Opinion
No. 62025/2016.
02-06-2017
WALTON AVENUE REALTY ASSOCIATES LLC, Petitioner, v. Johanny SORIANO, Respondent, and Vocio De Los Santos, Third–Party Respondent.
Caiola and Mckenzie, P.C., Bronx, for Petitioner. Fernando Mancías, Esq., Bronx Legal Services, Bronx, for Respondent. Vocio De Los Santos, for Third–Party Respondent.
Caiola and Mckenzie, P.C., Bronx, for Petitioner.
Fernando Mancías, Esq., Bronx Legal Services, Bronx, for Respondent.
Vocio De Los Santos, for Third–Party Respondent.
DIANE E. LUTWAK, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of the Respondent's Order to Show Cause to Restore to Possession:
| Papers | Numbered |
|---|---|
| Order to Show Cause to Restore to Possession With Attached Affidavit | 1 |
Upon the foregoing papers, and after a hearing, the Court's decision is as follows.
PROCEDURAL HISTORY
This is a nonpayment eviction proceeding brought by Petitioner Walton Avenue Realty Associates LLC against Respondent Johanny Soriano, a Rent Stabilized tenant with a monthly rent of $1200. The Notice of Petition and Petition are dated October 10, 2016 and the Petition was filed with this court on October 19, 2016. According to the Affidavit of Service sworn to by Petitioner's process server Rayaaz Ulla on October 22, 2016, the Notice of Petition and Petition were allegedly served upon Respondent by "conspicuous place" service: After unsuccessful attempts at personal service on October 20, 2016 at 8:15 pm and October 21, 2016 at 2:36 pm, a copy of the Notice of Petition and Petition was affixed to the door of the premises with tape on October 21 and then additional copies were mailed to Respondent at the premises by certified mail and first-class mail on October 22. The Notice of Petition with proof of service was filed with the court on October 24, 2016 at 9:27 am and was stamped with the date and time as well as the notation "Postcard Notice Mailed by Court Clerk".
The Petition seeks alleged rent arrears of $1200 per month for each of the two months of September and October 2016 and alleges that the rent was demanded personally from the tenant since it became due. The Petition asserts that the premises are a registered multiple dwelling and the managing agent is Sam Applegrad, whose office is located at 2918 Avenue M in Brooklyn.
Petitioner's attorney prepared a written request dated November 23, 2016 asking the court to issue a final order based upon two affidavits sworn to by Mr. Applegrad on that same date: an "Affidavit of Merit in Support of a Default Judgment Due to Respondent's Failure to Answer" and an "Affidavit of Investigation". In the Affidavit of Merit Mr. Applegrad asserted that he had spoken with Respondent at the premises on September 26, 2016 at 12:55 pm and orally demanded the rent alleged in the Petition from her. He also asserted that Respondent owed $2400 as of the date of the Petition (October 10, 2016). Further, Mr. Applegrad alleged in paragraph 6 of his sworn Affidavit of Merit the following:
6. Since the date of the PETITION:
A) Respondent has paid no rent.
B) Respondent has paid $0.00, leaving a balance through the date of the petition of $2400.00.
In the Affidavit of Investigation, Mr. Applegrad asserted that he spoke with Respondent in person at the premises on November 23, 2016 at approximately 5:30 pm to ascertain whether or not she was presently in the U.S. Military Service. Mr. Applegrad further asserted that Respondent advised him at that time that she was neither in the military service nor dependent on anyone in the military service.
On November 29, 2016 City Marshal Richard E. McCoy filed with the court a Warrant Requisition, also dated November 23, 2016. The court issued a warrant of eviction to City Marshal McCoy on December 21, 2016.
On January 23, 2017 Respondent pro se took out a post-eviction Order to Show Cause seeking to be restored to possession. In the court's form Affidavit in support of that Order to Show Cause Respondent explained that she had been out of the country in the Dominican Republic due to a death in her family and that she had tried to contact the super to give him the rent and he never answered his cell phone or otherwise responded. On the return date of that Order to Show Cause, January 25, 2017, although Petitioner had submitted no opposition papers, its attorney argued that the Order to Show Cause should be summarily denied. Petitioner's attorney further advised the court that Petitioner had re-rented the apartment to someone by the name of Vocio De Los Santos. The Court issued an Order adjourning the proceeding to January 31, 2017 at 9:30 am for a hearing or settlement and requiring Respondent to serve a copy of the Order and her Post–Eviction Order to Show Cause on the alleged new tenant by making at least three attempts at personal service at the premises and, upon the third such attempt, if no one answered the door, to leave a copy on or under the door to the apartment and to send an additional copy by overnight mail. The court also referred Respondent to the court's Help Center for legal assistance.
On January 31, 2017 Petitioner and Respondent both appeared, both now represented by counsel, but the alleged new tenant Vocio De Los Santos did not appear. The hearing started on the afternoon of January 31, continued on the afternoon of February 1 and then was completed on the morning of February 3.
THE HEARING
Respondent testified first, and her testimony was credible and consistent throughout. Prior to her eviction, Respondent had lived in the apartment for a year and three months with her 10–year–old daughter and a cousin. She first learned of this eviction proceeding on January 12, 2017 while she was in the Dominican Republic, where she had gone on or about January 1st to visit her very ill grandfather, who has since passed away. A neighbor had sent Respondent a photograph of a paper that had been placed on her door on January 12. Respondent returned to New York City on the evening of January 22, 2017, found that she was unable to enter her apartment, came to this court the next morning and took out an Order to Show Cause returnable January 25. Respondent testified that no one ever came to her door to demand rent from her and that she never received the Notice of Petition and Petition, neither on her door nor in the mail. She testified that before she lost her mailbox key in mid-December she would check her mail approximately two or three times a week. She did not know who Sam Applegrad was, and had not spoken with him on September 26, 2016 at 12:55 pm or on November 23, 2016 at 5:30. Because she works Mondays, Wednesdays and Fridays from 3 pm to approximately 9 pm, and goes to pick up her daughter from school before going to work, she would not have been at home at 12:55 pm on September 26, which was a Monday, or at 5:30 pm on November 23, which was a Wednesday.
With regard to service of the Court's Order of January 25, 2017 on the alleged new tenant, Respondent testified that she went to the premises three times to try to serve the papers. Each time, she knocked on the door but no one answered. She never saw the new occupant and never heard anyone inside the apartment. She placed a copy of the papers under the door on the third occasion that she attempted to serve the papers and then went to the post office and mailed another copy.
With regard to her rent, Respondent testified that she paid by money orders, usually on the 10th or 11th of the month, and that the super, whose name was "Hansel", used to come by to pick up her payments. She keeps copies of her money orders in the drawer of a certain piece of her furniture and did not have those copies with her in court because they were with her things which had been removed from her apartment at the time of the eviction. She had tried to get access to her belongings by speaking with the super when she went to the building to try to serve the papers on the new tenant, but he told her that her things were locked "in the boiler room" and he did not have the key.
On cross-examination, Respondent testified that she had received none of the papers in this proceeding—neither the Notice of Petition and Petition, nor the postcard nor a Marshal's Notice. With regard to conversations with Sam Applegrad, Respondent reiterated that she did not know who he was, and that neither he nor anyone else had ever come to her apartment to speak with her about the rent. Respondent testified that the only rent she knew she owed was for the months of December and January. She only learned that the landlord claimed she owed rent for September and October when her attorney talked to her about the case the day before the hearing and showed her the Petition. When asked on cross-examination if she knew that the super (Hansel) had been fired Respondent said yes she did, and that she had been introduced to a new super in December and was given his telephone number. It was that new super she had seen at the building when she went to try to serve the papers on the new tenant and who had told her he did not have the key to the room where her belongings had been stored. Petitioner's counsel asked to see Respondent's proof of her mailing to the alleged new tenant, and two pages of United States Postal Service documents were produced and marked as Respondent's Exhibit A for Identification, although not entered into evidence. No one was in the apartment at the time of the eviction because her cousin joined her in the Dominican Republic on January 4.
With regard to her own mail and access to the mailbox, Respondent reiterated that she had lost her keys in December. She only was able to get access to the mailbox when she went to the building to try to serve the court papers on the new tenant. A postal worker happened to be there distributing mail into the open mail boxes; when she told him her name and showed him her identification he gave her the mail that had piled up in her box.
On re-direct, Respondent clarified that the name of the former super she used to give her rent to was "Hansel" and the name of his replacement at the end of November or beginning of December was "Louis". There apparently was now another new super—Reynaldo—who had appeared in court the day before, whom she previously had never seen or been introduced to. The date that the mail carrier gave her the contents of her mailbox was January 26, 2017 and the date that she mailed copies of the Court's Order of January 25 and her Order to Show Cause to the alleged new tenant was January 28, 2017.
Petitioner then called two witnesses, neither of whom was the managing agent, Sam Applegrad, and both of whom testified credibly, although briefly. First was Aaron Rosenzweig, who testified that he is a field manager for Petitioner and that his duties include collecting rent and making bank deposits. He testified that he was familiar with Respondent's tenancy and that his office's records showed that currently she owes $3900. A printout from his office's computer showing an open balance report for the subject premises was marked as Petitioner's Exhibit 1 for Identification but not entered into evidence.
When asked if Respondent paid any rent money after the case started, Mr. Rosenzweig answered yes, Petitioner received two money orders from her: one at the end of October and the other in the middle of November. Mr. Rosenzweig then produced copies of the two money orders, marked as Petitioner's Exhibit 2 for Identification, and explained that they were each for $1200, the first was dated October 17, 2016 and the second was dated November 4, 2016. He testified that they were each received and deposited within a few days of the dates stated on them.
Petitioner's second witness was Reynaldo Franco, who testified that he has been the super at the premises since around November 20. He stated that he had never seen Ms. Soriano before seeing her in the courtroom and she had never approached him at the building after the eviction to try to get her property. His duties are repairs and cleaning, and he is not permitted to collect rent.
DISCUSSION
As a preliminary procedural matter, the Court has added the alleged new tenant of the premises, Vocio De Los Santos, as a Third–Party Respondent to this proceeding. The Court finds that Respondent complied with the Court's Order of January 25, 2017 to serve her Order to Show Cause and a copy of the January 25, 2017 Order on the alleged new tenant by making three unsuccessful attempts at personal service at the premises and then leaving a copy under the door and sending an additional copy by mail.
On the substance of this proceeding, the requirement of the filing of an accurate and reliable Affidavit of Merit where a nonpayment petition has not been personally verified by the landlord is a fundamental step to be taken by a petitioner seeking a default judgment from the court. Civil Court Directive DRP–191–A ("Entry of Default Judgments", eff. Date July 14, 2010, citing Sella Properties v. DeLeon (25 Misc.3d 85, 890 N.Y.S.2d 254 [App Term 2nd Dep't 2009] ); and see generally Brusco v. Braun (199 A.D.2d 27, 605 N.Y.S.2d 13 [1st Dep't 1993], aff'd, 84 N.Y.2d 674, 621 N.Y.S.2d 291 [1994] ); 367 East 201st Street LLC v. Velez (31 Misc.3d 281, 917 N.Y.S.2d 814 [Sup Ct Bronx Co 2011] ); 104 Realty LLC v. Brown et al (41 Misc.3d 1228 [A], 981 N.Y.S.2d 637 [Table] [Civ Ct Kings Co 2013] ).
Having fully reviewed the testimony and other evidence presented at the hearing and having taken judicial notice of the contents of the court's file, the Court finds that the eviction herein was unlawful as it is based upon a default judgment that the court issued in reliance on an Affidavit of Merit that now appears to contain false statements. The Petition in this proceeding for nonpayment of rent is dated October 10, 2016 and sought two months of rent at the rate of $1200 per month. The "Affidavit of Merit" upon which the court entered a default judgment contains the false sworn statement of Petitioner's managing agent Sam Applegrad that, "Since the date of the PETITION: A) Respondent has paid no rent." As testified to by Petitioner's own field agent Aaron Rosenzweig, Respondent did pay two months of rent after the date of the Petition (October 10, 2016) and prior to the date of Mr. Applegrad's sworn statement (November 23, 2016), specifically in the form of money orders dated October 17, 2016 and November 4, 2016, each in the amount of $1200, each received and deposited by Petitioner, according to Mr. Rosenzweig's testimony, within a few days of the dates appearing on those money orders.
Mr. Applegrad in his Affidavit of Merit failed to advise the court of Petitioner's receipt of Respondent's rent payments on or around October 17, 2016 and on or around November 4, 2016. As explained by the court in 115 Mulberry LLC v. Giacobbe (46 Misc.3d 1229[A][Civ Ct N.Y. Co 2015] ), "The whole purpose of that affidavit of merits is to confirm for the court that the rent sued for had not been tendered. The failure to do so is the equivalent of perpetrating a fraud upon the court." See also, e.g., Intervale Ave Assoc v. Donlad (38 Misc.3d 1221[A], 969 N.Y.S.2d 803 [Table] [Civ Ct Bronx Co 2013] ) ("the practice of ‘robo-signing’ is as intolerable in Residential Housing Court proceedings as the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, found the practice to be in Residential Foreclosure actions"); Turin Hous Dev Fund v. Suarez (40 Misc.3d 1221[A][Civ Ct Bronx Co 2013] ) (filing of a false non-military affidavit is a criminal act and may warrant the imposition of costs and/or sanctions under 22 NYCRR § 130–1.1 against the Petitioner and/or its attorneys); Davidson Ave SIP HDFC v. Ellis (31 Misc.3d 1206[A], 929 N.Y.S.2d 199 [Civ Ct Bronx Co 2011] )("where a false affidavit of non-military status is filed in connection with a landlord-tenant proceeding, the proceeding is deemed to be in violation of law").
The two payments Mr. Rosenzweig described having received from Respondent fully satisfied the Petition and Petitioner should not have requested issuance of a default judgment against Respondent. Petitioner made no motion to amend the Petition to include any allegedly unpaid rent for subsequent months and no agreement had been entered into between the parties allowing payments made to be applied to current rent.
Finally, the court draws a negative inference from the alleged new tenant's failure to appear at the hearing and failure to demonstrate interest in protecting any rights or raising any claims he or she may have. Accordingly, the balance of the equities favors Respondent, Pomeroy Co v. Thompson (5 Misc.3d 51, 784 N.Y.S.2d 278 [App. Term 1st Dep't 2004] ), and Vocio De Los Santos will need to vacate the premises.
CONCLUSION
Accordingly, the judgment and warrant are hereby vacated and Petitioner is ordered to restore Respondent to possession of the premises. A judgment of possession in favor of Respondent and against Vocio De Los Santos is further granted, with issuance of the warrant forthwith, execution stayed through and including February 24, 2017.
The court will notify the parties' counsel that copies of this Decision and Order are available and will provide them in hand at the courthouse. The court will also mail a copy of this Decision and Order to the Third–Party Respondent Vocio De Los Santos. This constitutes the Decision and Order of this Court.