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308 Hull LLC v. Castellani

Civil Court of City of New York, Bronx

May 22, 2013

308 HULL LLC, Petitioner,
v.
Michael CASTELLANI, and Barbara Castellani, Respondent(s). No. L & T 71625/2012.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Heiberger & Associates, P.C., for Petitioner.

Respondents failed to appear.

SUSAN AVERY, J.

In this summary holdover proceeding, the respondents failed to appear, and the matter proceeded to inquest on February 11, 2013. The inquest was continued on March 5, 2013 for further testimony and the submission of documents, which were admitted into evidence. The basis of the proceeding, as stated in the notice to cure, and referenced in the notice of termination and the verified petition, was the allegation by the petitioner that the respondents failed to provide petitioner access to the premises, on three (3) specified dates and times, which " is a threat to [respondents] and other residents of the subject building." [1]

PRIOR ORDER

At the close of the inquest, this court reserved decision. On March 6, 2013, this court dismissed the proceeding and endorsed the court file accordingly. Thereafter, counsel for the petitioner stated that it could not appeal this court's decision as endorsed on the file, and requested a more formal decision from this court for appellate purposes. This court then issued a Decision/Order dated March 6, 2013, indicating that the case was dismissed after inquest, as the court found that the letters/notices to the respondent(s) were insufficient to support the instant proceeding. This court also found that petitioner failed to provide a certificate of eviction for this apartment which is subject to the City Rent Law (rent control, see petition at ¶ 6).

Petitioner thereafter moved to " reargue" this courts March 6, 2013 decision, which this court denied as premature, but to address petitioner's post trial/inquest arguments, this court issues the following Amended Decision/Order to expound on this court's prior determination.

SCHEDULING LETTERS

Submitted into evidence at the inquest were three (3) letters, addressed only to one (1) named respondent, Mr. Michael Castellani, from petitioner, attempting to schedule access to respondent's apartment.[2] For the reasons stated below, this court finds each letter, legally insufficient.

LACK OF PROOF OF SERVICE

To demonstrate service of the " scheduling letters," at inquest, the petitioner submitted a document entitled " AFFIDAVIT " ( emphasis in original ).[3] This document reads as follows:

" On March 27, 2012, April 5, 2012 and April 23, 2012, Ms Gina Stallone physically brought three (3) letters to the Post Office to be mailed Certificate of Mailing for the following address: 3291 Hull Avenue Apt. 55, Bronx, N.Y. 10467."
The document is signed by " Gina Stallone" and notarized on March 4, 2013 (nearly a year after the claimed mailings), and is accompanied by a copy of each subject " scheduling letter" followed by a post office receipt.

To demonstrate proper service by mail, the affidavit of service must be sworn to or affirmed under penalties of perjury. It must state that the item claimed to have been served, was enclosed in a properly addressed and first class post-paid, wrapper, which was personally deposited by the affiant in an official depository under the exclusive care and custody of the United States Postal Service within the state" (CPLR § 2103[f][1] ).[4]

The affidavit submitted in the case at bar, fails to recite that it is sworn to under penalties of perjury, it fails to state that the affiant personally placed each letter in a first class post paid wrapper and it fails to state that the affiant personally deposited each properly addressed, first class post paid, wrapper, in an ...


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