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1081 Flatbush Avenue, LLC v. Waheeda Jadoo Doing Business As J & D Image Ii

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 23, 2011

1081 FLATBUSH AVENUE, LLC,
APPELLANT,
v.
WAHEEDA JADOO DOING BUSINESS AS J & D IMAGE II,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), dated April 13, 2011.

1081 Flatbush Ave., LLC v Jadoo

Decided on December 23, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied landlord's motion to, in effect, vacate a prior order of the same court dated March 15, 2011 and for the entry of a default final judgment in favor of landlord.

ORDERED that the order is modified by providing that the denial of landlord's motion for the entry of a default final judgment is without prejudice to renewal upon proper papers in accordance with this decision; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings.

In this commercial nonpayment summary proceeding to recover additional rent allegedly owed for water and sewer bills pursuant to an oral month-to-month agreement, landlord served tenant with a notice of petition and petition, verified by its attorney, on February 18, 2011. Tenant failed to answer or appear. On March 2, 2011, landlord applied for the entry of a default final judgment in its favor. On March 15, 2011, the Civil Court denied the application, finding that landlord had failed to attach copies of its certified mail receipts to the petition, and requesting that landlord submit "a copy of the lease indicating whether oral rent demand is acceptable." Landlord subsequently moved to, in effect, vacate the prior order and for the entry of a default final judgment in its favor. By order dated April 13, 2011, the Civil Court denied the motion, stating that landlord could satisfy the request for the lease by submitting an affidavit by landlord.

"[W]hile a petition verified by an attorney is sufficient to satisfy RPAPL 741, the entry of a default final judgment must be supported by a petition or an affidavit sworn to on personal knowledge" (Sella Props. v DeLeon, 25 Misc 3d 85 [App Term, 2d, 11th & 13th Jud Dists 2009]). As landlord failed to submit an affidavit sworn to on personal knowledge in support of its application for the entry of a default final judgment awarding it the additional rent allegedly owed pursuant to the oral month-to-month agreement, the application to enter a default final judgment was properly denied, albeit on grounds other than those cited by the court. It is noted that an oral rent demand is permissible under RPAPL 711. It is further noted that RPAPL 735 (2) does not require that the proof of service, which must be filed in order to commence a summary proceeding where service is made by the permissible alternatives to personal service, include the certified mail receipts.

Accordingly, the order is modified by providing that the denial of landlord's application for a default judgment is without prejudice to renewal upon the submission of an affidavit sworn to on personal knowledge attesting to landlord's prima facie case.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 23, 2011

20111223

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