Opinion
No. L & T 64788/12.
2013-04-30
TIFFANY GARDENS, L.P., Petitioner, v. Sandy JOSEPH, Respondent.
Jason D. Boroff & Associates, PLLC, New York, Attorney for Petitioner. Sandy Joseph, Bronx, Respondent.
Jason D. Boroff & Associates, PLLC, New York, Attorney for Petitioner. Sandy Joseph, Bronx, Respondent.
SUSAN AVERY, J.
The above captioned matter was submitted to this court on March 14, 2013 for review of the petitioner's application for the entry of a default judgment and the issuance of a warrant of eviction. On March 18, 2013, this court denied the application, stating its reasons as follows: “Renew with affidavit of default detailing basis of personal knowledge.”
RENEWED APPLICATION
Contrary to the directive of this court, petitioner failed to submit an updated affidavit detailing the basis of the affiant's personal knowledge. Rather, on April 19, 2013, submitted to this court, was petitioner's renewed application seeking the entry of a default judgment and the issuance of a warrant of eviction with the exact same insufficient affidavit, sworn to on a later date.
INADEQUACIES OF THE RENEWED APPLICATION
The practice of re-submitting an ex parte application seeking the entry of a default judgment and the issuance of a warrant of eviction, which contains a previously insufficient affidavit, sworn to at a later date is unacceptable to this court. Any re-submission must include an affidavit which states the prior insufficiencies and cures such defects. A petitioner's failure to do so, is contrary to law
and a misuse of the court's limited resources.
.2132 Presidential Assets, LLC., v. Carrasquillo, 2013 N.Y. Slip Op 23080 (Civ Ct, Bronx County, [2013] ); Civil Practice Law and Rules “CPLR” § 2217(b).
THE AFFIDAVIT
RESUBMITTED IN THE CASE AT BAR
The four (4) paragraph affidavit, submitted twice to this court, in support of petitioner's application for the entry of a default judgment and the issuance of the warrant of eviction, is wholly insufficient, as detailed below.
FIRST PARAGRAPH OF THE AFFIDAVIT
RESUBMITTED IN THE CASE AT BAR
The first numbered paragraph of the affidavit, submitted twice in the instant matter, reads as follows: “I am an agent of the Petitioner/Landlord and as such, am personally familiar with the facts and circumstances set forth herein.”
There is nothing in this affidavit to demonstrate that the affiant, “an agent” of petitioner, has any actual familiarity with “the facts and circumstances herein.” The affiant does not state her job responsibilities or the exact nature of her “familiarity” with the matter at bar. Merely because an individual is a self stated “agent” of the petitioner/landlord, without more, is insufficient to demonstrate actual first hand personal knowledge of a petitioner/landlord's business practices.
“[D]efendant's affidavit is self-serving and that the managing agent ... lacks personal knowledge of the facts” Miller v. City of New York, 253 A.D.2d 394 (1st Dept, [1998] ); affidavit of landlords agent is insufficient as, the “agent had no apparent personal knowledge of facts ...” St. Owner LP v. Doe, 26 Misc.3d 198 (Civ Ct N.Y. County, [2009] ).
Without a demonstrated personal familiarity with the business practices of the petitioner/landlord, the affiant cannot show an actual “personal familiar[ity] with the facts and circumstances set forth” in the instant action. Accordingly, the affiant cannot attest to the authenticity of rent records created by the petitioner, and therefore, the affiant is unable to prove a claim exists or that respondent is in default.
SECOND PARAGRAPH OF THE AFFIDAVIT
RESUBMITTED IN THE CASE AT BAR
The second numbered paragraph of the affidavit, submitted twice in the instant matter, reads as follows: “I have reviewed the captioned Petition and verify that the facts contained herein are true to my own personal knowledge.”
The affiant does not state which “captioned [p]etition” she reviewed, and it is fair to conclude that the affiant did not review “the above captioned petition ...” As a result, it is not clear to this court that the affiant even looked at the petition relevant to the instant matter.
The affidavit in support of the application must state that the affiant actually reviewed the petition relevant to the matter at bar, and knows the contents thereof to be true based upon demonstrated personal knowledge.
Because the affiant failed to demonstrate having reviewed the petition, or any documents or records, the affidavit submitted, cannot support the granting of the instant application.
Petitions filed in Housing Court non payment proceedings, such as in the case at bar, may be verified by counsel “on information and belief” (Real Property Actions and Procedure Law “RPAPL” § 741). A petition, so verified, cannot, standing alone, support the entry of a default judgment, since a petition, verified by an attorney without stating that is it based on personal knowledge and detailing the basis for that personal knowledge, is insufficient; Schmitt v. New York State Dept. of Correctional Services, 47 AD3d 1098 (3rd Dept, [2008] “[the] Court dismissed that portion of the petition as defective because it was signed only by a person lacking personal knowledge, namely petitioner's counsel [dismissal affirmed]”).
See also In re Lenea'jah F., 2013 N.Y. Slip Op. 02481 (App.Div. 1st Dept, [2013] ) “affirmation by counsel, who did not have personal knowledge of the facts [was insufficient].”
“[T]he court found that the affidavit ... was also insufficient since the affidavit fails to indicate the specific sources of his knowledge' (e.g. business records or other documents he may have researched or reviewed) ... and contains conclusory allegations regarding his personal knowledge,” GBI Acupuncture, P .C. v. Esurance Ins. Co., 38 Misc.3d 1208(A) [Civ Ct Kings County, 2012] citing Barraillier v. City of New York, 12 AD3d 168 [1st Dept, 2004].
THIRD PARAGRAPH OF THE AFFIDAVIT
RESUBMITTED IN THE CASE AT BAR
The third numbered paragraph of the affidavit, submitted twice in the instant matter, reads as follows: “To date, the amount demanded in the [p]etition has not been satisfied.”
As stated above, this court is not convinced that the affiant actually reviewed the petition relevant to the instant matter, so the statement that the amount demanded in the petition “has not been satisfied” is not credible. Additionally, there is nothing to demonstrate what documents or records, if any, the affiant actually reviewed to conclude that the amount demanded in the petition has not been satisfied.
There are no records referenced, such as the petitioner's rent ledgers relative to respondent's account, to demonstrate what sums, if any may have been paid
“[T]he court found the affidavit ... was also insufficient since the affidavit fails to indicate the specific sources of his knowledge' (e.g. business records or other documents he may have researched or reviewed) ... and contains conclusory allegations regarding his personal knowledge” GBI Acupuncture, P.C. v. Esurance Ins. Co., 38 Misc.3d 1208(A) [Civ Ct Kings County, 2012] citing Barraillier v. City of New York, 12 AD3d 168 [1st Dept, 2004]; The affidavit “... failed to demonstrate that [the affiant] possessed sufficient personal knowledge of plaintiff's office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records see CPLR 4518 ...” Dan Medical, P.C. v. New York Central Mutual Fire Insurance Co., 14 Misc.3d 44 [App Term 2 Dept, [2007] ).
or that no sums were paid at all. However, even if such records/ledgers were referenced and attached, since the affiant fails to demonstrate actual personal knowledge of the petitioner's business practices, it would not help petitioner's claim, as the affiant would still be unable to authenticate any document as a business record, CPLR § 4518.
... [the affidavit] does not comply with [applicable laws as it] fail(s) to attach copies of what electronic-documents' [were] reviewed to make [t]his statement....” American Exp. Bank, FSB v. Dalbis, 30 Misc.3d 1235(A) (Civ Ct, Richmond County, [2011] ).
Additionally, this court notes that the petition (at ¶ 4) seeks $500.00 in legal fees. The court also notes that the petition (at ¶ 7) states that the premises from which removal is sought, is subject to the rent stabilization law. Since legal fees cannot be part of a possessory claim for a rent regulated apartment
, the allegation that “the amount demanded in the [p]etition has not been satisfied” cannot support the entry of a default possessory judgment.
“we adhere to our previously expressed view that in eviction proceedings involving regulated tenants attorneys' fees' may not be considered rent' or be awarded as additional rent' in order to enable landlord to obtain a possessory judgment” Crystal World Realty Corp. v. Sze. 2001 WL 1635430 (App Term 1st Dept, [2001] )citing to Silber v. Schwartzman, 150 Misc.2d 1 (App Term 1st Dept, [1991] ).
Moreover, even if the affidavit was otherwise sufficient, the allegation that the “amount demanded in the [p]etition has not been satisfied” still would not support the entry of a default possessory judgment, as there is no allegation that no sums demanded in the petition have been paid, or that all but an amount in excess of $500.00 remains outstanding.
FOURTH PARAGRAPH OF THE AFFIDAVIT
RESUBMITTED IN THE CASE AT BAR
The fourth and final numbered paragraph of the affidavit, submitted twice in the instant matter, reads as follows: “I respectfully request that the warrant of eviction be issued forthwith and a default judgment be entered.”
Merely reciting that the the entry of a default judgment is requested, is not sufficient to demonstrate that a default judgment is warranted. The affiant must demonstrate that the respondent actually owes the amount claimed and is in default.
“the movant is required to submit ... proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing” Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649 (2 Dept, [2011] ); CPLR § 3215[f].
STANDARD FOR RE–SUBMISSION
As noted above, the common practice of re-submitting a previously insufficient ex parte default judgment application, using the same previously insufficient affidavit, which is merely sworn to on a subsequent date, rather than amend the submission and cure the infirmities, is improper. This court recently held that this practice is contrary to the law, against public policy and unacceptable to this court.
.2132 Presidential Assets, LLC., v. Carrasquillo, 2013 N.Y. Slip Op 23080 (Civ Ct, Bronx County, [2013] ).
The law requires that such a re-submission contain a statement in the affidavit informing the court of the result of the prior application, and specify any new facts, that were not previously demonstrated.
Specifically, CPLR § 2217(b) reads as follows:
“An ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown.”
Therefore, any re-submission of a previously declined application for the entry of a default judgment and issuance of a warrant of eviction, must include facts, based upon personal knowledge, detailing any previously neglected fact(s) or omission(s) not stated in the prior submission to the court. The submission must also include copies of the documents reviewed by the affiant to substantiate any asserted entitlement to the relief sought.
RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS
The submission must contain a statement in compliance with the Rules of the Chief Administrator of the Courts.
This rule requires that every submission to the court be signed by the attorney (or party, if the party is self-represented), with the name of the attorney (or the self-represented litigant) clearly printed or typed directly below the signature. Absent good cause shown, the court is required to strike any unsigned paper if not promptly cured following notice.
.22 NYCRR § 130–1.1–a; NY Ct R Chief Admin § 130–1.1–a.
The rule states that the signature certifies that the submission presented to the court is not frivolous.
.22 NYCRR § 130–1.1–a (a).
.22 NYCRR § 130–1.1–a (b).
CONCLUSION
The continued failure to comply with the Rules of the Chief Administrator of the Courts, CPLR § 2217(b) and the law as outlined in this Decision/Order may be deemed prima facie, frivolous, and subject the petitioner and/or counsel to appropriate sanctions.
Supra.
ORDER
Based upon the foregoing, the instant application is denied with leave to renew on a proper submission, in compliance with the directives of this Decision/Order.
The named respondent, if so inclined, may appear in court and file any appropriate document with the proper clerk.
The foregoing constitutes the Decision and Order of the court.