Opinion
51048/15
09-04-2015
Majada Inc., Petitioner, v. Jane Doe and JOHN DOE, Respondents.
Juan Paolo F. Dizon, Esq. Biolsi Law Group, P.C. 42 Broadway, 12th Floor New York, NY 10004 Attorneys for Petitioner Md. Shohid H. Patoary 163-08 72nd Avenue, 1st Floor Fresh Meadows, NY 11372
Juan Paolo F. Dizon, Esq.
Biolsi Law Group, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Attorneys for Petitioner
Md. Shohid H. Patoary
163-08 72nd Avenue, 1st Floor
Fresh Meadows, NY 11372
Gilbert Badillo, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion for an order dismissing the petition or, in the alternative, staying this proceeding and providing certain other relief: PAPERS NUMBERED Respondent's Order to Show Cause, Affidavit, and Exhibits1 Petitioner's Affirmation in Opposition and Exhibits2 Respondent's Reply Affidavit and Exhibits 3
Gilbert Badillo, J.
Background
Petitioner Majada Inc. commenced this "no grounds" holdover proceeding against respondents Jane Doe and John Doe in January 2015. The petition alleges, among other things, that Majada Inc. is the landlord and owner of the subject premises (the "house") pursuant to a deed dated October 21, 2014 from Dilip Das, which was signed on his behalf by Shahidul Islam, as his agent; that the house is a "One Family Dwelling Unit" and not Rent Stabilized; that Jane Doe and John Doe ("Respondents") are the tenants thereof and rented the house from petitioner or its predecessor-in-interest on a monthly basis; that Jane Doe and John Doe are their undertenants; and that the term for which the house was rented to Respondents expired on December 31, 2014 pursuant to service of a "30 Day Notice Terminating Monthly Tenancy" dated November 7, 2014. Annexed to the petition is a copy of the October 2014 deed.
Shortly before this case began, Md. Shohid Patoary commenced an action is Supreme Court against Dilip Das, Majada Inc., Shahidul Islam, and others seeking, among other things, judgment voiding petitioner's deed on the ground that the conveyance was fraudulent. That case is still pending.
By order to show cause dated May 15, 2015, Mr. Patoary moves for an order dismissing the petition or, in the alternative, staying this proceeding pending the determination of the Supreme Court action and providing certain other relief. In support of his motion, Mr. Patoary alleges that he is the John Doe mentioned in the petition; that on or about March 1, 2010, he entered into a lease agreement with Dilip Das, who owned the house at that time; that the lease was for a term of 10 years and one month, commencing March 1, 2010 and ending March 30, 2020; that the lease contains an option to renew for a similar period, as well as an option to purchase; that pursuant to the lease, he paid Mr. Das a $30,000 security deposit and a $15,000 option deposit; and that he has invested approximately $66,150 in the house for improvements. He further alleges that petitioner's deed is not valid because it was signed not by Dilip Das but by Mr. Das's alleged agent, Shahidul Islam, pursuant to a purported power of attorney from Mr. Das dated October 20, 2014; and that in an affidavit dated May 5, 2015 submitted by Savita Rani Das in his Supreme Court action, she claims that she is Mr. Das's wife and that Mr. Das died in Bangladesh on December 12, 2013. Her affidavit is supported with a copy of what she claims to be her marriage certificate and Mr. Das's death certificate. Finally, Mr. Patoary claims that petitioner's deed is defective because, while it purports to have been signed by Shahidul Islam as Mr. Das's agent, the acknowledgment signed by a notary public states that it was executed by Dilip Das, and that the power of attorney did not authorize Mr. Islam to do anything because Mr. Das did not initial any of the authorities listed in the "Grant of Authority" section thereof, as required by the power of attorney form. Mr. Patoary's affidavit is supported by a number of exhibits, including copies of the power of attorney, Dilip Das's death certificate, petitioner's deed, his lease from Dilip Das, receipts for his security deposit and option deposit, and invoices for repairs and improvements.
In opposition, petitioner argues that even if Mr. Patoary's lease were otherwise valid, it is not effective against it because it was not recorded and because at the time it purchased the house it had no knowledge of his tenancy or that the house was occupied by anyone; and that the first time that any of its agents met "the Respondents" was November 28, 2014 (more than a month after it acquired title). With respect to Mr. Patoary's claim that the conveyance of title to the house was fraudulent, petitioner argues that the copies of Dilbert Das's purported marriage certificate and death certificate should not be considered by the Court because they do not comply with the requirements for admissibility set forth in Section 4542 of the CPLR; that Mr. Patoary's allegations of fraud lack the specificity required by Section 3016(b) of the CPLR; and that even if Mr. Patoary's fraud allegations were sufficiently pled and supported by admissible evidence, its title is superior to his claimed interest under his unrecorded lease because it is an innocent bona fide purchaser for value. Finally, petitioner argues that this case should not be stayed pending the outcome of Mr. Patoary's Supreme Court action because it was not properly served with copies of the summons and complaint in that case and because a summary proceeding generally should not be stayed unless it appears that there are clear equitable grounds entitling the tenant to retain possession, which grounds cannot effectively be interposed as a defense in the summary proceeding. Although petitioner states that "while the issues raised by the Respondents [ sic] seem to fall out of the ambit of this Court's jurisdiction," it argues that "the issues raised together with the evidence presented clearly do not constitute grounds for the Respondent's retention of possession of the subject premises." Petitioner's opposition papers are supported with a number of exhibits, including copies of its deed, Mr. Das's purported power of attorney, and affidavits of its Senior Corporate Manager and the Executive Assistant to its President that were submitted in another Housing Court proceeding.
Discussion
Although Mr. Patoary was initially represented by counsel, he discharged his attorney and was unrepresented at the time he filed his order to show cause. While he does not expressly state the section of the CPLR on which he bases his motion to dismiss, the Court finds that it is made pursuant to Section 3211(a)(3) for lack of standing and Section 3211(a)(1) as a defense founded upon documentary evidence.
A motion to dismiss on the ground that a cause of action is barred by documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002], citing Leon v. Martinez, 84 NY2d 83, 88 [1994]). The Court finds that Mr. Patoary has met his burden of proof with respect to his claim that petitioner lacks standing.
The persons who may maintain a summary proceeding to recover possession of real property are set forth in Section 721 of the RPAPL. If, as it alleges in its petition, petitioner is the "landlord/owner" of the house, it would have standing to maintain this proceeding under Section 721(1) of that statute. If, however, it did not acquire good title to the house, it would lack standing to maintain this proceeding.
A deed conveying an estate or interest in real property must be subscribed by the grantor "or by his lawful agent, thereunto authorized by writing." (General Obligations Law § 5-703[1]; see Real Property Law § 243). Petitioner claims that it acquired title to the house pursuant to a deed dated October 21, 2014 from Dilbert Das. That deed was signed "Dilip Das by Shahidul Islam, his agent." Petitioner does not dispute Mr. Patoary's claim that the purported basis for Mr. Islam's authority to sign the deed as Mr. Das's agent was a power of attorney that Mr. Das allegedly signed on October 20, 2014. Indeed, petitioner annexed a copy of the power of attorney to its opposition papers in support of its claim that its duly recorded deed evidenced its ownership of the house.
If, as Mr. Patoary claims, Dilip Das died in December 2013, his purported signature on the power of attorney was forged, rendering both it and the deed void. (See ABN AMRO Mtge. Group, Inc. v. Stephens, 91 AD3d 801, 803 [2d Dept 2012]). The Court agrees with petitioner, however, that it may not consider the copies of the marriage certificate and death certificate submitted by Mr. Patoary because they are foreign records and fail to meet the requirements for admissibility set forth in Section 4542 of the CPLR. Nevertheless, assuming, without deciding, that Mr. Das's signature on the power of attorney is genuine, that document failed to grant Mr. Islam the authority to sell the house because Mr. Das did not initial any of the brackets set forth in the"Grant of Authority" section thereof.
Section (f) of the "Power of Attorney New York Statutory Short Form" submitted by both Mr. Patoary and petitioner reads as follows:
To grant your agent some or all of the authority below, either
(1) Initial the bracket at each authority you grant, or
(2) Write or type the letters for each authority you grant on the blank line at (P), and initial the bracket at (P). If you initial (P), you do not need to initial the other lines.
(See General Obligations Law § 5-1513[1][f]). While an "X" was inserted in the brackets for real estate transactions and several other types of transactions as well, Mr. Das's initials were not inserted anywhere. "Although an X' or another such mark may be sufficient where a principal routinely signs his or her name with such a mark" (Matter of Marriott, 86 AD3d 943, 945 [4th Dept 2011]), that is not the case here, where Mr. Das purportedly signed his full name in the "Signature and Acknowledgment" section of the form. Given Mr. Das's failure to insert his initials anywhere in the "Grant of Authority" section, including in the bracket next to "real estate transactions," and inserting an "X" is an insufficient substitute, the power of attorney did not grant Mr. Islam the authority to sign a deed transferring title to the house to petitioner. (See Matter of Marriott, supra, 86 AD3d at 945; cf. Jacobs v. Mazzei, 112 AD3d 1115, 1116-1117 [3d Dept 2013][plaintiff held without authority to make requested changes in decedent's accounts because decedent failed to execute statutory gifts rider or initial pertinent section of power of attorney]; JPMorgan Chase Bank, N.A. v. Nola, 2015 NY Slip Op 31373[U][Sup Ct, Suffolk County 2015][power of attorney purportedly authorizing son to execute note to mortgagee held fatally defective because designated spaces for authorization were marked with "X" and not initialed]; Matter of White, 11 Misc 3d 1054[A], 2006 NY Slip Op 50210[U][Sur Ct, Broome County 2006][power of attorney held not valid since none of the boxes A through Q on the form was initialed]). Consequently, the purported conveyance of title to the house pursuant to the power of attorney is void. (See Matter of Marriott, supra, 86 AD3d at 945).
While a lower court, such as the Housing Court, does not have jurisdiction to adjudicate an affirmative claim for title in a summary proceeding, it does have jurisdiction to entertain a party's defense that it owns the subject property or that the petitioner does not. (See Nissequogue Boat Club v. State of New York, 14 AD3d 542 [2d Dept 2005], citing RPAPL § 743 ["any legal or equitable defense, or counterclaim" may be raised in a summary proceeding]). Thus, for example, a party may raise as a defense that it has title by virtue of adverse possession (see City of New York v. Akbar's Self Help, Inc., 25 Misc 3d 129[A], 2009 NY Slip Op 52112[U][App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2009]; that he continues to be the owner because the deed purporting to transfer title from him was forged ( see Chopra v. Prusik, 9 Misc 3d 42 [App Term, 2d Dept, 2d and 11th Jud Dists 2005] ); or that because title was placed in the petitioner's name only because his own credit was bad, he (the respondent) had constructive ownership ( see Freire v. Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U][App Term, 2d Dept, 2d, 11th, and 13th Jud Dists 2010] ).
Having found that petitioner does not have good title to the house, the Court holds that it lacks standing to maintain this proceeding. Accordingly, the Court grants Mr. Patoary's motion to the extent of dismissing the petition.
Although the Court finds that petitioner's deed is void, it lacks the subject matter jurisdiction to render judgment to that effect. Mr. Patoary may seek such relief in his Supreme Court action.
This constitutes the decision and order of the Court.
Because the Court is dismissing the petition based on its finding that petitioner lacks standing to maintain this proceeding, it need not, and does not, address Mr. Patoary's alternative claim that his long-term lease bars petitioner from maintaining a "no grounds" holdover proceeding against him at this time or petitioner's argument that the unrecorded lease is void as to it because it is a good faith, bona fide purchaser for value.
Dated:September 4, 2015
Jamaica, New York
________________________________________
HON. GILBERT BADILLO
HOUSING COURT JUDGE