367 East 201st St. LLC v. Velez

• Decision Date: 10 January 2011
• Docket Number: No. 260394.,260394.
• Parties: In the Matter of 367 EAST 201ST STREET LLC, Petitioner, v. Milcenia VELEZ, Warrant Clerk of the Bronx Civil Court for the City of New York Jack Baer as Chief Clerk of the Civil Court of the City Of New York, Danielle Jones and Tysheim Campbell, Respondents.
• Court: New York Supreme Court

917 N.Y.S.2d 814

31 Misc.3d 281

In the Matter of 367 EAST 201ST STREET LLC, Petitioner,

v.Milcenia VELEZ, Warrant Clerk of the Bronx Civil Court for the City of New York Jack Baer as Chief Clerk of the Civil Court of the City Of New York, Danielle Jones and Tysheim Campbell, Respondents.

No. 260394.

Supreme Court, Bronx County, New York.

Jan. 10, 2011.

John W. McConnell, Esq., Office of Court Administration, New York, for Court Respondents.

Wenig Saltiel LLP, Brooklyn, for Petitioner.

KENNETH L. THOMPSON JR., J.

Petitioner's Order to Show Cause for a an order prohibiting the Warrant Clerk of the Bronx County for the Civil Court of the City of New York from rejecting anywarrant application based on the omission of an "Affidavit of Merit" is denied.

In a nutshell, Petitioner filed a Notice of Petition for the Non-payment of Rent (Petition) against Respondent-Tenants DANIELLE JONES and TYSHEIM CAMPBELL on or about April 6, 2010. ( Pet. Ver. Pet. at ¶ 1.) Since Respondents failed to respond to the Petition, Petitioner through their counsel Wenig Aaltiel LLP, sought a default judgment and warrant of eviction on May 7, 2010. ( Id. at ¶ 3.) The Warrant Clerk rejected the application "out of hand" on May 15, 2010 because it did not contain an "Affidavit of Merit." ( Id. at ¶ 5; see also id. at Ex. C.)

Petitioner now argues that the Warrant Clerk had no basis to reject its application because there is no "statute that requires an affidavit of merit in order to obtain a default judgment and issuance of the warrant of eviction where a tenant has failed to answer or appear." ( Id. at ¶ 6.) They add that:

[I]f the legislature intended for the civil court clerks to have discretion to review the adequacy of pleadings prior to entry of a default judgment, or for the court to create its own policies concerning conditional requirements and additional submissions, such discretion would have been included in the statute. Assuredly, in the absence of a provision tothe contrary, a judge, even the presiding judge, cannot be permitted to design her own rules to add additional requirements regarding a procedure which the legislature has already established and on which the Court of Appeal has spoken.

( Pet. Memo of Law at 4-5.)

The Court disagrees with Petitioner's stance on three fronts. First, the Honorable Judge Fern Fisher is the Unified Court System's Deputy Chief Administrative Judge, which imbues her with the plenary power to issue directives—such as Civil Court Directive DRP-191-A—under New York State's Constitution and New York City's Codes, Rules and Regulations. See N.Y. Const. VI, § 28; 22 N.Y.C.R.R. § 81.1(b)(1), (4), (6) and (8). Second, the requirement that a clerk employed by the unified court system, including Civil Court, must recognize and acquiesce to such a directive flows directly from New York's Civil Practice Law and Rules. CPLR § 2102(c). Finally, the First Department has found that summary proceedings to recover possession of real property are the type of summary determinations that may not rely solely on the affidavit of counsel who lacks personal knowledge of the facts. See Brusco v. Braun, 199 A.D.2d 27, 31-32, 605 N.Y.S.2d 13, aff'd 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994]: see also RPAPL Art. VII. A conclusion neither inconsistent—nor otherwise at odds—with New York's laws governing non-payment proceedings and the contents of petitions seeking such relief. See N.Y. Real Props. Acts Laws §§ 732, 741.

The Directive

It has long been our practice to follow RPAPL § 741 which refers to CPLR § 3020(d), that if a petition was verified by the attorney for the party, it would be acceptable for the entry of a default judgment. A recent Appellate Court decision, Sella Propers. v. DeLeon, 25 Misc.3d 85, 890 N.Y.S.2d 254, Second Department 2009, found that an attorney verified petition is sufficient to satisfy RPAPL 741, however, entry of a default judgment requires a petition or an affidavit sworn to by an individual with personal knowledge of the facts. Since this issue has not been decided to the contrary in the First Department, the clerks are directed to follow "Sella" in the First Department also, until the First Department addresses the issue otherwise.

Based on the above case and practice annotation, we now direst the following:

DIRECTIVE:

A petition or affidavit of facts verified by the party's attorney is not sufficient for the entry of a default judgment, unless the attorney has personal knowledge of the facts and says this in the petition or affidavit. The affidavit of default may be made by the attorney, if the attorney specifically affirms personal knowledge.

Applications for default judgment must be accompanied by an affidavit from a person with personal knowledge. Any individual with personal knowledge of the facts may verify the affidavit.

Applications for default judgment that are not accompanied by an affidavit from a person with personal knowledge should be returned with a notation that they can be resubmitted with the appropriate affidavit.

Civil Court Directive DRP-191-A.

The Constitution

The chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the unified court system. In the exercise of such responsibility, the chief administrator of the courts shall have such powers and duties as may be delegated to him or her by the chief judge and such additional powers and duties as may be provided by law.

N.Y. Const. VI, § 28.

The New York Codes, Rules and Regulations

The deputy chief administrators for the courts within and outside the City of New York shall: (1) assist the Chief Judge and the Chief Administrator of the Courts in the supervision of the administration and operation of the unified court system; (4) except as provided in paragraphs (c)(4) and (5) of this section, supervise the day-to-day operations of the courts, county clerks' offices and commissioners of jurors, if any, within their jurisdictions and oversee the administrative actions of the Administrative Judges of the courts within their jurisdictions; (6) issue directives and orders necessary to implement these powers and duties; [and](8) do all other things appropriate to exercise their aforesaid functions, powers and duties.

22 N.Y.C.R.R. § 81.1(b)(1), (4), (6) and (8).

The Civil Practice Law and Rules

A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court. CPLR § 2102(c).

The Real Property Laws

The petition shall be verified by the person authorized by section seven hundred twenty-one to maintain the proceeding; or by a legal representative, attorney or agent of such person pursuant to subdivision (d) of section thirty hundred twenty of the civil practice law and rules. An attorney of such person may verify the petition on information and belief notwithstanding the fact that such person is in the county where the attorney has his office. Every petition shall: 1.State the interest of the petitioner in the premises from which removal is sought. 2. State the respondent's interest in the premises and his relationship to petitioner with regard thereto. 3. Describe the premises from which removal is sought. 4. State the facts upon which the special proceeding is based. 5. State the relief sought. The relief may include a judgment for rent due,and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made.

N.Y. Real Prop. Acts. Law § 741.

If the appropriate appellate division shall so provide in the rules of a particular court, this section shall be applicable in such court in a proceeding brought on the ground that the respondent has defaulted in the payment of rent; in such event, all other provisions of this article shall remain applicable in such proceeding, except to the extent inconsistent with the provisions of this section. 1. The notice of petition shall be returnable before the clerk, and shall be made returnable within fivedays after its service. 2. If the respondent answers, the clerk shall fix a date for trial or hearing not less than three nor more than eight days after joinder of issue, and shall immediately notify by mail the parties or their attorneys of such date. If the determination be for the petitioner, the issuance of a warrant shall not be stayed for more than five days from such determination. 3. If the respondent fails to answer within five days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service. 4. The notice of petition shall advise the respondent of the requirements of subdivisions 1, 2 and 3, above.

N.Y. Real Prop. Acts. Law § 732.

Analysis

Petitioner's basic argument is two-part, that 1) there is no basis for the Deputy Chief Administrative Judge to require that petitions to recover possession of real property for non-payment of rent must include an "Affidavit of Merit," thus, 2) the Warrant Clerk may not reject a petition to recover possession of real property for non-payment of rent for failing to include such an Affidavit. Petitioner contends that the "Affidavit of Merit" requirement contained in DRP-191-A is an "additional requirement" that is not prescribed by RPAPL Art. 7 based on Mennella v. Lopez-Torres, 229 A.D.2d 153, 655 N.Y.S.2d 604, aff'd. 91 N.Y.2d 474, 672 N.Y.S.2d 834, 695 N.E.2d 703 [1998], thus, it may not stand.

The Court disagrees with Petitioner's reading and application of Mennella, however, and finds that the Deputy Chief Administrative Judge's implementation of Civil Court Directive DRP-191...