Opinion
Index No. L&T 311607/22
01-18-2024
LPP Mortgage Inc. f/k/a LPP MORTGAGELTD., Petitioner, v. Oscar Cruz, JANE SMITH (NAME REFUSED), JOHN DOE, JANE DOE, Respondents. LPP MORTGAGE INC. f/k/a LPP MORTGAGE LTD., Petitioner, v. ANDY A. CRUZ, DANNY J. CRUZ, JOHN SMITH (NAME REFUSED), JOHN DOE, JANE DOE, Respondents.
Stein, Wiener and Roth, L.L.P. Westbury, NY Attorneys for petitioner Oscar Cruz, pro se Andy Cruz, pro se Respondents
Unpublished Opinion
Stein, Wiener and Roth, L.L.P. Westbury, NY Attorneys for petitioner
Oscar Cruz, pro se Andy Cruz, pro se Respondents
CLINTON J. GUTHRIE, J.
PROCEDURAL HISTORY
These post-foreclosure proceedings brought pursuant to RPAPL § 713(5) were filed in August 2022. The cases involve the Basement (Index No. L&T 311607/22) and Second Floor (Index No. L&T 313048/22) at 156-15 76 Street, Howard Beach, New York 11414. Oscar Cruz appeared as respondent on Index No. L&T 311607/22 and Andy Cruz appeared as respondent on Index No. L&T 313048/22. Both respondents filed answers, which included general denials and challenges to service of the notice to quit. The cases were scheduled for joint traverse hearings and trial on January 12, 2024. After the traverse hearing, the court overruled the traverse claims on both cases and permitted the cases to proceed to trial. The trial was also held and completed on January 12, 2024. The court reserved decision upon the conclusion of the trial.
JOINT TRIAL
Petitioner's sole witness at trial was R.J. Santiago. The court first admitted the attorney- certified deed for the subject building. Mr. Santiago testified that he is employed by Buy Rite Home Sales. He testified that petitioner hired his company to manage the subject building. He stated that his responsibilities included inspection of the property once a week, maintaining the water bill, and related activities. He testified that the subject building is a "legal two family."
Mr. Santiago testified that he was not aware that anyone was elderly or disabled in the subject building. He also denied that any respondent had a rental agreement or a pending ERAP (Emergency Rental Assistance Program) application pending. Finally, he testified that petitioner LPP Mortgage Inc. is the owner of the subject building pursuant to a deed. Respondents did not cross-examine Mr. Santiago.
Andy Cruz testified. He briefly testified about the history of the case and his efforts to find an attorney. After Mr. Cruz's testimony, the trial concluded.
DISCUSSION & CONCLUSION
Upon due consideration of the trial testimony, evidence, and pleadings, the court finds that petitioner failed to sustain its prima facie burden in both proceedings. Both proceedings were brought pursuant to RPAPL § 713(5), which permits a summary proceeding to be brought where "the 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." In addition, a 10-day notice to quit must be served in accordance with RPAPL § 735 (see Plotch v. Dellis, 60 Misc.3d 1, 4-5 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Petitioner met its burden at the traverse hearing of serving the notices to quit as required by RPAPL § 735.
However, the notices to quit are issued by an entity that is not a party to the case, Radian Real Estate Management, purporting to be attorney in fact for petitioner. Petitioner's witness wholly failed to authenticate either notice to quit. While it is not required that a predicate notice be issued by the owner (see Matter of QPII-143-45 Sanford Ave. LLC v. Spinner, 108 A.D.3d 558, 559-560 [2d Dept 2013]), petitioner nonetheless bears the burden of authenticating its predicate notices at trial where, as here, respondents have interposed general denials (see Matter of Metro Plaza Apts. v. Buchanan, 204 A.D.3d 45, 48 [3d Dept 2022]). The notices to quit are not pleadings but are instead required conditions precedent that do not speak for themselves (see Mautner-Glick Corp. v. Glazer, 148 A.D.3d 515, 515-516 [1st Dept 2017] ["[C]ompliance with a statutory notice requirement represents a condition precedent to maintenance of a summary eviction proceeding, and the 'burden remains with the landlord to prove that element of its case.'" [quoting W54-7 LLC v. Schick, 15 Misc.3d 49, 50 [App Term, 1st Dept 2006]]; see also 146 Flushing Ave. v. 66s Fusion, 72 Misc.3d 128 [A], 2021 NY Slip Op 50595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Nor are they the types of documents that are "'so patently trustworthy as to be self-authenticating.'" Secretary of Dept. of Hous. & Urban Dev. v. Torres, 2 Misc.3d 53, 55 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [quoting People v. Kennedy, 68 N.Y.2d 569, 577 n 4 [1986]]. Thus, foundational testimony to authenticate the notices was required (see Torres, 2 Misc.3d at 55). In the absence of any such testimony (i.e. about the preparation of the notice, the signatory, and the signatory's relationship to petitioner), petitioner has failed to sustain its prima facie case in both proceedings.
Insofar as each of the elements of petitioner's cause of action must be made out in a summary proceeding brought pursuant to Article 7 of the RPAPL for relief to be granted (see 1646 Union, LLC v. Simpson, 62 Misc.3d 142 [A], 2019 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the petitions in both proceedings must be dismissed after trial. It is hereby adjudged that the petitions in Index No. L&T 311607/22 and Index No. L&T 313048/22 are dismissed (see CPLR § 411).
This Decision/Order will be filed to NYSCEF and copies will be emailed and mailed to respondents.
The parties are directed to pick up their exhibits within 35 days or they will be sent to the parties or destroyed at the court's discretion in accordance with DRP-185.