Opinion
No. L & T 60527/12.
2013-02-7
INTERVALE AVE ASSOC, Petitioner, v. Amanda DONLAD, Respondent(s). Intervale Ave Assoc, Petitioner, Stafford Ivey, Respondent(s). Boricua Village D, LLC, Petitioner, Stacy Bates, Respondent(s). Cortlandt Ave Assoc, LP, Petitioner, Raheem Cropper, Respondent(s). Merriam Ave Assoc LP, Petitioner, Jennifer Minero, Respondent(s). Bruckner Bythe Bridge LLC, Petitioner, Thomas Morales, Respondent(s). Ogden Ave Assoc LP, Petitioner, Michael Benitez, Respondent(s). Ogden Ave Assoc LP, Petitioner, M. Vecchiarelli (Comunilife), Respondent(s). Aldus St Assoc LP, Petitioner, Bamba Broulaye, Respondent(s). Hoe Ave Assoc LP, Petitioner, Thaycha Ruiz, Respondent(s). Hoe Ave Assoc LP, Petitioner, Janira Perez, Respondent(s). Concord Ave Assoc LP, Petitioner, Stephanie Arroyo, NYCHA, Respondent(s). Lafontaine Ave Assoc., LP, Petitioner, Bernard Abudu, Respondent(s). 1240 Washington Ave LP, Petitioner, Melissa Blanks, Respondent(s). Intervale Ave Assoc, Petitioner, v. Stafford Ivey, Respondent(s). Boricua Village D, LLC, Petitioner, v. Stacy Bates, Respondent(s). Cortlandt Ave Assoc, LP, Petitioner, v. Raheem Cropper, Respondent(s). Merriam Ave Assoc LP, Petitioner, v. Jennifer Minero, Respondent(s). Bruckner Bythe Bridge LLC, Petitioner, v. Thomas Morales, Respondent(s). Ogden Ave Assoc LP, Petitioner, v. Michael Benitez, Respondent(s). Ogden Ave Assoc LP, Petitioner, v. M. Vecchiarelli (Comunilife), Respondent(s). Aldus St Assoc LP, Petitioner, v. Bamba Broulaye, Respondent(s). Hoe Ave Assoc LP, Petitioner, v. Thaycha Ruiz, Respondent(s). Hoe Ave Assoc LP, Petitioner, v. Janira Perez, Respondent(s). Concord Ave Assoc LP, Petitioner, v. Stephanie Arroyo, NYCHA, Respondent(s). Lafontaine Ave Assoc., LP, Petitioner, v. Bernard Abudu, Respondent(s). 1240 Washington Ave LP, Petitioner, v. Melissa Blanks, Respondent(s).
Offer Wade, Esq., Richmond Hill, Attorney for the petitioner.
SUSAN AVERY, J.
The above captioned matters, submitted to this court for the entry of default judgments and issuances of warrants of eviction, are consolidated for purposes of this decision. Common factors shared in these fourteen (14) consolidated cases, in which eleven (11) different petitioners are named, include: (1) all the petitioners are represented by the same attorney; (2) each affidavit in support of the entry of the default judgment is sworn to by the same individual, to wit: Michael Gazal; (3) the affiant claims to be an employee of each named petitioner in each of the fourteen (14) cases; (4) all fourteen (14) affidavits are notarized by the same individual; and (5) each of the fourteen (14) documents submitted by the eleven (11) different named entities, entitled, “Affidavit of Merit/Default read exactly as follows:
“____ Michael Gazal, being duly sworn, deposes and says:
Contrary to precedent that “[an] affidavit should contain separate, numbered paragraphs for each factual allegation” GBI Acupuncture, P.C. v. Esurance Ins. Co., 38 Misc.3d 1208(A) (Civ Ct Kings County, [2012] ) referencing, generally Phillips v. Girdich, 408 F3d 124 (Ct App 2d Cir. [2000] ); “[in order] to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers” GBI Acupuncture, P.C. v. Esurance Ins. Co., supra, the fourteen (14) affidavits submitted in the matters currently before the court fail to contain numbered paragraphs. As a result of petitioner's failure to sequentially number each paragraph of any of the affidavits, this court is unable to direct the reader to any paragraph by specific paragraph number, when referring to specific language in the affidavits.
I am an employee for the petitioner. I have personal knowledge and am fully familiar with the facts and circumstances surrounding this proceeding.
I have reviewed the captioned Petition ( sic ) and verify the facts contained are true to my own personal knowledge.
The within petition ( sic ) remains unsatisfied and no part of the rent demanded in the Petition ( sic ) has been paid.
I respectfully request that the warrant of eviction be issued forthwith and a default judgment be entered.
Sworn to before me
[____] day of Dec 2012
____ /s/ Ursula DeLeon ____ /s/ Michael Gazal ____
Notary”
The only difference in the affidavits is that they are all claimed to have been sworn to on either December 6, 2012 or December 7, 2012 and one is claimed to have been sworn to on December 5, 2012.
INFIRMITIES OF EACH FOURTEEN (14) AFFIDAVITS
Troubling to this court is that each “Affidavit of Merit/Default” shows that the same individual states that he is an employee of each of the eleven (11) different named petitioners, each states that the affiant has “personal knowledge” and is “fully familiar with the facts and circumstances surrounding [each] proceeding” yet each affidavit is silent as to how exactly the affiant gleans his “personal familiar[ity] with the facts and circumstances surrounding [each] proceeding.” For example, the affiant does not state that it is his responsibility to maintain the books and records of each (or any) of the eleven (11) different entities that he claims employ him
, nor does he state that it is his responsibility to maintain any of the petitioners' records, nor does he authenticate any records to be true and accurate documents, kept in the ordinary course of [each, or any of] petitioners' business'
“[T]he court found that the affidavit of plaintiff's corporate officer 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 or persons with whom he consulted) 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].
See Civil Practice Law and Rules (“CPLR”) § 4518.
Moreover, the affiant states in each affidavit that he has reviewed each petition and he “verif[ies that] the facts contained are true to my own personal knowledge.” However, the affiant fails to state the basis of his personal knowledge, whether he came to court to view the contents of each petition, the contents of each, which he verifies is true, or whether he keeps copies of each petition in each of the offices of each petitioner that he claims he is employed by, and reviewed them in each separate petitioners' office. Additionally, Mr. Gazal fails to factually detail the basis for his conclusion that the “facts contained are true to my own personal knowledge.”
Similarly, there are no facts alleged for the affiants conclusion that: “[t]he within petition remains unsatisfied and no part of the rent demanded ... has been paid.” Most notably, because each of the fourteen (14) affidavits, for each of the eleven (11) different entities read identically and assert conclusory allegations without alleging any factual support, this court was concerned, that petitioner seeks to submit affidavits that are executed by a “robo-signer”
, rather than by an individual based upon actual first hand personal knowledge.
“A robo-signer' is a person who quickly signs [numerous] ... documents in a [limited period of time, and] despite swearing that he or she has personally reviewed the ... documents ... has not done so” Onewest Bank, F.S.B. v. Drayton, 29 Misc.3d 1021 (Sup Ct N.Y. County, [2010] ).
STANDARD FOR ENTRY OF A DEFAULT JUDGMENT IN
HOUSING COURT PROCEEDINGS
As relevant to the matters at bar, in non-payment summary proceedings commenced in Housing Court where a respondent has failed to appear or answer following five (5) days from service of the notice of petition and petition, a petitioner may move for entry of a default judgment and issuance of the warrant of eviction. Default applications are generally governed by CPLR § 3215(f)
which requires that the application contain proof of service of the notice of petition and petition; proof of the claim, including the amount due; and proof of the default
See generally, Siegel, New York Practice § 295.
. Most relevant to the instant decision, is that the petitioner establish its proofs of claims and each respondents' default thereof.
Siegel, New York Practice, supra.
To sustain its burden of establishing its proof of claim, the petitioner “must tender evidentiary proof' in admissible form,” American Express v. Badalamenti, 2010 N.Y. Slip Op 52238 (Dist Ct Nassau County, [2010] ), quoting Zuckerman v. City of NY, 49 N.Y.2d 557 [1980]
. 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
See also Sella Properties v. Deleon, 25 Misc.3d 85 (App Term 2nd Dept, [2009] ) entry of a default final judgment in a commercial nonpayment summary proceeding had to be supported by a petition or an affidavit sworn to on personal knowledge.
. Additionally, an affidavit by petitioner based upon information and belief is insufficient and incapable of supporting a default judgment where it made no reference to the source of the information nor the grounds for the belief.
Hazim v. Winter, 234 A.D.2d 422 (2d Dept, [1996] ); Wolf v. 3540 Rochambeau Associates, 234 A.D.2d 6 (1st Dept, [1996] ); Bldg Management Co., Inc. v. Vision Quest of Flatbush, 1 Misc.3d 681 (Civ Ct Kings County, [2003] ); Triangle Properties # £2, LLC v. Narang, 73 AD3d 1030 (2nd Dept, [2010] ).
Henriquez v. Purins, 245 A.D.2d 337 (2nd Dept, [1997] ); Zelnik v. Bidermann Industries U.S.A., Inc., 242 A.D.2d 227 (1st Dept, [1997] ).
“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures” Unifund CCR Partners v. Youngman, 89 AD3d 1377, 1378 [4th Dept, 2011]; West Val. Fire Dist. v. Village of Springville, 294 A.D.2d 949, 950 (4th Dept, [2002] ); see also CPLR § 4518. Where the actual basis of the affiant's knowledge is not specific, the conclusions asserted may be deemed questionable.
“[A]lthough she purportedly made the affidavit based upon her personal knowledge' and/or her review of the Plaintiff's business records,' she evidently had no idea, when she signed the affidavit, that the last statement on the account showed a $0.00' new balance” Discover Bank v. Shimer, 36 Misc.3d 1214(A) (Dist Ct Nassau County, [2012] ).
CAUSE FOR SUSPICION
Analogous to the case at bar, in Shimer
, the court expressed concern, because the affidavit was “identical, except for the amount claimed, to affidavits from other individuals employed by this [same] servicing affiliate,” citing Discover Bank v. Parisi, supra. This concern is even stronger in the instant matters, as the identical affidavits submitted, fail to assert any factual basis for its conclusions in all fourteen (14) cases. As held by the court in Shimer, the result of such identical affidavits, leads to a “suspicion of robo-signing” supra.
Ibid.
SUSPICION OF “ROBO–SIGNING”
The courts have consistently demonstrated an intolerance for “robo-signing.” The practice has been specifically rejected in residential foreclosure cases.
Indeed, as a result of the courts intolerance to affidavits which are “robo-signed” the Chief Justice of the Court of Appeals, Jonathan Lippman, introduced a filing requirement addressed to remedy this flawed practice,
See, Onewest Bank, F.S.B. v. Drayton, 29 Misc.3d 1021 (Sup Ct, Kings County, [2010] ) foreclosure action is dismissed “without prejudice, with leave to renew [on proper papers, which shall contain] an affidavit from Erica A. Johnson—Seck, a .... ‘robo-signer’ explaining her employment status.” See also, Administrative Order of the Chief Administrative Judge, AO/548/10.
“As a response widespread deficiencies in affidavits and robo-signing' of supporting documents, it is now the requirement that plaintiff's counsel, in foreclosure actions must file an affirmation certifying that counsel taken reasonable steps—including ... careful review of the papers filed ... to verify the accuracy of documents filed in support of residential foreclosures, Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010, referencing Administrative Order of the Chief Administrative Judge, AO/548/10.
“[t]his new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error free before any judge is asked to take the drastic step of foreclosure” (Office of Court Administration, New York Courts First in Country to Institute Filing Requirement to Preserve Integrity of Foreclosure Process, Press Release dated October 20, 2010 ( emphases added )); [available at http:// www.nycourts.gov/press/pr2010_12.shtml.]
The courts intolerance for “robo-signed” affidavits has been met with similar disdain in consumer debt cases
and by analogy, in no-fault, health care provider cases.
“A similar requirement, mandating verification of plaintiff's ownership of the debt and its amount, may improve the integrity of consumer collection cases ...” American Express Bank v. Tancreto, CV–24043–11/KI [April 17, 2012] ); see also, “The affidavit at hand has the look and feel of a robo-signed' affidavit that was prepared in blank in advance of knowing who would sign the affidavit'.” American Exp. Centurion Bank v. Badalamenti, 30 Misc.3d 1201(A) (Dist Ct, [2010] ) citing American Express Centurion Bank v. Bajek, 29 Misc.3d 1226A, at fn. 2 [Sup Ct Orange County, 2010] ). And “just like in Bajek, the affidavit contains a rubber stamped' opening sentence identifying Ms. Hartje as the affiant, followed by a general description of plaintiff's business record practices and a fill in the blanks' statement of facts” American Exp. Centurion Bank v. Badalamenti, 30 Misc.3d 1201(A) (Dist Ct, [2010] ); and “[p]laintiff accordingly has failed to set forth evidentiary proof in admissible form' respecting the business records that document the amount of defendant's alleged indebtedness” American Exp. Centurion Bank v. Badalamenti, supra, citing Palisades Collection, LLC v. Kedik, 67 AD3d 1329, 1331 (4th Dept, [2009] ).
See, Andrew Carothers, M.D., P.C. v. Geico Indemnity Co., 79 AD3d 864 (2nd Dept, [2010] ) testimony or affidavit of third party biller is insufficient to lay the foundation necessary to establish that the claim form and billing documents are business records; see also Viviane Etienne Medical Care, P.C. v. Country–Wide Ins. Co., 31 Misc.3d 21 (App Term 2nd, 11th & 13th Jud Dists, [2011] ).
While this court is mindful that the “suspicion of robo-signing' does not automatically indicate impropriety,”
it is reason enough to “give this court pause”
See American Express v. Badalamenti, supra, quoting American Express v. Bajek, supra.
to make further inquiry as to the veracity of the allegations of the affidavit.
American Express v. Badalamenti, supra, see also Discover Bank v. Parisi, supra.
INTOLERANCE OF “ROBO–SIGNING” APPLIES TO
HOUSING COURT PROCEEDINGS
Based upon the foregoing, this court holds, that 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.
DETERMINATION / HEARING
SUFFICIENT, CAUSE APPEARING HEREON, it is:
ORDERED, that the instant fourteen (14) matters will appear on the court calendar, on February 27, 2013, Part D, room 550, at 2:15 in the post-noon for a hearing to determine, inter alia, if, Mr. Gazal, a sworn employee of all fourteen (14) petitioners of the eleven (11) different entities, is in fact an “employee” of each such entity he swears under penalties of perjury to be employed by; if Mr. Gazal does, in fact have personal knowledge of the charges and debits made to each of the accounts of each of the fourteen (14) different respondents' and if he can so attest to such facts, he is to identify the basis of his personal knowledge that, as of the relevant dates, each allegation that he previously swore to, in each affidavit, is true, pursuant to penalties of perjury; and it is further,
ORDERED, that the witness, Mr. Gazal, may appear at the hearing along with counsel of his choosing, and with documents to establish that, during the relevant time, he was in fact, an employee of each of the eleven (11) different entities, that he swears “under penalties of perjury” that he is employed by. Such proof may consist of pay-stubs from each of the eleven (11) different entities and/or 2012 tax returns, if already prepared, redacted as to personal information such as salary, social security number and any information not relevant to demonstrating an employee-employer relationship during the relevant time period. Additionally, the witness may appear with any rent ledger that he can authenticate as a business record, kept in the ordinary course of each of the fourteen (14) petitioners' business', which the witness may have relied on, when making his sworn statements, under penalties of perjury. Depending on the credibility this court determines the witness' testimony merits, or upon the witness' default, this matter may be referred to the Office of the District Attorney for appropriate action; and it is further,
ORDERED, that the named respondents in each action, if so inclined, may appear in court at the hearing on February 27, 2013, Part D, room 550, at 2:15 in the post-noon, and if any respondent so chooses, may present testimony and submit proof of payments, if any, each may have remitted to any petitioner during the relevant time period.
The foregoing constitutes the interim decision and order of the court.