Opinion
LT48031/09.
Decided April 2, 2010.
LAZARUS, LAZARUS WINSTON, Attorneys for Petitioner, Bronx, New York.
DEPARTMENT OF CONSUMER AFFAIRS, Legal Division, New York, New York.
JANICE SELDEN, Respondent Pro Se, Bronx, New York.
HAROLD FORD KEVIN ROCK, Respondents Pro Se, Bronx, New York.
The above referenced summary non-payment proceedings were commenced by RIVERBAY CORPORATION (Petitioner) and in each proceeding, at some point, Petitioner applied for a default judgment against one or more named respondents, and submitted in support of said application an affidavit from a licensed process server in support of its application. On March 1st, 2010, it came to the Court's attention that the affidavit submitted in support of a default under Index No. 62417/09, appeared to be false. The Court, pursuant to a written decision and order, set the matter down for a hearing on March 24, 2010 to determine whether the affidavit was false, and to determine whether sanctions should be assessed against Petitioner or its client.
Between March 1, 2010 and March 24, 2010, similar issues arose in the five other cases referenced above. All six proceedings were scheduled for a hearing on the same date and time. In all six proceedings, the same process server, Phil Jean Baptiste, License No 1331658, had submitted an affidavit stating that he had visited the subject premises, personally spoken with the respondent against whom the default judgment was sought, and been advised, by the respondent, that said person was neither in the military, nor dependent upon anyone in the military. To the extent that all six motions address whether the affidavits submitted were false, and whether sanctions are appropriate, all six motions are consolidated for disposition herein.
Riverbay Corporation v. Selden, Index No 48031/09
This non-payment proceeding was commenced prior to September 2009. Janice Selden, had filed an answer on September 30, 2009, which alleged that the lease for the subject premises had not been transferred to her from her exhusband, and an initial return date was set for October 7, 2009. The respondents failed to appear on said date, but later that day Ms. Selden obtained an order to show cause to vacate the default returnable October 23, 2009. On October 23, 2009, the parties agreed to vacate the default, and the proceeding was adjourned on several additional occasions. On January 28, 2010, Ms. Selden and Petitioner entered into a stipulation of settlement. John Selden never answered or appeared.
On or about February 22, 2010, Jean Phil Baptiste executed an affidavit in support of Petitioner's application for a default judgment against John Selden. The affidavit asserted that Mr. Baptiste had gone to the Subject Premises on February 20, 2010, and had spoken with John Selden at 10:22 am, and that Mr. Selden confirmed that he was not in the military nor dependent on anyone in the military.
On March 9, 2010, Janice Selden, appeared before the Court in support of an ex parte application for the Court to sign an Order to Show Cause staying the eviction. In support of her application, Ms. Selden stated that John Selden was her ex-husband, that he had not been in the subject premises since 1988, and that she had been legally divorced from him since 1997.
On March 24, 2010, Ms. Selden appeared at the hearing, and testified to these same facts. Ms. Selden testified that the affidavit from Mr. Baptiste saying he had visited her apartment on February 20, 2010 and spoken with, John Selden, her ex-husband was false. Ms. Selden testified that the locks to the apartment had been changed after her divorce, and that her ex-husband had no access to the subject premises. Ms. Selden was cross-examined by Petitioner's counsel. The Court found that Ms. Selden was a credible witness and her testimony was not contradicted by Mr. Baptiste, nor was any explanation offered regarding the statements made in his affidavit.
Riverbay Corp. v. Harold FordIndex No. 54597/09
In this non-payment proceeding Petitioner obtained a judgment on default and a warrant of eviction issued on February 11, 2010. In support of the default judgment, Mr. Baptiste submitted an affidavit dated December 30, 2009, stating that on December 26, 2009, he had gone to the subject premises and spoken with Harold Ford at 12:17 pm., and that Mr. Ford had confirmed that he was not in the military, nor dependent upon anyone in the military.
On March 5, 2010, Kevin Rock appeared before the court in support of an ex parte application for an order to show cause. Mr. Rock stated that he was an occupant of the subject premises. Mr. Rock stated that Harold Ford had been living in Florida for the past year, and that he had subleased the premises from Mr. Ford, pursuant to a written lease agreement, dated April 2009. Mr. Rock stated that Mr. Ford was not in the apartment on December 26, 2009, contrary to the allegation made by Mr. Baptiste in his affidavit.
At th hearing on March 24, 2010, both Harold Ford and Kevin Rock testified. Harold Ford testified that he is currently residing in Boynton Beach Florida, and that he was certain that he was not in the subject premises on December 26, 2009, because it was the day after Christmas and he had spent the holidays with his family. Mr. Rock testified that he was also not in the apartment on December 26, 2009, because he was working, but that his brother, Elton Barry may have been present. The court found the testimony of both witnesses to be credible.
Riverbay Corp. v. Terrence Gibel Index No. 54660/09
In this nonpayment proceeding, Petitioner applied for and received a default judgment, and a warrant of eviction issued on February 11, 2010. In support of the default application, Petitioner had submitted an affidavit from Mr. Baptiste, dated December 30, 2009, stating that on December 26, 2009, Mr. Baptiste had gone to the subject premises, and spoken with Terrence Gibel at 11:09 am, and that Mr. Gibel had confirmed that he was neither in the military nor dependent upon anyone in the military.
On March 9, 2010, Mr. Gibel appeared in court in support of an application for an order to show cause. He stated that he had failed to answer the petition because he had been out of state on business. At the hearing on March 24, 2010, Mr. Gibel testified that he had left New York on the Tuesday before Thanksgiving and remained in the state of Georgia until December 29, 2009. Mr. Gibel stated that Mr. Baptiste's affidavit was false. The Court found Mr. Gibel to be a credible witness.
Riverbay Corp. v. Richard Anderson Index No. 54680/09
In this nonpayment proceeding, Petitioner had applied for and received a default judgment and the warrant of eviction had issued on February 11, 2010. In support of the application for a default, Petitioner had submitted an affidavit from Mr. Baptiste that stated on December 26, 2009, Mr. Baptiste had gone to the subject premises, and spoken with Richard Anderson at 11:45 am, and that Mr. Anderson confirmed that he was neither in the military, nor dependent upon anyone in the military.
On March 8, 2010, Lauren Cross appeared in court in support of an order to show cause application. Ms. Cross stated that she was Mr. Anderson's girlfriend, and that Mr. Anderson had been away for about a week. At the hearing on March 24, 2010, Ms. Cross appeared but Mr. Anderson did not. Ms. Cross stated that she had been living in the subject premises for four years, but was neither named nor served with the papers in this case. Ms. Cross stated that she was on the income affidavits for the subject premises. Ms. Cross testified that Mr. Anderson had been in Jamaica from the end of February to March 2, 2010. Ms. Cross testified that she could not recall Mr. Anderson's whereabouts on December 26, 2009, and that she had spent the morning of December 26, 2009, shopping. Ms. Cross testified that Mr. Anderson had never told her of someone coming to the apartment to inquiry about his military status.
Riverbay Corp. v. Ford Index No 62417/09
This proceeding was commenced prior to December 2009. Respondent Vanessa Jones, s/h/a Vanessa Ford, filed an answer and the case was initially returnable on December 16, 2009. On December 16, 2009, Vanessa Jones entered into a stipulation settling the proceeding with Petitioner. As noted in the Court's March 1, 2010 decision, Petitioner had sought to include in the stipulation representations by Ms. Jones regarding the non-military status of Edward Ford. However, during the course of the allocution of the stipulation, Ms. Jones stated that Edward Ford was her ex-husband, that they were legally divorced, and that he had not resided in the subject premises since 1998. Ms. Jones further stated she was not aware of her ex-husband's whereabouts. Based on her statements, the Court struck the representation in the stipulation regarding Edward Jones and directed Petitioner to apply for a default judgment.
Petitioner's application for a default judgment was supported by an affidavit from Mr. Baptiste stating that on December 30, 2009, he went to the subject premises and spoke with Edward Ford at 7:01 pm, and that Mr. Ford advised Mr. Baptiste that he was neither in the military, nor dependent upon anyone in the military.
At the hearing on March 24, 2010, Ms. Jones testified that the statements in Mr. Baptistse's affidavit were completely false. Ms. Jones testified that Edward Ford had not been in the subject premises since 1996 or 1997, that the locks to the apartment had been changed after their divorce, and that she had absolutely no communication or contact with her ex-husband. Ms. Jones testified on cross-examination that she lived alone in the subject premises, and that no male adults were in the subject premises on the date indicated. At the hearing, Mr. Baptiste testified that he had gone to the subject premises on December 30, 2009 at 7:01 pm. He offered into evidence a sheet of paper, which he testified had written notes he made at the time of said visit (Exhibit 2). The notes stated that Mr. Baptiste had "spoke through door" to Ed Ford on that date. Mr. Baptiste offered no explanation as to why the affidavit did not note that the person responding did not open the door, but he testified that the person responding was a male individual who identified himself as Edward Ford.
Riverbay Corp. v. Ivet Guzman Index No. 62435/09
This proceeding was commenced on or about November 2009. Pierre Guzman filed an answer on November 18, 2009, and the proceeding was initially returnable November 24, 2009.
In this proceeding Mr. Guzman made several conflicting statements about his mother's failure to appear in court. On November 18, 2009, Mr. Guzman filed an affidavit of unavailability stating he could not appear in court on the initial return date of November 24, 2009, because of an out of town funeral. However, he did appear in court on November 24, 2009. He signed a stipulation saying his mother was in the hospital and the proceeding was adjourned to December 15, 2009 for her to appear.
On December 15, 2009, respondent failed to appear and Mr. Guzman appeared and said his mother was home, and was ill. He stated she could not leave the house in cold weather. The court noted the temperature on said date was approximately fifty degrees, and asked Mr. Guzman if he had any supporting documentation regarding his mother's illness. He stated he did not. However, he produced a letter dated December 14, 2009, purportedly signed by respondent and her son, that she could not appear in court due to illness. Mr. Guzman stated his mother was fifty-six years old.
On December 15, 2009, Mr. Guzman and the Petitioner entered into a stipulation of settlement, Mr. Guzman was added to the proceeding as a respondent-undertenant, and a default was entered against respondent, Ivet Guzman who did not appear. In support of its application for a default judgment against Ivet Guzman, Petitioner submitted an affidavit from Mr. Baptiste, which stated he went to the subject premises on January 20, 2010, and spoke with Ivet Guzman at 7:25pm, who stated she was neither in the military nor dependent upon anybody in the military. Mr. Guzman returned to court on February 25, 2010, to file an order to show cause which was returnable on March 11, 2010.
On March 11, 2010, the parties appeared before the court to argue the motion. Petitioner asked that the motion be denied, based on Ivet Guzman's failure to ever have appeared in this proceeding, and Mr. Guzman's default on the stipulation dated December 15, 2009. Mr. Guzman stated that his mother was out of town and was staying with his aunt.
The court noted that Mr. Guzman's explanations as to respondent's whereabouts seemed contradictory, and the Court was no longer willing to accept Mr. Guzman's representations as to his mother's whereabouts. The court stated it would adjourn the proceeding for respondent to appear, and the parties agreed to an adjourn date of March 24th, 2010 at 2:15pm. Mr. Guzman stated that Ivet Guzman had left for Massachusetts in early December and was still there. At the hearing on March 24, 2010, Respondent did not appear. An attorney did file a notice of appearance only on behalf of Mr. Guzman, not respondent, and Mr. Guzman testified at the hearing. Mr. Guzman testified that his mother left for Massachusetts in early December and was still there, and that no one lived in the subject premises, other than his mother and himself. Mr. Guzman testified that he had a girlfriend, who occasionally spent time at the apartment, but that no females were in the apartment during the month of January 2010.
The Court does not believe that Mr. Guzman was truthful about the representations he made about Ivet Guzman's whereabouts from the beginning of this proceeding. Similarly, the Court questions whether the document Mr. Guzman filed with the Court dated December 14, 2009, was actually signed by Ivet Guzman. The Court believes its possible that Mr. Guzman signed both his name and his mother's name.
However, to the extent that the Court find issues with Mr. Guzman's credibility, the Court suspects that Ivet Guzman has been completely absent from the subject premises for sometime. These issues do not in any manner support Mr. Baptiste's allegation that he found Ivet Guzman at the subject premises, as he alleged in his affidavit.
Testimony of Jean Phil Baptiste
Mr. Baptiste was called as a witness by Petitioner. Mr. Baptiste had been excluded from the courtroom during the testimony of the previous witnesses. Mr. Baptiste produced a copy of his license (Exhibit 1). The license had expired on March 28, 2010, and had not been renewed. The license was issued on September 8, 2009. Mr. Baptiste testified that he worked as an independent contractor for the Alvin Engle Agency located at 333 West 39th Street.
Mr. Baptiste only offered specific testimony about the non-military investigation concerning Edward Ford. Petitioner's counsel had acknowledged to the court it had not advised Mr. Baptiste of the other proceedings which were to be included in the hearing on the issue of the non-military investigations.
Mr. Baptiste stated he could take no steps to confirm the identity of the person giving him information, and that he keeps no log book entries for the nonmilitary investigations because its not required by law. Mr. Baptiste stated he has been a process server since September 2009. No explanation was offered by Mr. Baptiste as to why the affidavits in these proceedings were all a standard form lacking any detail of what actually occurred at the time of the alleged investigation. For example no physical descriptions are included of the individuals allegedly spoken to, nor are any descriptions included of the locations actually visited.
Testimony of Irvin Gartenstein
Mr. Gartenstein was also called by Petitioner as a witness. Mr. Gartenstein is the director of Arrow Process Servers dba the Alvin Engle Agency. He testified that he employs between 15-20 process servers who are subcontractors. Mr. Gartenstein testified that when he receives a letter from a client requesting a non-military investigation, he employs a process server for the investigation. Mr. Gartenstein testified that once he was advised of an issue with Mr. Baptiste's affidavits, he ceased employing Mr. Baptiste pending the outcome of the hearing, and that he had never had any prior complaints about improprieties regarding Mr. Baptiste's work.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court finds based on a preponderance of the credible evidence at the hearing that Mr. Baptiste filed false affidavits in the following proceedings Index No 62417/09, regarding a conversation he alleged to have with Edward Ford, Index No 48031/09 regarding a conversation he allegedly had with John Selden, Index No. 54597/09 regarding a conversation he allegedly had with Harold Ford, and Index No. 54660/09 regarding a conversation he allegedly had with Mr. Gibel.
Additionally, the Court finds questionable the veracity of Mr. Baptiste's statements in the affidavits regarding Ivet Guzman under Index No 62435/09 and the affidavit submitted regarding Richard Anderson under Index No 54680/09. However, Pierre Guzman also made contradictory statements about the whereabouts of Ms. Guzman, and therefore is not an entirely credible witness, and Lauren Cross could not testify with certainty that Richard Anderson was not in the subject premises on the date in question. Therefore, in those two proceedings the court can not find that a preponderance of credible evidence establishes that Mr. Baptiste filed false affidavits.
A copy of this decision shall be forwarded to the Department of Consumer Affairs for appropriate action with reagrds to Mr. Baptiste.
The Court is satisfied that Petitioner's counsel and Petitioner upon learning of the irregularities associated with Mr. Baptiste's affidavits ceased to rely upon him in further proceedings. However, the Court is troubled by the fact that counsel had not prepared Mr. Baptiste to testify specifically on any matter other than Index No. 62417/09. The Court finds disingenuous counsel's claimed lack of notification. Specifically, counsel was aware that the proceedings all of which had orders to show cause returnable the same afternoon, were on the court's calendar. Additionally, the court had personally notified two attorneys in counsel's office that the matters involved allegedly false affidavits filed by Mr. Baptiste.
Finally, on March 5th, 2010 the court signed an order to show cause on Index No 54597/09 which was served on counsel's office by 3/8/09 and indicated on the face in oversized handwritten notations by the court " to be heard w/ Index No. 62417/09 2nd alleged false affidavit filed by Petitioner's agent movant states affidavit of investigation is false and Resp was not in premises on 12/26/10". Similarly on March 9, 2010, the Court signed an order to show cause under Index No 54660/09 which it directed be served by March 10, 2010, which also stated in bold red handwriting on the face of the order "Alleges non-mil is false, 4th such claim made regarding Riverbay this process server." Additionally the court had a conference with an attorney from counsel's office and Pierre Guzman in Index No 62435/09, where it was agreed that the order to show cause originally returnable March 11, 2010, would be adjourned to the hearing date on the afternoon of the 24th of March because the same issue and process server were concerned.
Counsel certainly had notice that more than one proceeding was pending that afternoon where the issue of the false military affidavits executed by Mr. Baptiste, on behalf of Petitioner, would be addressed by the court, yet inexplicably did not prepare Mr. Baptiste to address anything specifically other than the first proceeding.
Notwithstanding the foregoing, the Court does not find, that sanctions are warranted against Petitioner or its counsel, and is satisfied that by no longer employing Mr. Baptiste for this purpose after the irregularities were brought to their attention they took sufficient action. There is no evidence ion the record to suggest that petitioner knew that Mr. Baptiste was filing false affidavits before the Court brought the issue to their attention.
The Court notes that such abuses could be prevented by having the investigator use a more detailed affidavit, which addresses the particulars of the actual investigation conducted, rather than a standard generic form. For example an affidavit that includes at a minimum some details of the physical description of the person spoken to, and the physical description of the location at which the investigation was allegedly conducted, would guard against abuse. The Court notes that counsel is responsible for taking reasonable measures to insure that false affidavits are not being used in support of its request for default judgments. Perjured affidavits will not be tolerated by the court and may constitute contempt Central Budget Corp. v. Knox 62 Misc 2d 66 (1969); NYCHA v. Smithson 119 Misc 2d 721 (1983).
This constitutes the decision and order of this court.