Opinion
2013-06-18
Ved PARKASH, Petitioner, v. Rafael L. ALMONTE, and Maricela Navir, Respondent(s). Ved Parkash, Petitioner, Arnaldo Rodriguez, Respondent(s). Ved Parkash, Petitioner, Angel Noboa Tejeda, Respondent(s). Ved Parkash, Petitioner, Rosa M. Rivera, Respondent(s). Parkash 180 LLC, Petitioner, Joseph Marte, and Yokaira Marte, Respondent(s). Parkash 180 LLC, Petitioner, Mercedes E. Rolleri, Respondent(s). Parkash 1718 LLC, Petitioner, Daisy Berrido, Respondent(s). Parkash 1718 LLC, Petitioner, Rosana Suarez, Respondent(s). Parkash 2115 LLC, Petitioner, Martha Gonzalez, Respondent(s). Parkash 2165 LLC, Petitioner, Vanessa Maris Rodriguez, Respondent(s). Parkash 2165 LLC, Petitioner, Solange M. Guerrero, Respondent(s). Ved Parkash, Petitioner, Flor M. Ruiz, Respondent(s). Parkash 2625 LLC, Petitioner, Dariel Mejia, and Joel T. Vasquez, Respondent(s). Parkash 190 LLC, Petitioner, Rosalind Dawson–Saunders, Respondent(s). Ved Parkash, Petitioner, Frances Fulgencio, Respondent(s). Ved Parkash, Petitioner, Jose Diaz, and Dora M. Calderon, Respondent(s). Ved Parkash, Petitioner, Silva M. Petrus, Respondent(s). Parkash 197 LLC, Petitioner, Yessica De Ferri, Respondent(s). Ved Parkash, Petitioner, Jennifer Moscoso, and Crismely Y. Tavarez, Respondent(s). Ved Parkash, Petitioner, Barbara A. Rosa, and Miguel A. Rosa, Respondent(s). Parkash 3990 LLC, Petitioner, Jamison T. Bowman, Respondent(s). Parkash 4769 LLC, Petitioner, George R. Myers, Respondent(s). Parkash 4769 LLC, Petitioner, Jason R. Williams, Respondent(s). Parkash 242 LLC, Petitioner, Teofilo Ponce, Respondent(s). Parkash 242 LLC, Petitioner, Suzette S. Powell, Respondent(s). Ved Parkash, Petitioner, v. Arnaldo Rodriguez, Respondent(s).
Anurag Parkash, Esq., Jamaica. Amjad Farhat, c/o Anurag Parkash, Esq., Jamaica.
Anurag Parkash, Esq., Jamaica. Amjad Farhat, c/o Anurag Parkash, Esq., Jamaica.
Raphael L. Almonte and Maricela Navir, Bronx.
Arnaldo Rodriguez, Bronx.
Angel Noboa Tejeda, Bronx.
Rosa M. Rivera, Bronx.
Joseph Marte and Yokaira Marte, Bronx.
Mercedes E. Rolleri, Bronx.
Daisy Berrido, Bronx.
Rosana Suarez, Bronx.
Martha Gonzalez, Bronx.
Vanessea A. Maris Rodriguez, Bronx.
Solange M. Guerrero, Bronx.
Flor M. Ruiz, Bronx.
Dariel Mejia and Joel T. Vasquez, Bronx.
Rosalind Dawson–Saunders, Bronx.
Frances Fulgencio, Bronx.
Jose Diaz and Dora M. Calderon, Bronx.
Silva M. Petrus, Bronx.
Yessica De Ferri, Bronx.
Jennifer Moscoso and Crismely Y. Tavarez, Bronx.
Barbara A. Rosa and Miguel A. Rosa, Bronx.
Jamison T. Bowman, Bronx.
George R. Myers, Jason R. Williams, Bronx.
Teofilo Ponce, Bronx.
Suzette S. Powell, Bronx.
SUSAN AVERY, J.
Petitioners commenced the instant twenty-five (25) summary non payment proceedings seeking possession of residential premises located throughout Bronx County. Each proceeding is premised upon the allegation that each respondent failed to pay rent. Petitioners now separately move, in each of the above captioned cases, for the entry of a default judgment and the issuance of a warrant of eviction, based upon the allegations that at the time of submission of each application, each respondent failed to appear or answer the petition and each remained in rental arrears.
MILITARY INVESTIGATION PRIOR TO DEFAULT JUDGMENT
As relevant to the instant decision, in housing court summary non-payment proceedings Federal Law and New York State Law require that, prior to the court signing a default judgment, a petitioner must submit an affidavit, stating that each respondent is not in active military duty or dependent on anyone in active military duty. A petitioner must comply with both the Federal and State requirements.
London v. O'Connell, 20 Misc.2d 168, 192 N.Y.S.2d 594 (Mun.Ct.N.Y.County [1959] ).
.50 USC Appendix § 521, et seq.
“There is no question that [petitioner/landlord] must meet the requirements of both the Federal and State laws before it may evict [respondent/tenant]” Cornell Leasing Corp. v. Hemmingway, 147 Misc.2d 83, 553 N.Y.S.2d 285 (Civ. Ct. Kings County [1990] )citing to (5 West's Federal Practice Manual § 6291 [2d rev. ed.] ).
CONSOLIDATION
Each of the thirty-one (31) affidavits of military status submitted for each of the twenty-five (25) above captioned cases read identically, except as to names and times. Each is sworn to by the same individual, notarized by the same notary and sworn to on the same date. Each investigation as to each respondent's military status or dependency, is alleged to have been conducted personally, with twenty-five (25) different named respondents, all on May 3, 2013, and all within a three (3) hour and seven (7) minute time span. Each affidavit concludes that each respondent is not in active military service or dependent on anyone in active military duty. As a result, this court is given pause, to make further inquiry as to the veracity of the allegations in the affidavits. Accordingly, this court consolidates these matters solely for purposes of the instant submissions, and issues the instant interim decision.
Six (6) proceedings have two (2) named respondents and petitioner submitted separate affidavits for each named respondent.
The court acknowledges Jon Helfman, Warrant Clerk, Bronx County Housing Court, for bringing this matter to the court's attention.
Applications for entry of default judgments and warrants of eviction in six (6) non payment proceedings consolidated for joint hearing to determine “whether [each] affidavit [of non military status] was false.” In all six (6) cases the same six (6) petitioner's were represented by the same attorney and the same process server claimed to have personally spoke to respondent and concluded that no respondent was in active military service or dependent on one in active military duty. The “affidavits in these proceedings were all a standard form lacking any detail of what actually occurred at the time of the alleged investigation.... no physical descriptions are included of the individuals allegedly spoken to, nor are any descriptions included of the locations actually visited” Riverbay Corp. v. Selden, 27 Misc.3d 1204(A), 2010 WL 1293798 (Civ. Ct. Bronx County [2010] ).
PURPOSE OF MILITARY INVESTIGATION
As relevant to the instant decision, the military laws provide for a restraint against eviction during the period of military service with respect to premises occupied by persons in active military service or their dependents in actions or proceedings affecting the right of possession. The purpose of both state and federal statutes restricting a landlord's right to evict individuals in active military duty, or their dependents is to protect individuals serving in the military from a default judgment being entered against them without their knowledge. The fundamental goal of each act is to protect the rights of service members and their dependents while service members actively serve their country, so that they may devote all of their energy to the defense of the nation without distraction.
.NY Mil. Law § 309(1); 50 USC Appendix § 521.
Benabi Realty Management Co., LLC v. Van Doorne, 190 Misc.2d 37, 738 N.Y.S.2d 166 (Civ. Ct. N.Y. County, Schachner, J., [2001] ).
Schachner & Weissman, Outside Counsel, Using Affidavits of Military Service in Housing Court Proceedings, N.Y.L.J., June 6, 2002, p. 4, col. 4.
In compliance with the foregoing, courts must be “meticulous with respect to the protection of the rights accorded individuals in active military service, and those persons dependent upon those actively engaged in such service” as “[m]ilitary personal who have been defending the country should not return home only to find that, in fact, they have no home.” Accordingly, the acts are to “be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.”
363 Assoc. v. Sharhan, 2 Misc.3d 928, 774 N.Y.S.2d 907 (Civ. Ct. N.Y. County [2003] ).
Schachner & Avery, Outside Counsel, Housing Court Part M, the Military and Their Dependents, N.Y.L.J. May 5, 2003 p. 4, col. 2; see also, 552–562 Academy St. Corp. v. Calderon, 38 Misc.2d 873, 238 N.Y.S.2d 853 (Civ. Ct. N.Y. County [1963] ).
Boone v. Lightner, 319 U.S. 561, 576, 63 S.Ct. 1223, 87 L.Ed. 1587 [1943].
Based upon the forgoing, an affidavit submitted by a petitioner stating that a respondent is not in active military duty or dependent on anyone in active military service, must demonstrate sufficient facts to support the claim. And upon a petitioner's failure to do so, a default judgment may not be entered.
.Am. Jur. 2d, Military and Civil Defense § 368.
AFFIDAVITS OF MILITARY STATUS SUBMITTED HEREIN
Cause for concern to this court, is that, in each of the thirty-one (31) affidavits of non-military status, submitted in support of each petitioners' application for the entry of a default judgment and issuance of a warrant of eviction, the affiant, Amjad Farhat, states that on May 3, 2013, at:
Contrary to precedent that “[an] affidavit should contain separate, numbered paragraphs for each factual allegation” GBI Acupuncture, PC v. Esurance Ins. Co., 38 Misc.3d 1208(A), 2012 WL 6808455 (Civ. Ct. Kings County [2012] )referencing, generally Phillips v. Girdich, 408 F.3d 124 (Ct. App. 2d Cir[2000] ) “[in order] to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers” GBI Acupuncture, PC v. Esurance Ins. Co., supra, the twenty-five (25) affidavits submitted in the matters currently before the court fail to contain numbered paragraphs. As a result of petitioner's failure to sequentially number each paragraph of any of the affidavits, this court is unable to direct the reader to any paragraph by specific paragraph number, when referring to specific language in the affidavits.
[1]“6:05 PM I went to the premises at 750 Grand Concourse, Apt. 1L, Bronx, N.Y. 10451 and had a conversation with Raphael L. Almonte ...”
[2]“6:05 PM I went to the premises at 750 Grand Concourse, Apt. 1L, Bronx, N.Y. 10451 and had a conversation with Raphael L. Almonte ... [as to Maricela Navir co-respondent] ...”
[3]“6:12 PM I went to the premises at 825 Gerard Avenue, Apt. 4H, Bronx, N.Y. 10451 and had a conversation with Arnaldo Rodriguez ...”
[4]“6:14 PM I went to the premises at 825 Gerard Avenue, Apt. 4K, Bronx, N.Y. 10451 and had a conversation with Angel Noboa Tejeda ...”
[5]“6:16 PM I went to the premises at 825 Gerard Avenue, Apt. 2J, Bronx, N.Y. 10451 and had a conversation with Rosa M. Rivera...”
[6]“6:31 PM I went to the premises at 180 East 163 St, Apt. 6A, Bronx, N.Y. 10451 and had a conversation with Joseph Marte...”
[7]“6:31 PM I went to the premises at 180 East 163 St, Apt. 6A, Bronx, N.Y. 10451 and had a conversation with Joseph Marte... [as to Yokaira Marte co-respondent] ....”
[8]“6:33 PM I went to the premises at 180 East 163 St, Apt. 6H, Bronx, N.Y. 10451 and had a conversation with Mercedes E. Rolleri...”
[9]“6:41 PM I went to the premises at 1718 Grand Ave, Apt. 6B, Bronx, N.Y. 10453 and had a conversation with Daisy Berrido...”
[10]“6:43 PM I went to the premises at 1718 Grand Ave, Apt. 6J, Bronx, N.Y. 10453 and had a conversation with Rosana Suarez...”
[11]“7:00 PM I went to the premises at 2115 Ryer Ave, Apt. A45, Bronx, N.Y. 10457 and had a conversation with Martha Gonzalez...”
[12]“7:07 PM I went to the premises at 2165 Ryer Ave, Apt. 1C, Bronx, N.Y. 10457 and had a conversation with Vanessea A. Maris Rodriguez...”
[13]“7:11 PM I went to the premises at 2165 Ryer Ave, Apt. 6H, Bronx, N.Y. 10457 and had a conversation with Solange M. Guerrero...”
[14]“7:20 PM I went to the premises at 2260 University Ave., Apt. 5C, Bronx, N.Y. 10468 and had a conversation with Flor M. Ruiz...”
[15]“7:38 PM I went to the premises at 2625 Grand Concourse, Apt. 6D, Bronx, N.Y. 10468 and had a conversation with Dariel Mejia....”
[16]“7:38 PM I went to the premises at 2625 Grand Concourse, Apt. 6D, Bronx, N.Y. 10468 and had a conversation with Dariel Mejia....[as to Joel T. Vasquez co-respondent]...”
[17]“7:48 PM I went to the premises at 58 East 190 Street, Apt. 5A Bronx, N.Y. 10468 and had a conversation with Rosalind Dawson–Saunders...”
[18]“7:55 PM I went to the premises at 50 East 191 Street, Apt. 5H, Bronx, N.Y. 10468 and had a conversation with Frances Fulgencio...”
[19]“7:57 PM I went to the premises at 50 East 191 St, Apt. 3H, Bronx, N.Y. 10468 and had a conversation with Jose Diaz...”
[20]“7:57 PM I went to the premises at 50 East 191 St., Apt. 3H, Bronx, N.Y. 10468 and had a conversation with Jose Diaz... [as to Dora M. Calderon co-respondent] ...”
[21]“8:02 PM I went to the premises at 50 East 191 Street, Apt. 5S, Bronx, N.Y. 10468 and had a conversation with Silva M. Petrus...”
See footnote 1 herein.
[22]“8:11 PM I went to the premises at 165 West 197 Street, Apt. 4L, Bronx, N.Y. 10468 and had a conversation with Yessica De Ferri...”
[23]“8:30 PM I went to the premises at 3525 Perry Ave, Apt. 7B, Bronx, N.Y. 10467 and had a conversation with Jennifer Moscoso...”
[24]“8:30 PM I went to the premises at 3525 Perry Ave., Apt. 7B, Bronx, N.Y. 10467 and had a conversation with Jennifer Moscoso...[as to Crismely Y. Tavarez co-respondent]...”
[25]“8:38 PM I went to the premises at 3764 Bronx Blvd., Apt. 5H, Bronx, N.Y. 10467 and had a conversation with Barbara A. Rosa...”
[26]“8:38 PM I went to the premises at 3764 Bronx Blvd., Apt. 5H, Bronx, N.Y. 10467 and had a conversation with Barbara A. Rosa...[as to Miguel A. Rosa co-respondent]...”
[27]“8:46 PM I went to the premises at 3990 Bronx Boulevard, Apt. 5F, Bronx, N.Y. 10466 and had a conversation with Jamison T. Bowman...”
[28]“8:56 PM I went to the premises at 4769 White Plains Road, Apt. 4J, Bronx, N.Y. 10470 and had a conversation with George R. Myers...”
[29]“8:58 PM I went to the premises at 4769 White Plains Road, Apt. 1E, Bronx, N.Y. 10470 and had a conversation with Jason R. Williams...”
[30]“9:05 PM I went to the premises at 707 East Street , Apt. 2H, Bronx, N.Y. 10470 and had a conversation with Teofilo Ponce ...”
The court notes that the address from which possession is sought, as stated in the petition is “707 East 242 Street” and not “707 East Street” as cited in the affidavit, accordingly, the affidavit, even if otherwise sufficient, cannot support the entry of a default judgment against the named respondent.
[31]“9:12 PM I went to the premises at 735 East 242 Street, Apt. 4A, Bronx, N.Y. 10470 and had a conversation with Suzette S. Powell...”
Each affidavit concludes as follows:
“Sworn to before me on
May 4, 2013______ /s/ Amjad Farhat ________
LicNo.1341911
Richmond NY
______ /s/ Cheryl Marsh ______
Notary Public”
Taking the affidavits at face value, each, separately appears to be facially sufficient. However, given the statements that the affiant visited twenty-five (25) different premises, made thirty-one (31) different inquires in eight (8) different zip codes at nineteen (19) different apartment buildings and had a personal conversation with twenty-five (25) different named respondents,over the course of three (3) hours and seven (7) minutes, this court is compelled to conduct further inquiry, as false statements of nonmilitary service of a tenant by a landlord violates the statutes.
A process server's inquiry of the person served, as to “whether [defendant] was presently in military service of the United States Government, or on active military duty in service of the State of New York ... [was sufficient]” Bergani v. Desena, 50 A.D.3d 716, 855 N.Y.S.2d 228 (2nd Dept. [2008] ).
.50 USC Appendix § 521(C): “A person who makes or uses a [non military] affidavit ... or a statement, declaration, verification, or certificate ... knowing it to be false, shall be fined ... or imprisoned ... or both”;
NY Mil. Law § 309(3): “Any person who shall knowingly take part in any eviction or distress otherwise than as provided in subdivision one of this section, or attempts so to do, shall be guilty of a misdemeanor, and shall be punishable by imprisonment ... or by fine ... or both.” See also, In re Holstein, 43 A.D.2d 9, 349 N.Y.S.2d 596 (1st Dept. [1973] ).
Accordingly, this court holds in abeyance, a determination on the instant submissions, pending the outcome of the below ordered hearing.
PRECEDENT
Precedent dictates that this court is required to make further inquiry as to the veracity of the statements made in the affidavits of military status. “[T]he fact that respondents were readily found personally for the purposes of the non-military affidavit, but could only be served with the petition by conspicuous service .... [caused] the Court ... to request additional documentation from Petitioner's counsel prior to issuing the [default] warrant.”
Morris Heights Restoration v. Torres, 25 Misc.3d 1233(A), 2009 WL 4263335 (Civ. Ct. N.Y. County [2009] ); see also, Riverbay Corp. v. Selden, supra.
Similarly, in the matters at bar, the affiant, Amjad Farhat, claims to have personally conversed with twenty-five (25) different respondents as to the military status of a total of thirty-one (31) different individuals. However, the process server that claims to have served each notice of petition and petition in the instant matters, Ahmad Farhat, claims to have served only three (3) of the thirty-one (31) named respondents, by personal service. Accordingly, given the fact that “respondents were readily found personally for the purposes of the non-military affidavit” but more than ninety percent (90%) were unable to be served personally with the notice of petition and petition, this court is compelled to make further inquiry, as to the veracity of the allegations in the affidavits of military status.
Morris Heights Restoration v. Torres, supra.
REQUIREMENTS OF LICENSED PROCESS SERVERS
Recent amendments to the New York City Administrative Code and the Rules of the City of New York currently require a licensed process server “to carry at all times during the commission of his or her licensed activities” a “device to establish electronically and record the time, date, and location of service of process ...”
The amendments were enacted following hearings held by a committee of the City Council, where “witnesses presented evidence of the widespread prevalence in New York City, of sewer service, an illegal practice in which process servers falsely claim to serve summonses and other process on parties to legal proceedings. The false service of legal papers is particularly common in consumer debt collection cases, where it deprives consumers of the opportunity to defend themselves against creditors claims that are frequently incorrect or even entirely false” NYC Dept of Consumer Affairs at: http:// www. nyc. gov/ html/ dca/ downloads/ pdf/ ps_ educational_ materials. pdf.
.New York City Administrative Code § 20–410.
Title 6 of the Rules of the City of New York § 2–233b.
Such an electronic device is more commonly known as a “Global Positioning System” or “GPS.”
The purpose of the new requirement is to deter process servers from filing affidavits which assert false claims and to make it easier for those reviewing such affidavits to detect such falsehoods.
“This technological tool [is] to [be used to] detect and deter sewer service” NYC Dept of Consumer Affairs at: http:// www. nyc. gov/ html/ dca/ downloads/pdf/ps_educational_materials.pdf.
In each affidavit of military status submitted in the twenty-five (25) pending matters, the line immediately below the affiant's (Amjad Farhat's) signature, reads: “Lic# 1341911” ( sic ). Accordingly, this court holds that where a licensed process server undertakes to conduct an investigation as to a party's military status, and supplies within the affidavit, his or her process servers' license number, he or she was acting in “the commission of his or her” “licensed activities,” when performing such investigation, and therefore the New York City Administrative Code and the Rules of the City of New York require that each investigation be memorialized with an electronic recording.
Indeed, Title 6 of the Rules of the City of New York § 2–231(2) reads as follows: “Process” shall mean a “summons, notice of petition, order to show cause, subpoena, notice, citation or other legal paper issued under the laws of the State of New York directing an appearance or response to a legal action, legal proceeding or administrative proceeding...” As an affidavit of military status is a “legal paper” and questions of military status require a “response” in order for “a legal action” to proceed, it is a form of process, and therefore the recently enacted amendments cited above, apply.
DETERMINATION/HEARING
SUFFICIENT, CAUSE APPEARING HEREON, it is:
ORDERED, that the instant twenty-five (25) matters will appear on the court calendar, on July 31, 2013, at 141 Livingston Street, Kings County, Part A, room 904, at 2:30 in the post-noon for a hearing to determine, inter alia, if, each allegation that Mr. Amjad Farhat, previously swore to, in each affidavit of respondents' military status, is true, pursuant to penalties of perjury; and it is further,
ORDERED, that Mr. Amjad Farhat, may appear at the hearing along with counsel of his choosing, and with documents to establish that, during the relevant time, he did in fact personally visit each apartment, and had personal conversations which each individual that he swears, under penalties of perjury, that he personally conversed with. Such documents shall include: the affiant's license (# 1341911), log book and GPS records, as applicable, pursuant to the New York City Department of Consumer Affairs, the Rules of the City of New York, and the directives of this interim decision and order.
Depending on the credibility this court determines the witness' testimony merits, or upon the witness' default, this matter may be referred to the Office of the District Attorney, the Office of the Attorney General and/or the Department of Consumer Affairs, for appropriate action; and it is further,
ORDERED, that if they have not yet done so, the named respondents in each action, if so inclined, may appear in the courthouse located at 1118 Grand Concourse, Bronx, New York and file any appropriate documents with the clerk of the court in avoidance of the entry of a default judgment; and it is further,
ORDERED, that each respondent, if so inclined, may appear in the courthouse located at 141 Livingston Street, Brooklyn, New York, to participate at the hearing on to be held on July 31, 2013, Part A, room 904 at 2:30 in the post-noon, and if any respondent so chooses, may present testimony, to corroborate or disavow the statements made in the military status affidavits, as alleged by affiant.
The foregoing constitutes the interim decision and order of the court.