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104 Realty LLC v. Brown

Civil Court of the City of New York, Kings County

November 15, 2013

104 Realty LLC, Petitioner,
v.
Karen Brown and GRANDERSEN BROWN, Respondent(s). 104 REALTY LLC, Petitioner, TENISHA N DANCE, Respondent(s). 104 REALTY LLC, Petitioner, CAROLE DUKES, Respondent(s). 104 REALTY LLC, Petitioner, CHANCY FRITZ, Respondent(s). 104 REALTY LLC, Petitioner, ERIC W PLAZA, Respondent(s). 580 EAST 21ST LLC, Petitioner, ROBERT MORRISON, Respondent(s). 580 EAST 21ST LLC, Petitioner, DWIGHT DAWKINS and ELAINA RATTAN, Respondent(s). 580 EAST 21ST LLC, Petitioner, MARIE PIERRE, EMMANUEL PIERRE and JEAN BAPTISTE, Respondent(s) 580 EAST 21ST LLC, Petitioner, ANASTASIE ATHANASE and DIANE LEWIS, Respondent(s). 580 EAST 21ST LLC, Petitioner, NICHOLIN MCMILLAN, Respondent(s). 580 EAST 21ST LLC, Petitioner, NEVETA M PIERRE and MARC MAIGNAN, Respondent(s). 580 EAST 21ST LLC, Petitioner, CARLOS HALL and YOLANDA HALL, Respondent(s). 104 REALTY LLC, Petitioner,
v.
TENISHA N DANCE, Respondent(s). 104 REALTY LLC, Petitioner,
v.
CAROLE DUKES, Respondent(s). 104 REALTY LLC, Petitioner,
v.
CHANCY FRITZ, Respondent(s). 104 REALTY LLC, Petitioner,
v.
ERIC W PLAZA, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
ROBERT MORRISON, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
DWIGHT DAWKINS and ELAINA RATTAN, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
MARIE PIERRE, EMMANUEL PIERRE and JEAN BAPTISTE, Respondent(s) 580 EAST 21ST LLC, Petitioner,
v.
ANASTASIE ATHANASE and DIANE LEWIS, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
NICHOLIN MCMILLAN, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
NEVETA M PIERRE and MARC MAIGNAN, Respondent(s). 580 EAST 21ST LLC, Petitioner,
v.
CARLOS HALL and YOLANDA HALL, Respondent(s).

Unpublished Opinion

Law Office of Benjamin Z. Epstein PC, 2394 Nostrand Avenue, Brooklyn, NY 11210.

Karen and Grandersen Brown, 224 Highland Boulevard, #805, Brooklyn, NY 11207.

Tenisha N Dance, 224 Highland Boulevard, #610, Brooklyn, NY 11207.

Carole Dukes, 224 Highland Boulevard, #808, Brooklyn, NY 11207.

Chancy Fritz, 224 Highland Boulevard, #901, Brooklyn, NY 11207.

Eric W Plaza, 224 Highland Boulevard, #807, Brooklyn, NY 11207.

Robert Morrison, 580 East 21 Street, #6D, Brooklyn, NY 11226.

Dwight Dawkins and Elaina Rattan, 580 East 21 Street, #4D, Brooklyn, NY 11226.

Marie and Emmanuel Pierre and Jean Baptiste, 580 East 21 Street, #5D, Brooklyn, NY 11226.

Anastasie Athanase and Diane Lewis, 580 East 21 Street, #6C, Brooklyn, NY 11226.

Nicholin McMillan, 580 East 21 Street, #5F, Brooklyn, NY 11226.

Neveta M Pierre and Marc Maignan, 580 East 21 Street, #1G, Brooklyn, NY 11226.

Carlos and Yolanda Hall, 580 East 21 Street, #2G, Brooklyn, NY 11226.

SUSAN F. AVERY, J.

Petitioners commenced the instant twelve (12) summary nonpayment proceedings seeking possession of residential premises located in Kings County. Each verified petition filed in each proceeding is premised upon the allegation that each respondent failed to pay rent following an oral demand for payment of alleged rent arrears. 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 remains in rental arrears.

CONSOLIDATION

The instant twelve (12) proceedings share common factors with each other, including: all twelve (12) petitioners are represented by the same attorney, that same attorney notarized each affidavit of military investigation, that same attorney notarized each affidavit of default, the managing agent for each premises, as claimed in each petition and each military status affidavit, is the same individual, Mr. Joel Schwartz, the same individual that claims to have conducted each investigation of military status and the same individual that signed each affidavit of default, each affidavit of military investigation reads almost identically to each other, five (5) of the twelve (12) petitioners are the same entity, namely, 104 Realty LLC, and seven (7) of the twelve (12) petitioners are the same entity, namely, 580 East 21st LLC.

Accordingly, in line with precedent, this court is given pause, to make further inquiry as to the veracity of the allegations in the affidavits, [1] and consolidates the instant twelve (12) applications for the purpose of the instant submissions, and issues the following interim decision/order.

PREDICATE DEMAND

Paragraph "8" of each of the twelve (12) petitions, reads as follows:

"Said rent has been demanded [û] personally [] by written 3/5/10 day demand from the tenants (sic) since same became due."

As the language referencing a "written demand" was struck out in each of the twelve (12) verified petitions and the language referencing an "oral demand" was left un-struck and specifically marked with a check and highlighted in each of the twelve (12) petitions, it is clear that each petitioner is alleging that an oral demand for the alleged rent arrears was made. The Real Property Actions And Procedure Law ("RPAPL") specifically authorizes a petitioner to orally demand rental arrears prior to commencing a summary nonpayment proceeding [2] absent an express agreement to the contrary. [3]

PROOF OF ORAL DEMAND

Troubling to this court is that there is nothing in any of the twelve (12) petitions filed in the instant applications, which details the specifics of any of the claimed oral demands. Just as troubling to this court is that not any of the twelve (12) affidavits of default, submitted in support of the instant applications, address or provide any additional details surrounding the circumstances of any of the claimed oral demands for rent [4].

To evaluate the propriety of an alleged oral rent demand, a court must be provided with details surrounding the delivery of the claimed oral demand [5] including:

(1)the identity of the individual that made the rent demand, such as the landlord, [6] owner or managing agent [7] or, if authorized, the superintendent or property manager; [8]
(2)a statement identifying the individual that the rent was orally demanded from, such as the tenant of record; [9]
(3)the means of communication of the oral demand, such as during a visit to the premises sought to be recovered, by a face to face conversation [10] or by telephone; [11]
(4)the circumstances surrounding the demand, such as a description of the location, the person spoken to or telephone number; [12] and
(5)the content of the demand. [13]

As each petition was verified by counsel for the petitioner, and not based on actual first hand knowledge [14] a necessary element to establish entitlement to a default judgment in each of the instant proceedings, to wit: proper service of a proper predicate notice, is lacking. [15]

AFFIDAVITS OF MILITARY STATUS SUBMITTED

Also troubling to this court is that each of the twelve (12) affidavits of military status submitted for the nineteen (19) named respondents [16] read practically identically. Each affidavit as to military status and dependency, is sworn to by the same individual, Mr. Joel Schwartz, notarized by the same notary and sworn to on October 1, 2013 or October 2, 2013. Each investigation as to each respondent's military status or dependency, is alleged to have been conducted personally, with nineteen (19) different named respondents, and eighteen (18) of those personal inquiries are claimed to have taken place on one (1) single day, October 1, 2013 and each affidavit concludes that each respondent is not in active military service or dependent on anyone in active military duty.

In addition, each affidavit of military status, when read together, appears to be pro forma and each fails to allege a sufficient factual basis to conclude that none of the respondents are in active military service or dependent on one in active military service.

Specifically, each affidavit reads as follows [17]:

"Joel Schwartz, being duly, sworn deposes and says:

"I reside at 303 Beverly Road County of Kings

"I'm the... _ _ Mgr Agent;.... of the petitioner. I have been requested by the attorney for the petitioner-Landlord to make an investigation to ascertain if the above named Tenant (and Undertenant are) is at the present time in military service.

"On 10/1/13, I called at the premises no. [address of the premises sought to be recovered] and had a conversation with [named respondent(s)]
"I asked the person spoken to whether said tenant was in military service of the United States or of the State of New York, in any capacity and the person informed me that said tenant was not in military service, nor was the Respondent or the Tenant or anyone in said Respondent's or Tenant's family dependent on any person in the military service of the United States or any nation allied with the United States.
"From the facts above set forth, I am convinced that the said tenant is not in the military service of the United States or of New York State at the present time.

"Sworn to before me on 10/[ ]/13

_ /s/ Joel Schwartz _____

Signature of Investigator

_____ "/s/ Benjamin Z. Epstein ______

"Notary Public..."

Given the statements that the affiant alleges that he had nineteen (19) personal conversations, eighteen (18) of them on the same day and fails to mention any specifics, of the investigation, such as the time of the investigation, or if the investigation was conducted by phone, email or in person, and no description of the premises provided, [18] this court is compelled to conduct further inquiry, as false statements of nonmilitary service of a tenant by a landlord violates both, federal and state law. [19]

REQUIREMENT AND PURPOSE OF A MILITARY INVESTIGATION

As relevant to the instant applications, in housing court summary nonpayment proceedings, [20] Federal Law [21] and New York State Law [22] 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. [23]

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" [24] as "[m]ilitary personal who have been defending the country should not return home only to find that, in fact, they have no home." [25] 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." [26]

Accordingly, 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. [27]

CAUSE FOR FURTHER INQUIRY AND CONSOLIDATION

This court takes judicial notice of the files before it, and notes that in each proceeding, NONE of the respondents were alleged to have been personally served with the notice of petition and petition, yet all respondents were readily available to personally converse with Mr. Schwartz, as to their individual military status and dependency (eighteen (18) different respondents on the same day) and also readily available for purposes of receiving the predicate oral demand, yet the process server (even over the course of two (2) days) was unable to locate even one (1) of the nineteen (19) named respondents for personal service of the notice of petition and petition. [28] Based upon the foregoing, this court is required to make further inquiry as to the veracity of the statements made in the documents filed with the court.

Accordingly, this court consolidates the above captioned matters for purposes of the instant submission(s) and holds in abeyance, a determination thereon, pending the outcome of the below ordered hearing.

DETERMINATION / HEARING

SUFFICIENT, CAUSE APPEARING HEREON, it is:

ORDERED, that the instant twelve (12) matters will appear on the court calendar, on December 11, 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, the nature and the circumstances surrounding Mr. Schwartz's conducting military status investigations, as he swore to conducting, pursuant to penalties of perjury; and it is further,

ORDERED, that Mr. Schwartz, may appear at the hearing along with counsel of his choosing, and with documents to establish that, on October 1, 2013 and October 2, 2013, he did in fact personally converse with each of the individuals that he swears, under penalties of perjury, that he personally conversed with. Such documents may include: phone records if the investigation was conducted by telephone or Global Positioning System (GPS) records if the investigation was conducted in person; and it is further,

ORDERED, that depending on the credibility this court determines the witness' testimony merits, or upon the witness' default, this matter may be referred to the appropriate law enforcement agency, for appropriate action; and it is further,

ORDERED, that if they have not yet done so, the named respondents in each action, may appear in the courthouse located at 141 Livingston Street, Brooklyn, New York and file any appropriate document(s) with the clerk of the court to avoid of the entry of a default judgment; and it is further,

ORDERED, that each respondent, may appear in the courthouse located at 141 Livingston Street, Brooklyn, New York, to participate at the hearing, and present evidence to corroborate or disavow: (1) statements made by Mr. Schwartz, that he personally questioned each named respondent as to his or her military status or dependency; and/or (2) being the recipient of an oral demand for rent, as alleged in the verified petition; and it is further

ORDERED, that counsel for the petitioners may appear at the hearing and submit an affidavit for each petition based upon personal knowledge of the circumstances surrounding the oral rent demands. Such affidavits shall comply with the criteria as outlined in this interim decision/order.

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


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