Aviles v. Santana

Decision Date05 July 2017
Docket NumberNo. 26087/2017.,26087/2017.
Parties Maria E. AVILES, Petitioner–Landlord, v. Carlos SANTANA, Respondent–Tenant. "JANE DOE" # 1, "JANE DOE" # 2, Respondents–Undertenants.
CourtNew York Civil Court

Mahandra Persaud, Esq., 4200 White Plains Road, Bronx, New York 10466–3014, (718) 231–6737, Attorney for Petitioner.

Nicole Summers, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, New York 10451, (347) 842–1418, Attorney for Respondent.


Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss:

Papers Numbered
Notice of Motion, Affirmation & Exhibits A–B 1
Respondent's Memorandum of Law in Support 2
Petitioner's Affirmation in Opposition & Exhibits A–C 3

Upon the foregoing papers and for the following reasons, Respondent's Motion to Dismiss is decided as follows.


This is a holdover eviction proceeding in which Petitioner, Maria E. Aviles, alleges that Respondent, Carlos Santana, is the tenant of record "pursuant to a weekly agreement with the Petitioner," Petition at ¶ 2, which was terminated by written notice, Petition at ¶ 7. A copy of the notice, signed by Robert Gonzalez as Ms. Aviles' agent, with proof of service, is attached to the Petition. Petitioner alleges that the premises are not a multiple dwelling and are not subject to rent regulation. Petition at ¶¶ 9, 10. The Petition is signed and verified by Robert Gonzalez as Ms. Aviles's agent, and in the sworn verification Mr. Gonzalez states that he is Petitioner's "attorney-in-fact/agent" and that he knows the contents of the Petition to be true to his own knowledge, except as to those matters alleged upon information and belief, as to which he believes them to be true. Attached to the Petition is a New York Statutory Short Form Power of Attorney, in which Ms. Aviles appointed Mr. Gonzalez as her agent with broad powers, including the authority to act on her behalf as to "real estate transactions" and "claims and litigation". Both Ms. Aviles and Mr. Gonzalez signed the Power of Attorney, in the appropriate sections of the form, and had their signatures acknowledged by a notary public on February 3, 2017.

The Petition was returnable May 22, 2017, on which date the proceeding was adjourned to June 12, 2017 for Respondent to meet with an attorney. Respondent retained counsel, who filed a motion, returnable June 12, 2017 and served on June 7, 2017, to dismiss under Rule 3211(a)(7) of the Civil Practice Law and Rules ("CPLR") for failure to state a cause of action due to improper verification of the Petition. Respondent's attorney argues in her Memorandum of Law that the verification is defective for three reasons: First, because an agent acting under a power of attorney for the petitioner-landlord is not among those authorized to maintain a proceeding under Section 721 of the Real Property Actions and Proceedings Law (RPAPL); second, because such an agent lacks authority to verify a petition under RPAPL § 741 and CPLR § 3020(d) ; third, because the verification fails to meet CPLR R 3021's requirement that where a verification is made by a person other than a party, the verifier must set forth the "grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party."

In the alternative, Respondent requests leave to interpose an Amended Answer pursuant to CPLR R 3025 and 22 NYCRR § 208.7.

Petitioner opposes, arguing that an agent under a power of attorney is permitted to verify a petition and that respondent failed to challenge the verification with "due diligence" as required by CPLR R 3022.


First, the court will address the timeliness of Respondent's challenge to the verification. Under CPLR R 3022, a party may treat a pleading with a defective verification as a nullity "provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so." Further, under CPLR R 2101(f), "The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections." The short time-frames for rejection of a pleading or paper are tempered by CPLR § 2004, which allows the court to "extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown".

The Court of Appeals "has not employed a specific time period to measure due diligence" under CPLR R 3022. Miller v. Board of Assessors (91 N.Y.2d 82, 86 n. 3, 689 N.E.2d 906, 908 n. 3, 666 N.Y.S.2d 1012, 1014 n. 3 [1997] ). The timeliness of an objection to the propriety of a verification "must turn on the particular circumstances." Fort Holding Corp. v. Otero (157 Misc.2d 834, 836, 598 N.Y.S.2d 908, 910 [Civ Ct N.Y. Co 1993] ). See, e.g., Oceana Apartments v. Spielman (164 Misc.2d 98, 623 N.Y.S.2d 724 [Civ Ct Kings Co 1995] )(motion brought by counsel for previously unrepresented tenant challenging verification of the petition deemed timely, even though case pending for six week). A court's imposition of a 24–hour deadline for challenging a pleading based upon defective verification, as Petitioner's attorney argues is required by the "due diligence" standard, see Lentlie v. Egan (94 A.D.2d 839, 463 N.Y.S.2d 542 [3rd Dep't 1983] ); O'Neil v. Kasler (53 A.D.2d 310, 385 N.Y.S.2d 683 [4th Dep't 1976] ); Westchester Life, Inc. v. Westchester Magazine Co. (85 N.Y.S.2d 34, 1948 N.Y. Misc. LEXIS 3702 [Sup Ct N.Y. Co 1948] ), "is extraordinarily rare and curiously, not one court that has done so cites to the actual origin of the alleged rule." Rodriguez v. Westchester County Bd. of Elections (47 Misc.3d 956, 958, 5 NYS3d 826, 828 [Sup Ct Westch Co 2015] )(rejecting petitioner's claim that by failing to assert lack of verification within 24 hours of being served respondents waived their claim of defective Election Law petition). Factors to consider in determining "due diligence" include the amount of time elapsed between service of the faulty pleading and its rejection; the reasons for, and reasonableness of, time elapsed; whether the party already had counsel or is an attorney; whether the issue was raised at the first opportunity; and the manner in which the issue was raised. Rodriguez (47 Misc.3d at 962, 5 N.Y.S.2d at 831). "Ultimately, due diligence requires prompt attention, no undue delays, and no whiff of gamesmanship." Id.

In determining whether to take a strict view of the due diligence standard of CPLR 3022 as urged by petitioner, "the Court must also consider the litigation approach taken by [petitioner's] counsel with respect to compliance with that section and the verification requirements generally." Zibell v. County of Westchester (2007 N.Y. Misc. LEXIS 5161 [Sup Ct Westch Co 2007] )(court exercised its discretion to consider the merits of defendant's challenge to the sufficiency of plaintiffs' verifications on their complaint and bill of particulars, raised after two-month and one-month delays; upon such consideration, plaintiffs' verifications found to be defective and stricken, with permission to be reserved with proper verifications without further motion practice within a proscribed time period). Further, "a generally prescribed short time limit for due diligent notification of the rejection of a verification should not be inflexibly applied as the standard in all proceedings and actions." Fort Holding Corp v. Otero (157 Misc.2d at 836, 598 N.Y.S.2d at 910 )(rejection of verification within 20 hours of the date attorney agreed to represent non-English-speaking respondent-tenant found to meet the due diligence standard).

Here, it is an appropriate exercise of the court's discretion to find Respondent's challenge to Petitioner's verification of its Holdover Petition to be timely. First, it was made by motion on notice, not simply by returning the rejected pleading to the drafter or raising the issue orally on the adjourned date at which Respondent first appeared by counsel. Second, respondent was not otherwise represented by counsel and appeared pro se on the initial return date of May 22, 2017. Nevertheless, by the first adjourned date three weeks later on June 12, 2017, not only had she retained counsel but such counsel had served (on June 7) a motion returnable June 12 challenging the verification. This was a reasonable period of time within which to challenge the verification under the circumstances of this case.

Finding Respondent's challenge to Petitioner's verification to be sufficiently timely, however, does not mean that the court finds Respondent's objections to that verification to warrant dismissal of the Petition. Addressing Respondent's three arguments in order, while it is correct that an agent acting under a power of attorney, such as Mr. Gonzalez, is not authorized to maintain a summary eviction proceeding in his own name under RPAPL § 721, Cortazzo v. Reynolds (149 Misc.2d 210, 571 N.Y.S.2d 178 [App Term 2nd Dep't 1991] ), this proceeding was not brought in the agent's name. Rather, it is clear from the Petition that it was brought correctly in the name of the principal, Maria E. Aviles. See, e.g., Owego Properties v. Campfield (182 A.D.2d 1058, 583 N.Y.S.2d 37 [3rd Dep't 1992] ); RAC Gardens Co v. Rodriguez (1989 N.Y. Misc. LEXIS 934 [Sup Ct Kings Co 1989] ); and compare Fallarino v. Fallarino (2017 N.Y. Misc. LEXIS 2091, 2017 N.Y. Slip Op 27186 [App Term 2nd Dep't 2017] ) (reversing lower court and granting respondent-tenant's motion to dismiss holdover petition where petitioner's mother, a nonparty to the proceeding, had a life estate, petitioner was "merely a remainderman," and "[t]he fact that petitioner may bear his mother's durable power of attorney does not permit him to commence this proceeding in his own name"). Respondent...

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