Opinion
LT-001263-10.
Decided February 1, 2011.
Jonathan A. Stein, P.C., Attorneys for Respondents, Cedarhurst, New York.
Knuckles, Komosinksi Elliott, LLP., Attorneys for Petitioner, Elmsford, New York.
The respondents seek dismissal of the within petition based upon a photocopy of an attorney's signature for certification on a copy of a referee's deed, attached to the Notice to Quit, not complying with CPLR § 2105 in this case. Respondents cite to the case Security Pacific National Trust Company v. Cuevas, 176 Misc 2d 846, 675 NYS2d 500 [Civ Ct, Kings County 1998]. In the Security Pacific case, the court held that a facsimile of a signature cannot comport with the requirement of CPLR § 2105 and thus, is inapplicable under RPAPL § 713(5). In Security Pacific, the civil court dealt with a summary proceeding under RPAPL §§ 713(5) and 713(7). "RPAPL § 713(5) provides a holdover action may be maintained 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 [the respondents]'" ( Id. at 501). CPLR § 2105 is the certification section referred to in RPAPL § 713(5) and states:
where a certified copy of a paper is required by law, an attorney admitted to practice in the courts of the state may certify that it has been compared by him with the original and found to be a true and complete copy. Such a certificate, when subscribed by such attorney, has the same effect as if made by a clerk.
The Security Pacific court thus held that "the legislature did not intend to allow a mere facsimile of an attorney's signature to suffice where a certified copy is required by the Civil Practice Law and Rules. RPARL § 713(5) requires a deed certified in accordance with the CPLR to be published to the respondents. The ten (10) day notice to quit failed to contain a deed properly certified, therefore, the ten (10) day notice to quit was faulty "( Id. at 502-03).
This court has likewise held in S K Properties, LLC v. Wynn, NYLJ, Feb. 18, 2004, at p. 24, col. 3, that a facsimile of an attorney's signature is not acceptable concerning the certification of a deed:
Respondents next contend that the certification of a deed must be an original. The certification of the deed that is attached to the petition is made by Samuel Glass, an attorney, pursuant to CPLR § 2105. The certification is a facsimile, not an original. A copy of a signature does not comport with the requirements of CPLR § 2105 and thus a proper certification was not made ( see, Security Pacific Nat'l. Trust Co. v. Cuevas, 176 Misc 2d 846 ([1998]). Consequently, RPAPL § 713(5) was not complied with. Inasmuch as a summary proceeding is a creature of statute, strict compliance is mandatory; failing to do so requires dismissal ( see, Clarke v. Wallace Oil Co., 284 AD2d 492 [2d Dept 2001]).
The court in Vista Surgical Supplies, Inc. v. Travelers Ins. Co. , 50 AD3d 778, 860 NYS2d 532 (2nd Dept 2008) held that a facsimile of a physician's signature was not acceptable because:
These reports failed to comply with CPLR 2016, since they were not subscribed and affirmed, but merely contained facsimiles of the physician's signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized ( see Dowling v. Mosey , 32 AD3d 1190 , 1191, 821 NYS2d 326; Security Pac. Nat. Trust co. v. Cuevas, 176 Misc 2d 846, 675 NYS 2d 500; Sandymark Realty Corp. v. Creswell, 67 Misc 2d 630, 324 NYS2d 504; Macri St. Agnes Cemetery, Inc., 44 Misc 2d 702, 255 NYS2d 278). Thus, the reports did not constitute competent evidence sufficient to defeat the plaintiff's motion (citations omitted).
Thus, based upon the above, the facsimile of the attorney's signature is a jurisdictional defect rendering the 10 day notice void.
Conclusion
The summary proceeding is dismissed without prejudice to renewal upon proper papers being served with an original attorney's signature and not a facsimile.
This shall constitute the decision and order of this court.
CC:Jonathan A. Stein, P.C.
Knuckles, Komosinski Elliott, LLP