Opinion
3301-18
02-25-2019
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST, Petitioner, v. Cleaster HAYES, Corey Hayes and Andrea Brown, Respondents.
Steiner, Wiener and Roth, L.L.P., Attorneys for Petitioner, One Old Country Road, Suite 113, Carle Place, New York 11514 Louis M. Spizzirro, Esq., Attorney for Respondent, Corey Hayes, 165 Bronx River Road, Yonkers, New York 10704
Steiner, Wiener and Roth, L.L.P., Attorneys for Petitioner, One Old Country Road, Suite 113, Carle Place, New York 11514
Louis M. Spizzirro, Esq., Attorney for Respondent, Corey Hayes, 165 Bronx River Road, Yonkers, New York 10704
Adrian N. Armstrong, J.In this post-foreclosure summary proceeding ( RPAPL 713 [5 ] ), the record shows that, on November 6, 2018, petitioner effected personal service of a 10-day notice to quit on occupant Andrea Brown, at the premises, a two story residence purchased by petitioner at a foreclosure sale in 2018, and, by serving additional copies of the papers upon her, effected substituted service on occupants Cleaster Hayes and Corey Hayes. A copy of the referee's deed was annexed to the notice to quit.
Respondent Corey Hayes now moves to dismiss so much of the petition as is asserted against him, on the ground that service of process was defective. Respondent argues that substituted service cannot fulfill the requirement of RPAPL 713 (5) to exhibit a certified referee's deed.
RPAPL 713 (5) requires that in addition to the service of a 10 day notice to quit in the manner in which a notice of petition is served, the referee's deed, or a certified copy thereof, must be exhibited to the respondent as a condition precedent to the accrual of a cause of action under said statute.
In support of his motion to dismiss, respondent mistakenly relies on Home Loan Servs., Inc. v. Moskowitz , 31 Misc. 3d 37, 920 N.Y.S.2d 569 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011]. There, the court held that attaching a certified copy of the referee's deed to the notice to quit did not satisfy the requirement of RPAPL 713 (5) that the deed be exhibited to the respondent, where the notice to quit was served by conspicuous-place service.
The former exacting requirements regarding the manner in which the exhibition required by the statute could properly be effected have most recently been relaxed by the same branch of the Appellate Term of the Supreme Court, Second Department, that had previously held that exhibition could not be accomplished via the equivalent of nail and mail service which in turn led to decisions that same could not be accomplished by any means of substituted service ( Plotch v. Dellis , 60 Misc. 3d 1, 75 N.Y.S.3d 779 [App. Term, 2d Dept., 2d, 11th & 13 Jud. Dists. 2018] ).
In this post-foreclosure summary proceeding, the requirement of RPAPL 713 (5) that the deed delivered pursuant to such sale, or a copy of such deed, be exhibited to respondent was satisfied where, as part of the substituted service, a certified copy of the deed was left at the premises with a person of suitable age and discretion for respondent to retain and examine. Service by means other than personal delivery of a certified copy of the deed, i.e., service of the certified copy of the deed which was left at the premises for the respondent to retain and examine, satisfies the exhibition requirement ( Id., at 5 ; see also Citibank N.A. v. Colucci , 60 Misc. 3d 135[A], 2018 WL 3321236 [App. Term Second Dept.] ; M & T v. Caruso , 60 Misc. 3d 501, 76 N.Y.S.3d 776 [Justice Ct. Town of Pound Ridge, Westchester County] ).
Based upon the foregoing, respondent's reliance on Moskowitz is misplaced as this is no longer controlling law. Exhibition of the deed by substituted service or other means is now deemed acceptable service.
Accordingly, respondent's motion to dismiss is denied, and the respondent is directed to submit an Answer by the adjourned date of March 12, 2019, at 9:30 a.m..
This constitutes the Decision and Order of this Court.
The court considered the following papers in this matter: Motion to Dismiss, dated February 1, 2019; Affirmation in Opposition to Dismiss dated February 14, 2019, Exh. A.