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Parkash v. Almonte

Civil Court of the City of New York, Bronx County

June 18, 2013

Ved Parkash, Petitioner,
v.
Rafael L Almonte, and MARICELA NIVAR, Respondent(s). VED PARKASH, Petitioner, ARNALDO RODRIGUEZ, Respondent(s). VED PARKASH, Petitioner, ANGEL NOBOA TEJEDA, Respondent(s). VED PARKASH, Petitioner, ROSA M. RIVERA, Respondent(s). PARKASH 180 LLC, Petitioner, JOSEPH MARTE, and YOKAIRA MARTE, Respondent(s). PARKASH 180 LLC, Petitioner, MERCEDES E. ROLLERI, Respondent(s). PARKASH 1718 LLC, Petitioner, DAISY BERRIDO, Respondent(s). PARKASH 1718 LLC, Petitioner, ROSANA SUAREZ, Respondent(s). PARKASH 2115 LLC, Petitioner, MARTHA GONZALEZ, Respondent(s). PARKASH 2165 LLC, Petitioner, VANESSA MARIS RODRIGUEZ, Respondent(s). PARKASH 2165 LLC, Petitioner, SOLANGE M. GUERRERO, Respondent(s). VED PARKASH, Petitioner, FLOR M. RUIZ, Respondent(s). PARKASH 2625 LLC Petitioner, DARIEL MEJIA, and JOEL T. VASQUEZ, Respondent(s). PARKASH 190 LLC, Petitioner, ROSALIND DAWSON-SAUNDERS, Respondent(s). VED PARKASH, Petitioner, FRANCES FULGENCIO, Respondent(s). VED PARKASH, Petitioner, JOSE DIAZ, and DORA M. CALDERON, Respondent(s). VED PARKASH, Petitioner, SILVA M. PETRUS, Respondent(s). PARKASH 197 LLC, Petitioner, YESSICA DE FERRI, Respondent(s). VED PARKASH, Petitioner, JENNIFER MOSCOSO, and CRISMELY Y. TAVAREZ, Respondent(s). VED PARKASH, Petitioner, BARBARA A. ROSA, and MIGUEL A. ROSA, Respondent(s). PARKASH 3990 LLC, Petitioner, JAMISON T. BOWMAN, Respondent(s). PARKASH 4769 LLC, Petitioner, GEORGE R. MYERS, Respondent(s). PARKASH 4769 LLC, Petitioner, JASON R. WILLIAMS, Respondent(s). PARKASH 242 LLC, Petitioner, TEOFILO PONCE, Respondent(s). PARKASH 242 LLC, Petitioner, SUZETTE S. POWELL, Respondent(s). VED PARKASH, Petitioner,
v.
ARNALDO RODRIGUEZ, Respondent(s).

Anurag Parkash, Esq. Amjad Farhat, c/o Anurag Parkash, Esq. Raphael L. Almonte and Maricela Navir Arnaldo Rodriguez Angel Noboa Tejeda Rosa M. Rivera Joseph Marte and Yokaira Marte Mercedes E. Rolleri Daisy Berrido Rosana Suarez Martha Gonzalez Vanessea A. Maris Rodriguez Solange M. Guerrero Flor M. Ruiz Dariel Mejia and Joel T. Vasquez Rosalind Dawson-Saunders Frances Fulgencio Silva M. Petrus Yessica De Ferri Jennifer Moscoso and Crismely Y. Tavarez Barbara A. Rosa and Miguel A. Rosa Jamison T. Bowman George R Myers Jason R. Williams Teofilo Ponce Suzette S. Powell.

Susan Avery, J.

Petitioners commenced the instant twenty-five (25) summary non payment proceedings seeking possession of residential premises located throughout Bronx County. Each proceeding is premised upon the allegation that each respondent failed to pay rent. Petitioners now separately move, in each of the above captioned cases, for the entry of a default judgment and the issuance of a warrant of eviction, based upon the allegations that at the time of submission of each application, each respondent failed to appear or answer the petition and each remained in rental arrears.

MILITARY INVESTIGATION PRIOR TO DEFAULT JUDGMENT

As relevant to the instant decision, in housing court summary non-payment proceedings [1] Federal Law [2] and New York State Law [3] require that, prior to the court signing a default judgment, a petitioner must submit an affidavit, stating that each respondent is not in active military duty or dependent on anyone in active military duty. A petitioner must comply with both the Federal and State requirements. [4]

CONSOLIDATION

Each of the thirty-one (31) affidavits of military status submitted for each of the twenty-five (25) above captioned cases [5] read identically, except as to names and times. Each is sworn to by the same individual, notarized by the same notary and sworn to on the same date. Each investigation as to each respondent's military status or dependency, is alleged to have been conducted personally, with twenty-five (25) different named respondents, all on May 3, 2013, and all within a three (3) hour and seven (7) minute time span. [6] Each affidavit concludes that each respondent is not in active military service or dependant on anyone in active military duty. As a result, this court is given pause, to make further inquiry as to the veracity of the allegations in the affidavits. [7] Accordingly, this court consolidates these matters solely for purposes of the instant submissions, and issues the instant interim decision.

PURPOSE OF MILITARY INVESTIGATION

As relevant to the instant decision, the military laws provide for a restraint against eviction during the period of military service with respect to premises occupied by persons in active military service or their dependents in actions or proceedings affecting the right of possession. [8] The purpose of both state and federal statutes restricting a landlord's right to evict individuals in active military duty, or their dependents is to protect individuals serving in the military from a default judgment being entered against them without their knowledge. [9] The fundamental goal of each act is to protect the rights of service members and their dependents while service members actively serve their country, so that they may devote all of their energy to the defense of the nation without distraction. [10]

In compliance with the foregoing, courts must be "meticulous with respect to the protection of the rights accorded individuals in active military service, and those persons dependent upon those actively engaged in such service" [11] as "[m]ilitary personal who have been defending the country should not return home only to find that, in fact, they have no home." [12] Accordingly, the acts are to "be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation." [13]

Based upon the forgoing, an affidavit submitted by a petitioner stating that a respondent is not in active military duty or dependent on anyone in active military service, must demonstrate sufficient facts to support the claim. And upon a petitioner's failure to do so, a default judgment may not be entered. [14]

AFFIDAVITS OF MILITARY STATUS SUBMITTED HEREIN

Cause for concern to this court, is that, in each of the thirty-one (31) affidavits of non-military status, submitted in support of each petitioners' application for the entry of a default judgment and issuance of a warrant of eviction, the affiant, Amjad Farhat, states [15] that on May 3, 2013, at:

[1]"6:05 PM I went to the premises at 750 Grand Concourse, Apt 1L, Bronx, NY 10451 and had a conversation with Raphael L. Almonte..."
[2]"6:05 PM I went to the premises at 750 Grand Concourse, Apt 1L, Bronx, NY 10451 and had a conversation with Raphael L. Almonte... [as to Maricela Navir co-respondent]..."
[3]"6:12 PM I went to the premises at 825 Gerard Avenue, Apt 4H, Bronx, NY 10451 and had a conversation with Arnaldo Rodriguez..."
[4]"6:14 PM I went to the premises at 825 Gerard Avenue, Apt 4K, Bronx, NY 10451 and had a conversation with Angel Noboa Tejeda..."
[5]"6:16 PM I went to the premises at 825 Gerard Avenue, Apt 2J, Bronx, NY 10451 and had a conversation with Rosa M. Rivera..."
[6]"6:31 PM I went to the premises at 180 East 163 St, Apt 6A, Bronx, NY 10451 and had a conversation with Joseph Marte..."
[7]"6:31 PM I went to the premises at 180 East 163 St, Apt 6A, Bronx, NY 10451 and had a conversation with Joseph Marte...[as to Yokaira Marte co-respondent]...."
[8]"6:33 PM I went to the premises at 180 East 163 St, Apt 6H, Bronx, NY 10451 and had a conversation with Mercedes E. Rolleri..."
[9]"6:41 PM I went to the premises at 1718 Grand Ave, Apt 6B, Bronx, NY 10453 and had a conversation with Daisy Berrido..."
[10]"6:43 PM I went to the premises at 1718 Grand Ave, Apt 6J, Bronx, NY 10453 and had a conversation with Rosana Suarez..."
[11]"7:00 PM I went to the premises at 2115 Ryer Ave, Apt A45, Bronx, NY 10457 and had a conversation with Martha Gonzalez..."
[12]"7:07 PM I went to the premises at 2165 Ryer Ave, Apt 1C, Bronx, NY 10457 and had a conversation with Vanessea A. Maris Rodriguez..."
[13]"7:11 PM I went to the premises at 2165 Ryer Ave, Apt 6H, Bronx, NY 10457 and had a conversation with Solange M. Guerrero..."
[14]"7:20 PM I went to the premises at 2260 University Ave, Apt 5C, Bronx, NY 10468 and had a conversation with Flor M. Ruiz..."
[15]"7:38 PM I went to the premises at 2625 Grand Concourse, Apt 6D, Bronx, NY 10468 and had a conversation with Dariel Mejia...."
[16]"7:38 PM I went to the premises at 2625 Grand Concourse, Apt 6D, Bronx, NY 10468 and had a conversation with Dariel Mejia....[as to Joel T. Vasquez co-respondent]..."
[17]"7:48 PM I went to the premises at 58 East 190 Street, Apt 5A Bronx, NY 10468 and had a conversation with Rosalind Dawson-Saunders..."
[18]"7:55 PM I went to the premises at 50 East 191 Street, Apt 5H, Bronx, NY 10468 and had a conversation with Frances Fulgencio..."
[19]"7:57 PM I went to the premises at 50 East 191 St, Apt 3H, Bronx, NY 10468 and had a conversation with Jose Diaz..."
[20]"7:57 PM I went to the premises at 50 East 191 St, Apt 3H, Bronx, NY 10468 and had a conversation with Jose Diaz...[as to Dora M. Calderon co-respondent]..."
[21]"8:02 PM I went to the premises at 50 East 191 Street, Apt 5S, Bronx, NY 10468 and had a conversation with Silva M. Petrus..." [16]
[22]"8:11 PM I went to the premises at 165 West 197 Street, Apt 4L, Bronx, NY 10468 and had a conversation with Yessica De Ferri..."
[23]"8:30 PM I went to the premises at 3525 Perry Ave, Apt 7B, Bronx, NY 10467 and had a conversation with Jennifer Moscoso..."
[24]"8:30 PM I went to the premises at 3525 Perry Ave, Apt 7B, Bronx, NY 10467 and had a conversation with Jennifer Moscoso...[as to Crismely Y. Tavarez co-respondent]..."
[25]"8:38 PM I went to the premises at 3764 Bronx Blvd, Apt 5H, Bronx, NY 10467 and had a conversation with Barbara A. Rosa..."
[26]"8:38 PM I went to the premises at 3764 Bronx Blvd, Apt 5H, Bronx, NY 10467 and had a conversation with Barbara A. Rosa...[as to Miguel A. Rosa co-respondent]..."
[27]"8:46 PM I went to the premises at 3990 Bronx Boulevard, Apt 5F, Bronx, NY 10466 and had a conversation with Jamison T. Bowman..."
[28]"8:56 PM I went to the premises at 4769 White Plains Road, Apt 4J, Bronx, NY 10470 and had a conversation with George R Myers..."
[29]"8:58 PM I went to the premises at 4769 White Plains Road, Apt 1E, Bronx, NY 10470 and had a conversation with Jason R. Williams..."
[30]"9:05 PM I went to the premises at 707 East Street [17], Apt 2H, Bronx, NY 10470 and had a conversation with Teofilo Ponce..."
[31]"9:12 PM I went to the premises at 735 East 242 Street, Apt 4A, Bronx, NY 10470 and had a conversation with Suzette S. Powell..."

Each affidavit concludes as follows:

"Sworn to before me on
May 4, 2013 _ /s/ Amjad Farhat ________
LicNo.1341911
Richmond NY
_____ /s/ Cheryl Marsh ______
Notary Public"

Taking the affidavits at face value, each, separately appears to be facially sufficient. [18] However, given the statements that the affiant visited twenty-five (25) different premises, made thirty-one (31) different inquires in eight (8) different zip codes at nineteen (19) different apartment buildings and had a personal conversation with twenty-five (25) different named respondents, over the course of three (3) hours and seven (7) minutes, this court is compelled to conduct further inquiry, as false statements of nonmilitary service of a tenant by a landlord violates the statutes. [19]

Accordingly, this court holds in abeyance, a determination on the instant submissions, pending the outcome of the below ordered hearing.

PRECEDENT

Precedent dictates that this court is required to make further inquiry as to the veracity of the statements made in the affidavits of military status. "[T]he fact that respondents were readily found personally for the purposes of the non-military affidavit, but could only be served with the petition by conspicuous service.... [caused] the Court... to request additional documentation from Petitioner's counsel prior to issuing the [default] warrant." [20]

Similarly, in the matters at bar, the affiant, Amjad Farhat, claims to have personally conversed with twenty-five (25) different respondents as to the military status of a total of thirty-one (31) different individuals. However, the process server that claims to have served each notice of petition and petition in the instant matters, Ahmad Farhat, claims to have served only three (3) of the thirty-one (31) named respondents, by personal service. Accordingly, given the fact that "respondents were readily found personally for the purposes of the non-military affidavit" but more than ninety percent (90%) were unable to be served personally with the notice of petition and petition, this court is compelled to make further inquiry, as to the veracity of the allegations in the affidavits of military status. [21]

REQUIREMENTS OF LICENSED PROCESS SERVERS

Recent amendments [22] to the New York City Administrative Code [23] and the Rules of the City of New York [24] currently require a licensed process server "to carry at all times during the commission of his or her licensed activities" a "device to establish electronically and record the time, date, and location of service of process..." [25]

The purpose of the new requirement is to deter process servers from filing affidavits which assert false claims and to make it easier for those reviewing such affidavits to detect such falsehoods. [26]

In each affidavit of military status submitted in the twenty-five (25) pending matters, the line immediately below the affiant's (Amjad Farhat's) signature, reads: "Lic#1341911" (sic). Accordingly, this court holds that where a licenced process server undertakes to conduct an investigation as to a party's military status, and supplies within the affidavit, his or her process servers' license number, he or she was acting in "the commission of his or her" "licensed activities, " [27] when performing such investigation, and therefore the New York City Administrative Code and the Rules of the City of New York require that each investigation be memorialized with an electronic recording.

DETERMINATION / HEARING

SUFFICIENT, CAUSE APPEARING HEREON, it is:

ORDERED, that the instant twenty-five (25) matters will appear on the court calendar, on July 31, 2013, at 141 Livingston Street, Kings County, Part A, room 904, at 2:30 in the post-noon for a hearing to determine, inter alia, if, each allegation that Mr. Amjad Farhat, previously swore to, in each affidavit of respondents' military status, is true, pursuant to penalties of perjury; and it is further,

ORDERED, that Mr. Amjad Farhat, may appear at the hearing along with counsel of his choosing, and with documents to establish that, during the relevant time, he did in fact personally visit each apartment, and had personal conversations which each individual that he swears, under penalties of perjury, that he personally conversed with. Such documents shall include: the affiant's license (#1341911), log book and GPS records, as applicable, pursuant to the New York City Department of Consumer Affairs, the Rules of the City of New York, and the directives of this interim decision and order.

Depending on the credibility this court determines the witness' testimony merits, or upon the witness' default, this matter may be referred to the Office of the District Attorney, the Office of the Attorney General and/or the Department of Consumer Affairs, for appropriate action; and it is further,

ORDERED, that if they have not yet done so, the named respondents in each action, if so inclined, may appear in the courthouse located at 1118 Grand Concourse, Bronx, New York and file any appropriate documents with the clerk of the court in avoidance of the entry of a default judgment; and it is further,

ORDERED, that each respondent, if so inclined, may appear in the courthouse located at 141 Livingston Street, Brooklyn, New York, to participate at the hearing on to be held on July 31, 2013, Part A, room 904 at 2:30 in the post-noon, and if any respondent so chooses, may present testimony, to corroborate or disavow the statements made in the military status affidavits, as alleged by affiant.

The foregoing constitutes the interim decision and order of the court.


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