Opinion
Index No. L & T 302349/20
02-01-2022
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Petitioner, v. Paula D. AUGUSTINE, Kenneth Augustine, Ed Augustine, Ms. Augustine — First Name Refused, John Doe, Jane Doe, Respondents.
Robert Sambursky, Esq., Stein, Wiener & Roth, L.L.P., One Old County Road, Suite 113, Carle Place, NY 11514, Attorney for Petitioner Lawrence Spivak, Esq., 160-01 Hillside Avenue, Ground Level, Jamaica, NY 11432, Attorney for Respondents
Robert Sambursky, Esq., Stein, Wiener & Roth, L.L.P., One Old County Road, Suite 113, Carle Place, NY 11514, Attorney for Petitioner
Lawrence Spivak, Esq., 160-01 Hillside Avenue, Ground Level, Jamaica, NY 11432, Attorney for Respondents
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents’ motion to dismiss pursuant to CPLR § 3211 :
Papers Numbered
Notice of Motion & Affirmation/Exhibits Annexed 1 (NYSCEF No.17-18)
Affirmation in Opposition & Exhibits Annexed 2 (NYSCEF #19-22)
Reply Affirmation & Exhibit Annexed 3 (NYSCEF #23)
Upon the foregoing cited papers, the decision and order on respondents’ motion to dismiss is as follows.
PROCEDURAL HISTORY
This post-foreclosure holdover proceeding was commenced in December 2020. Following initial appearances in Part Z2, the proceeding was adjourned to Part E on December 23, 2021. Prior to the adjourned date in Part E, respondents, through counsel, filed the instant motion to dismiss. The motion was fully briefed and the court heard argument on December 23, 2021 (via Teams). Decision was reserved upon the conclusion of the argument.
RESPONDENTS’ MOTION
Respondents’ motion seeks dismissal on two primary grounds. First, respondents argue that because the notice to quit did not include a specific vacate date, it is defective. Second, respondents assert that petitioner's status as trustee was not sufficiently documented when the notice to quit was served. Petitioner opposes both grounds.
DISCUSSION
I. Lack of vacate date in notice to quit.
Respondents highlight the lack of a specific vacate date in the notice to quit and argue that this is a defect because only one respondent, Paula Augustine, was served personally and that the other respondents were served via substitute service, so that the date of vacatur was ambiguous for those not personally served. Respondents further argue that because service occurred in mid-March 2020, when New York City was nearing "lockdown" (because of the COVID-19 public health emergency), the ambiguity regarding the date of vacatur was exacerbated. Petitioner, through counsel, responds that RPAPL § 713(5) [which concerns post-foreclosure holdovers] does not require a specific date of vacatur, only 10 days’ notice to quit. Petitioner also denies that any laws or orders in effect at the time of service (issued in response to the COVID-19 emergency) prevented service of a predicate notice.
A special proceeding under the grounds enumerated in RPAPL § 713 "may be maintained after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735[.]". Accordingly, the statute does not require that the notice include a specific date of vacatur, but only 10 days’ notice to quit. In assessing the notice to quit served herein, the notice specifically states as follows: "This notice demands that all persons vacate, quit and surrender the Premises to the undersigned TEN (10) DAYS AFTER SERVICE OF THIS NOTICE ON YOU ("the Vacate Date")." [Emphasis in original]. Since service according to RPAPL § 735 is required for a notice to quit, and multiple service options (personal, substitute, and conspicuous) are permitted under that statute, the court finds the language in the notice to appropriately give 10 days’ notice to each respondent in accordance with the statute. See Hughes v. Lenox Hill Hosp. , 226 AD2d 4, 18 [1st Dept 1996], lv denied 90 NY2d 829 [1997] [In assessing a predicate notice, "the appropriate test is one of reasonableness in view of the attendant circumstances."]; Oxford Towers Co. v. Leites , 41 AD3d 144 [1st Dept 2007].
As to respondents’ argument that the impending COVID-19 "lockdown" created undue confusion about the date of vacatur, the court does not interpret the executive and administrative orders in effect at the time of service to have prevented service of a notice to quit. Administrative Order 68/20 (issued on March 16, 2020) suspended "eviction proceedings and pending eviction orders" statewide; however, service of a notice to quit, while a required predicate, is not the commencement of an "eviction proceeding." See RPAPL § 701 ; 92 Bergenbrooklyn, LLC v. Cisarano , 50 Misc 3d 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]. Meanwhile, Executive Order 202.8, which was issued on March 20, 2020, tolled various time limits for commencement, filing, and service of "any legal action, notice, motion, or other process or proceeding." Executive Order 202.8 was extended by subsequent orders through and including November 3, 2020. See Executive Order 202.72; Brash v. Richards , 195 AD3d 582, 584 [2d Dept 2021]. Consequently, even assuming arguendo that the notice period under RPAPL § 713 was subject to Executive Order 202.8 and its extensions, the 10-day notice period would have expired no later than mid-November 2020. The petition was not filed until December 2, 2020, and service of the pleadings occurred thereafter. As a result, respondents were accorded the full statutory time to vacate before the commencement of this proceeding, even with the modifications of time periods effectuated by the relevant Executive Orders.
II. Lack of proof of trustee status with notice to quit.
Respondents argue that because the notice to quit was not accompanied by documentation of petitioner's status as trustee of the LSF9 Master Participation Trust, it is defective. Petitioner, in opposition, counters that the power of attorney annexed to the notice to quit is sufficient to demonstrate the authority of the signatory to act on behalf of petitioner.
While Siegel v. Kentucky Fried Chicken of Long Island, Inc. , 108 AD2d 218 [2d Dept 1985], affd 67 NY2d 792 [1986], which held that that notices of default were defective because they were not authenticated or accompanied by proof to bind the landlord, is the starting point for the analysis of this issue, appellate courts in the Second Department have subsequently stressed the narrowness of its holding. See Matter of QPII-143-45 Sanford Ave., LLC v. Spinner , 108 A.D3d 558, 559-560 [2d Dept 2013] ["Siegel is limited to the ‘factual peculiarities’ of the lease in that case" [and] "the failure to include evidence of the agent's authority to bind the landlord did not render [the owner] noncompliant with the requirements of the notice provision and did not render the notice invalid."]; Port Royal Owners Corp. v. Navy Beach Rest. Group, LLC , 57 Misc 3d 13, 15 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]. Several lower court decisions rendered in the wake of Spinner (including one by this court) have held that a notice to quit may be signed by an agent of an attorney-in-fact of a petitioner, so long as documentation of the power of attorney is included with the notice. See Wilmington Trust, N.A. v. Holmes, 68 Misc 3d 1220[A], 2020 NY Slip Op 51033[U] [Civ Ct, Queens County 2020] ; Deutsche Bank National Trust Company for New Century Home Equity Loan Trustem Series 2005-C v. Cordova , 62 Misc 3d 1219[A], 2019 NY Slip Op 50178[U] [Dist Ct, Nassau County 2019] ; Bank of NY Mellon v. Salahuddin , 60 Misc 3d 999, 1005 [Poughkeepsie City Ct 2018].
Here, it is undisputed that the notice to quit was accompanied by the attorney-certified referee's deed for the subject premises (which specifically refers to petitioner as trustee for the relevant trust), along with the limited power of attorney appointing Hudson Homes Management LLC as attorney-in-fact for petitioner, as trustee for LSF9 Master Participation Trust (among other trusts). The notice is purported to be signed by Hope Rosales on behalf of Hudson Homes Management LLC. While it is well established that the recipient of a notice must be able to act upon it with safety ( Reeder v. Sayre , 70 NY 180, 187-188 [1877] ), the court is satisfied that the documentation included with the notice here, namely the attorney-certified deed and the power of attorney, were sufficient to apprise respondents of the signatory's authority to act on behalf of petitioner as trustee and transferee of a property sold in foreclosure. See Port Royal Owners Corp. , 57 Misc 3d at 15 ; see also Plotch v. Dellis , 60 Misc 3d 1, 4-5 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018].
CONCLUSION
For the foregoing reasons, respondents’ motion to dismiss is denied in its entirety. Pursuant to CPLR § 404(a), the court grants respondents permission to file an answer on or before February 22, 2022. This proceeding will be restored to the Part E calendar for all purposes on March 9, 2022 at 9:30 AM. Virtual appearances will be permitted, subject to any further administrative directives of the court. This Decision/Order will be filed to NYSCEF.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.