Opinion
No. LT–006429–11.
2013-01-11
WELLS FARGO, N.A., as trustee, Petitioner(s) v. Joseph DiFRANCO, Respondent(s).
Rosicki, Rosicki & Associates, P.C., Plainview, Attorney for Petitioner. George M. Gavalas, P.C., Mineola, Attorney for Respondent.
Rosicki, Rosicki & Associates, P.C., Plainview, Attorney for Petitioner. George M. Gavalas, P.C., Mineola, Attorney for Respondent.
SCOTT FAIRGRIEVE, J.
The petitioner, Wells Fargo Bank, N.A., commenced this holdover proceeding seeking a final judgment of eviction and awarding it possession of the premises located at 537 Livingston Street, Westbury, N.Y. 11590 from the respondents, Joseph P. Di Franco, John Doe and Jane Doe (hereinafter “the respondent”). A foreclosure action was previously brought against the respondent in the Nassau County Supreme Court where a judgment of foreclosure and sale was granted. The petitioner acquired title to the premises, pursuant to a referee's deed dated May 31, 2011.
The respondent now moves for an order dismissing the petition as fatally and procedurally defective in several respects. The first branch of the respondent's motion argues this action was commenced prematurely because the petition was filed before the respondent's occupancy had expired. The respondent argues that his occupancy did not expire until November 11, 2011 because the Ten Day Notice to Quit was mailed on October 27, 2011 and the CPLR requires a five day “lag time” for mailing. The petition was filed with the Court on November 10, 2011.
In 170 E. 77th 1 LLC v. Berenson, 12 Misc.3d 1017 [Civ Ct, N.Y. County 2006], the respondent cited Matter of ATM One, LLC v. Landaverde, 2 NY3d 472 [2004], to support the argument that the failure to add five days to the mailing of the termination notice deemed it defective, requiring dismissal. The Berenson Court stated that “[in Landaverde ] the Court of Appeals held that owners who elect to serve a notice to cure by mail must compute the date certain by adding five days to the 10 day minimum cure period. Lower courts are divided on whether the rule set forth in Landaverde is applicable to other types of notices.” The Berenson Court did not extend the Landaverde rule to a termination notice for an unregulated apartment where mailing was part of conspicuous place service.
In Skyview Holdings, LLC v. Cunningham, 13 Misc.3d 102 [App Term, 1st Dept 2006], the Court declined to adopt a blanket rule requiring landlords to add five days to statutory notice periods upon the mailing of any and all notices required by the rent regulations. The Cunningham Court stated that “the Landaverde rule was meant to be confined specifically and narrowly to the 10 day cure notice there involved.”
In the instant matter, the Court agrees that the Landaverde rule should not be extended to a Ten Day Notice to Quit. The Court would note that although the respondent challenged the sufficiency of the mailing, the respondent did not deny receiving the Notice to Quit which was affixed to the premises on October 26, 2011 As such, the respondent's motion to dismiss based on the failure to include an additional five days on the Ten Day Notice to Quit is denied. See also Brooklyn Home for Aged People Housing Development Fund Co. v. Derrick Selby, 32 Misc.3d 130(A), 932 N.Y.S.2d 759 (App Term 2nd, 11th & 13th Jud Dists 2011)
The second branch of the respondent's motion argues the petition is defective because it avers that the petitioner obtained title pursuant to a referee's deed dated May 31, 2011, but the referee's deed was notarized on July 25, 2011. However, in “the absence of evidence to the contrary, the date a deed was signed is presumed to be the date of delivery [ citations omitted ]” (Brookhaven v. Dinos, 76 A.D.2d 555 [2d Dept 1980] ). “A deed is presumed to have been delivered at the time of its date, notwithstanding it may be acknowledged afterwards” (Ewers v. Smith, 98 AD 289 [2d Dept 1904] ). The respondent did not submit any evidence to rebut this presumption and, as such, the respondent's motion to dismiss in this regard is denied.
The third branch of the respondent's motion argues the petition is defective because the 10 Day Notice to Quit claims to be signed by the petitioner, Wells Fargo, but nowhere in the actual notice is it disclosed that OCWEN is serving the notice and that its representatives signed it with a power of attorney. The 10 Day Notice to Quit served on the respondent was signed by Clara Taborda, claim manager. The 10 Day Notice to Quit also advises that any questions concerning the notice should be directed to the petitioner's attorneys. A limited power of attorney was signed by Ms. Taborda, on behalf of Ocwen Loan Servicing, LLC, appointing petitioner's counsel as its true and lawful attorney-in-fact. A limited power of attorney was also executed by the petitioner, Wells Fargo Bank, N.A., appointing Ocwen as the servicer to the trust, which included the mortgage for the subject premises. In opposition, the petitioner submitted a Certificate of Authority identifying Ms. Taborda, as contract manager for Ocwen, having authority to sign on behalf of Ocwen. As such, Ms. Taborda had proper authority to sign the 10 Day Notice to Quit and the respondent was sufficiently notified of such authority.
The fourth branch of the respondent's motion argues the petition is defective because the notary on the power of attorney attached to the petition does not comply with statutory requirements in that it fails to set forth the state and county where the notarization took place. However, the respondent failed to provide any legal authority to support their argument. The Court would note that the notary stamp on the limited power of attorney, in which Wells Fargo appointed Ocwen as the servicer to the trust, shows Howard County, Maryland, to be the county and state where the notary has their commission. The notary stamp on the other limited power of attorney, in which Ocwen appointed petitioner's counsel as its true and lawful attorney-in-fact, sets forth Florida as being the state where the notary has their commission, without setting forth the county. However, the Court does not find this omission would render the petition defective. As such, this branch of the respondent's motion is denied.
The fifth branch of the respondent's motion argues the petition is defective because the petition was verified by the attorney but not signed. However, this argument is without merit as the verification was made by the petitioner's attorney, pursuant to CPLR 3020(d).
Accordingly, the respondent's motion is denied in all respects.
This case is set down for conference on February 5, 2013 at 9:30 a.m.
So Ordered: