit of Steve Goldenberg, emphasis added).
§ 521(b) of the Service members Civil Relief Act provides that in applicable any action or proceeding before entry of a default judgment the Plaintiff or Petitioner shall file an affidavit with the court stating whether the party sued is in the military and showing necessary facts to support the affidavit. § 521(c) provides that a person who makes or uses an affidavit knowing it to be false may be fined, imprisoned or both.
The affidavit filed must establish that the Respondent is not in the military service, that the affidavit was done after the default occurred, and that the investigation was done recently ( NYCHA v. Smithson 119 Misc 2d 721).
As, Mr. Goldenberg acknowledged that this was his standard procedure for each affidavit of investigation he executed, the Court concluded that all other affidavits filed by Mr. Goldenberg, on identical forms provided by Petitioner's counsel, are also false.
As this Court has previously noted, where a false affidavit of non-military status is filed in connection with a landlord-tenant proceeding, the proceeding is deemed to be in violation of law ( In re Holstein 43 AD2d 9 [2nd Dept, 1973]). The filing of a false affidavit is a criminal act ( In re Siegel 47 AD2d 461 [1st Dept., 1975]). The act may also constitute contempt of court ( Central Budget Corp. v. Knox 62 Misc 2d 66).
Petitioner's counsel was directed to provide the Court with a list within thirty days of receipt of the Castro decision, of the Index Numbers of any proceedings where Mr. Goldenberg submitted an affidavit of investigation in support of a default judgment. Additionally, Counsel was directed to make sure that there are no pending proceedings where warrants of eviction were issued based on Mr. Goldenberg's affidavit of investigation, and directed to take appropriate remedial action if any such cases existed (emphasis added).
Petitioner's counsel clearly failed to comply again with this Court's order. Petitioner's counsel took no action to vacate the improperly obtained warrant of eviction in this proceeding, and instead went forward and executed the warrant and evicted Respondent.
On March 7, 2011, the parties appeared before the Court on Respondent's post eviction order to show cause. As the execution of the warrant in this proceeding was a direct violation of the Court's January 21, 2011 decision and order in Davidson Avenue SIP HDFC v. Castro, Index No. 63421/09, the Court grants Respondent's motion. Respondent is restored to possession forthwith. The Court finds Respondent's eviction in this proceeding was unlawful and the proceeding is dismissed.
Respondent was ordered restored to possession by the Court's original March 7, 2011 handwritten decision.
The Court finds Petitioner's argument that the prior stipulations in this proceeding allowed Petitioner to execute on an improperly obtained warrant, and disregard the order issued in Castro is without merit and borders on frivolous.
This constitutes the decision and order of this Court.