Sweeney, Gallo, Reich & Bolz, LLP, Attorney for Petitioner
Brian Willins, Respondent Pro Se.
HON. SCOTT FAIRGRIEVE, DISTRICT COURT JUDGE.
Petitioner IFS Properties LLC commenced this holdover proceeding against Respondent Brian Willins concerning 769 DeMott Avenue a/k/a 769 Centennial Avenue, North Baldwin, New York. Petitioner bases this summary proceeding pursuant to RPAPL § 713(5). Petitioner acquired title through the Special/Limited Warranty Deed, dated June 12, 2012 from Countrywide Bank, by Bank of America, N.A., successor by merger. The deed was accompanied by a California ALL - Purpose Acknowledgment dated June 12, 2012.
Paragraph 2 of the Petition states that Respondent is an occupant of the said premises. The Petition further states that the property "has been sold in foreclosure and a certified copy of the deed has been exhibited to you."
Paragraph 4 of the Petition states that the term for Respondent to vacate the property expired on March 23, 2013.
The deed exhibited to Respondent was the Special/Limited Warranty Deed, dated June 12, 2012. The deed from the foreclosure was not exhibited to Respondent. RPAPL § 713(5) states:
Subject to the rights and obligations set forth in section thirteen hundred five of this chapter, the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him.
Petitioner contends that it complied with RPAPL § 713(5) by exhibiting the Special/Limited Warranty Deed. Respondent replies that the foreclosure deed must be exhibited.
This is a case of first impression. Does the exhibiting to Respondent of the deed by which Petitioner acquired title (not the deed from foreclosure) satisfy the requirements of RPAPL § 713(5)?
This court rules that the failure to exhibit the referee's deed to Respondent constitutes a fatal error requiring that this matter be dismissed without prejudice to renew upon compliance with all applicable statutes.
The courts of this state require that the referee's deed be exhibited to the Respondent. See Home Loan Services, Inc. v. Moskowitz, 31 Misc.3d 37, 920 N.Y.S.2d 569 (App Term, 2, 11th & 13th Jud Dists, 2011), wherein the Court stated:
While this statute provides that a notice to quit may be served in the same manner as a notice of petition and petition, it does not make the same provision for the referee's deed. Instead, the statute specifically requires that the deed be "exhibited" to the respondent. In our view, and in light of the strong policy prohibiting unlawful evictions (see generally Bill Jacket, L.1981, ch. 467), attaching a copy of the referee's deed to a 10-day notice to quit served by "nail and mail" was insufficient to satisfy the requirement of exhibition of the deed pursuant to RPAPL 713(5) (see Colony Mtge. Bankers, 192 Misc.2d 704, 747 N.Y.S.2d 303 [Sup Ct, Westchester County 2002]; but see Novastar Mtge., Inc. v. LaForge, 12 Misc.3d 1179[A], 2006 NY Slip Op 51306[U], 2006 WL 1868015 [Sup Ct, Green County 2006] [discussing a writ of assistance]; Duetsche Bank Natl. Trust Co. v. Resnik, 24 Misc.3d 1238[A], 2009 NY Slip Op 51793[U], 2009 WL 2527297 [Nassau Dist Ct 2009]; GRP/AG ...