Opinion
2013-03-20
2132 PRESIDENTIAL ASSETS, LLC, Petitioner, v. Yamilka CARRASQUILLO, Respondent(s). Anderson Housing Associates, Petitioner, v. Oumarov Traore, Respondent(s). BP Assets 46, LLC., Petitioner, v. Taisha Estrada, Respondent(s). BP Assets 46, LLC., Petitioner, v. Dennis Ramzan, Respondent(s). BP Assets 46, LLC., Petitioner, v. Benjamin Cabrera, Respondent(s). BP Assets 46, LLC., Petitioner, v. Pedro Soto, Respondent(s). BP Assets 46, LLC., Petitioner, v. Bernando Cruz, Respondent(s). BP Assets 62, LLC., Petitioner, v. Andres Santiago, Respondent(s). BRG Godwin, LLC., Petitioner, v. Jose Luperon, Respondent(s). Sovereign Realty, Assoc., Petitioner, v. Sambala Gokou, Respondent(s). Sovereign Realty, Assoc., Petitioner, v. Bintou Waggeh, Respondent(s). Sovereign Realty, Assoc., Petitioner, v. Carmen Rosado, Respondent(s). University Residence Inc. In Receivership, Petitioner, v. Milagros Mendez, Respondent(s).
Gutman, Mintz, Baker & Sonnenfeldt, New Hyde Park, for petitioners.
, J.
CONSOLIDATION
The above captioned matters, submitted to this court for the entry of ex parte default judgments and issuances of warrants of eviction, are consolidated for purposes of this decision. Common factors in each of these thirteen (13) consolidated cases include: each petitioner is represented by the same law firm; the affidavits submitted in support of the instant applications read similarly and are all insufficient as a matter of law to support the entry of a default judgment. Additionally, many of the affidavits are signed by the same individual and notarized by the same Notary Public. Additionally, in nine (9) of the thirteen (13) proceedings, a supplemental affidavit is submitted, and seven (7) of the nine (9) “supplemental” affidavits are signed by the same individual and notarized by the same Notary Public. Accordingly, this court consolidates the matters and issues the following Order.
AFFIDAVITS SUBMITTED
As they relate to the purported rent arrears, each affidavit, drafted in all caps (except for the blanks that are filled in) is titled “ AFFIDAVIT OF NON–MILITARY INVESTIGATION AND RENT OWED” ( caps in original ) and reads as follows:
“____[______________]_____ being duly sworn, deposes and says:
I am employed at __[________________]......
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), 2012 WL 6808455 (Civ. Ct. Kings County, [2012] )referencing, generally Phillips v. Girdich, 408 F.3d 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 thirteen (13) initial 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 have personal knowledge of the tenant's rent records. Tenant owes $ [ ] through the petition dated [ ]. In addition to subsequent rent.
Sworn to before me
[____] day of [________] 2013
______ /s/[ ] ______ /s/ [ ] ____
Notary Public Signature of Investigator”
Each of the eleven (11) “supplemental” affidavits (also drafted in all capital letters) entitled “AFFIDAVIT OF RENT DUE AND OWING,” read as follows:
“______________ being duly sworn deposes and says:
1. I am the agent for the landlord in the proceeding.
2. I have personal knowledge of the tenant's rent records.
3. The tenant currently owes $[ ] through the petition in addition to subsequent rent.
Wherefore, your deponent prays that relief requested herein be granted.
Sworn to before me
[____] day of [______] 2013
____ /s/ [ ] ______ /s/[ ] ____
Notary”
INFIRMITIES OF THE AFFIDAVITS
Troubling to this court is that each affidavit fails to substantiate the basis for the affiants “personal knowledge of the tenants rent records”.
Beyond identifying the affiant by a job title, and an employee of petitioner, there are no details of the affiant's actual responsibilities. The affiant does not state that it is his or her responsibility to maintain the books and records of each petitioner,
See, Affidavits of Non Military Status and Rent Owed at unnumbered paragraph and Affidavit of Rent Due and Owing at ¶ 2.
nor does any affiant state that it is his or her responsibility to maintain any of the petitioners' records, nor does any affiant authenticate any record as a true and accurate document, kept in the ordinary course of petitioners' business'.
“[T]he court found that the affidavit ... 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) ... and contains conclusory allegations regarding his personal knowledge,” GBI Acupuncture, P.C. v. Esurance Ins. Co., 38 Misc.3d 1208(A), 2012 WL 6808455 [Civ. Ct. Kings County, 2012]citing Barraillier v. City of New York, 12 A.D.3d 168, 784 N.Y.S.2d 55 [1st Dept., 2004].
See Civil Practice Law and Rules (“CPLR”) § 4518.
Additionally, there is no allegation in any of the affidavits that the affiant actually has reviewed the petition, and there is no allegation that the statements are sworn to under penalties of perjury. As a result, the affidavits fail to support the conclusion that any respondent defaulted in the payment of the sums demanded in the petition.
SUSPICION OF “ROBO–SIGNING”
Affidavits which are identical to numerous other affidavits, which assert allegations without any factual support, create the suspicion of having been “robo-signed”
, rather than executed 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, 910 N.Y.S.2d 857 (Sup. Ct. N.Y. County, [2010] ).
The courts have consistently demonstrated an intolerance for “robo-signing.” The practice has been specifically rejected in residential foreclosure cases,
Administrative Order of the Chief Administrative Judge, AO/548/10, mandating a specific filing requirement addressed to remedy this flawed practice, available at http:// www. nycourts. gov/ press/ pr 2010_(1)6 d 12. shtml; see also, Onewest Bank, F.S.B. v. Drayton, 29 Misc.3d 1021, 910 N.Y.S.2d 857 (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.”
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), 2010 WL 5186698 (Dist. Ct., [2010]citing American Express Centurion Bank v. Bajek, 29 Misc.3d 1226(A), at fn. 2, 2010 WL 4749833 [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), 958 N.Y.S.2d 644 (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 A.D.3d 1329, 1331, 890 N.Y.S.2d 230 (4th Dept., [2009] ).
and housing court non-payment eviction proceedings.
Andrew Carothers, M.D., P.C. v. Geico Indemnity Co., 79 A.D.3d 864, 914 N.Y.S.2d 199 (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, 919 N.Y.S.2d 759 (App. Term 2nd, 11th & 13th Jud. Dists., [2011] ).
Intervale Ave Assoc v. Donlad, 38 Misc.3d 1221(A), 2013 N.Y. Slip Op. 50210(U), 2013 WL 540153 (Civil Court, Bronx County, [2013] ) “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 ( emphasis in original ).
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”
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, Nassau Dist. Ct., June 21, 2012, Ciaffa, J., index No. CV–025361–10.
“ROBO–SIGNING” INTOLERABLE IN HOUSING COURT PROCEEDINGS
Based upon the foregoing, this court maintains, as it has previously held, that the practice of “robo-signing” is as intolerable in Residential Housing Court eviction proceedings, as the practice has been found to be in Residential Foreclosure actions.
See supra, fn. 8.
DETERMINATION Accordingly, each application for a default judgment in the consolidated cases is denied with leave to renew upon a proper submission. Such proper submission shall include an affidavit of merit/default stating the basis for the affiants “personal knowledge”. Any conclusions asserted in any affidavit must be supported by facts, such as, the review of books and/or other business records of each petitioner and each such document shall be authenticated as a business record.
STANDARD FOR RE–SUBMISSION OF SIMILAR EX PARTE APPLICATIONS
As this court denies the instant applications with leave to renew on proper papers, counsel is cautioned that any re-submission must comply with the directives of this decision and applicable procedural law.
In consolidating, then denying similar apparently “robo-signed” applications, unrelated to the instant matters, this court scheduled a hearing to determine the actual basis for the affiant's “personal knowledge”. At the hearing, this court was informed, that upon learning from the city marshal that the default warrant request was rejected by the court because of a problem with the affidavit, common practice in this county (Bronx County) is for the petitioner to subsequently submit a new default warrant application containing an identical affidavit sworn to at a later date, rather then requisitioning the court file to see the precise reason for the court's rejection of the application and submit an affidavit curing such deficiencies.
This court holds that the common practice of resubmitting applications which are supported by previously insufficient affidavits, which fail to correct the prior defects, is contrary to the law, against public policy and unacceptable to this court. This practice merely overburdens an already overburdened court system
“The Bronx handles more than 85,000 housing court cases annually, more than any other borough, making it New York City's epicenter for disputes between landlords and tenants.” (Winnie Hu, Report Says Bronx Rent Disputes Favor Landlords, N.Y. Times, March 14, 2013, § NY Region, available at: http:// www. nytimes. com/ 2013/ 03/ 15/ nyregion/ report- says- bronx- rentdisputes- favor- landlords. html?_(1)6 dr= 0).
The law
requires that the re-submission of any application, not submitted on notice, contain an affidavit stating the result of any prior application for similar relief, and specify any new facts, that were not previously demonstrated. Specifically, the CPLR requires that:
“[a]n ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown” CPLR § 2217(b).
Accordingly, any subsequent application for the same relief as sought herein, must comply with the requirements of CPLR § 2217(b) and the directives of this Order.
ORDER
Based upon the foregoing, the instant applications are denied with leave to renew on proper submissions, in compliance with the directives of this Order.
Any named respondent, if so inclined, may appear in court and file any appropriate document with the proper clerk.
The foregoing constitutes the Decision and Order of the court.