Cascade Funding Rmi Alt. Holdings v. Giannetto

Decision Date10 November 2022
Docket Number2022-51132
PartiesCascade Funding Rmi Alternative Holdings LLC, Petitioner, v. Elizabeth Giannetto AS TRUSTEE OF THE ELIZABETH GIANETTO LIVING TRUST DATED MARCH 14, 2003; JASON KANNRY, "JOHN DOE" and "JANE DOE," Respondent(s).
CourtNew York Justice Court

Unpublished Opinion

Counsel for Petitioner: Kimberly Mulligan, Esq. of Robertson Anschutz, Schneid, Crane & Partners, PLLC

Counsel for Respondents: James G. Dibbini, Esq. of James G Dibbini & Associates, P.C.

Jodi J. Kimmel, J.

Margaret Bober and Eva Rem, admittedly appearing in this proceeding as Respondents on behalf of Jane Doe 1 and Jane Doe 2, have moved to dismiss the Petition prior to answering same.

BACKGROUND

On May 9, 2004, Elizabeth Giannetto, landlord, and Margaret Bober tenant, entered into a month-to-month lease for the premises located at 4 Old Cross River Road, Katonah, NY ("the Premises"). Ms. Bober has been residing at the Premises since May 2004. Eva Rem is Ms. Bober's mother and claims to be living at the Premises but gives no indication of when she moved in. A Judgment of Foreclosure and Sale was entered on August 22, 2019. A foreclosure sale was conducted on November 20, 2019. Petitioner was the successful bidder at the sale, and a Referee's Deed was executed on December 17, 2019.

Petitioner claims in their Affirmation in Opposition that a Notice to Quit/Vacate was served on December 16, 2021. They attach an affidavit of service that shows this December date. However Petitioner does not attach a copy of the notice that was allegedly served on December 16, 2021. Petitioner filed a Notice of Petition and Petition - Holdover with this Court on March 24, 2022 ("the Holdover Petition"). Attached to that Petition is a copy of a Notice to Vacate dated November 18, 2021. The Notice to Vacate is addressed to the same parties listed in the caption of this proceeding.

The first page of the Notice to Vacate is titled "Ten (10) Day Notice to Vacate". The Notice provides that the recipient(s) of the Notice either produce evidence that they are entitled to the protections of Real Property Actions and Proceedings Law ("RPAPL") § 1305 or they are required to vacate the Premises within 10 days of service of the notice, that date being handwritten into the notice as February 12, 2022 (said date comporting with service that would have been completed on February 2, 2022).

The second page of the Notice to Vacate has two sections. The first section is titled "Notice of Foreclosure & Tenant's Rights Under New York RPAPL § 1305". This section informs the recipient of the Notice, inter alia, that RPAPL § 1305 grants certain rights to occupants who are tenants, including "the giving of 90-day Notice to Vacate or the right to remain until your lease expires...." Again, demand is made that the recipient of the notice "provide evidence to show that the occupant is entitled to the protection of New York RPAPL § 1305."

The second section on the second page is titled "Alternative Ninety (90) Day Notice". Here, the recipient of the Notice is purportedly given "the Ninety (90) Day Notice to Vacate as required by New York law (for tenants)." The Notice continues, "Pursuant to New York RPAPL §1305, all tenants must vacate the property by May 3, 2022", the date, again, being filled in by hand with the date comporting with service that would have been completed on February 2, 2022. In point of fact, an affidavit of service indicating that service was completed on February 2, 2022, is annexed to the Notice to Vacate.

In view of the foregoing, the Court is constrained to disregard Petitioner's allegation that an undisclosed Notice to Vacate was served on December 16, 2021, in favor of the Notice that was served on February 2, 2022, said Notice being attached to the Petition filed with the Court.

As noted above, neither Ms. Bober nor Ms. Rem is specifically named in the Notice to Vacate. Similarly, they are not specifically named in the Holdover Petition.

Ms. Bober appeared in court on the initial return date and requested an adjournment to retain counsel. Counsel has appeared in this proceeding on behalf of Ms. Bober and Ms. Rem and moved this Court to dismiss the Holdover Petition contending that the Notice to Vacate is defective because it contains alternative periods within which to vacate; the Petition was served prematurely; and Petitioner failed to join necessary parties to this proceeding.

Both Respondents submitted affidavits with their motion. As noted above, in her affidavit, Margaret Bober states that she entered into a written month-to-month lease for the Premises with Elizabeth Giannetto. She attaches a copy of the lease. The monthly rent payable by the tenant to the landlord was established at $1,500. Ms. Bober also asserts that she has lived at the Premises since she signed her lease; her driver's license lists the Premises as her address; and she receives mail there. Eva Rem states in her affidavit that she is Ms. Bober's mother; she resides at the Premises with Ms. Bober (although she does not state when she moved in); and that "[a]t one point in time as part of a tenancy agreement with the prior owner, Elizabeth Giannetto, [she] paid in excess of $50,000 for property taxes and use and occupancy at the subject property" (no date of payment or proof of payment was given).

As will be addressed herein, while the Respondents are presently represented by the same attorney and they have put forward the same arguments, it is clear to the Court that the rights and claims of Ms. Bober and Ms. Rem are incongruous.

Procedural Irregularities

As a prefatory matter, the Court is constrained to address the deficiency of the movants' application. Civil Practice Law and Rule ("CPLR") § 2214(a) spells out the requirements for creating a Notice of Motion - the time and place of the hearing; relief sought; etc. must be included in this notice. A "motion" can be dismissed if proper notice of the motion is not given. Glass Capital Ventures v Abdul-Malik, 2019 NY Misc. LEXIS 11293 (Sup Ct, Queens County 2019).

Furthermore, the Holdover Petition was not annexed to the Respondents' papers rendering the motion procedurally deficient pursuant to CPLR § 2214(c). It is axiomatic that this Court is unable to determine whether the Petitioner's Petition is legally sufficient so as to withstand dismissal without a copy of the actual pleading before it. See generally, Alizio v Perpignano, 225 A.D.2d 723 (2d Dept 1996); Thompson v Iannucci, 50 Misc.3d 1226(A), 2015 NY Slip Op 51984(U) (Sup Ct, Ulster County 2015).

The foregoing having been stated, this Court will not dismiss the motion because of a procedural defect as the delay would ultimately prejudice the Petitioner. [1]

Conclusions of Law
The Validity of the Notice to Vacate

In their motion to dismiss, the Respondents contend that a combined 10-day and 90-day notice to vacate "is not legally recognized", however there is a plethora of case law that speaks to the contrary. See e.g., Wilmington Trust, N.A. v Holmes, 68 Misc.3d 1220 (A), 2020 NY Slip Op 51033(U) (Civ Ct, Queens County 2020). It is not unreasonable for a buyer at foreclosure to cast a wide net in a Notice to Vacate so as to cover all possible types of occupants since they will not likely have precise knowledge of who is residing in the house and their legal relationship, if any, to the Premises. The Court finds that the combined 10-day/90-day Notice to Vacate is not defective because it makes provision for alternate dates by which the occupant(s) must vacate the Premises.

Respondents also take issue with the fact that the Notice to Vacate purportedly required them to prove they were tenants by supplying evidence of their status to the Petitioner, without which, they would be required to vacate the Premises within ten (10) days of receipt of the Notice to Vacate. Respondents, citing Bank of Am., N.A. v Owens, 28 Misc.3d 328, 2010 NY Slip Op 20164 (City Ct, Rochester County 2010), argue that the Protecting Tenants at Foreclosure Act ("PTFA") provides protections for tenants and the Petitioner cannot impose additional obligations that are not provided in the statute. This Court concurs. In accordance with the PTFA there is no obligation for the Respondents to respond to a questionnaire and prove tenant status.

That said, the question remains: Are the Respondents "tenants" pursuant to RPAPL § 1305 and/or the PTFA?

Status as "Tenant" and Timeliness of Petition

The protections of both RPAPL § 1305 and the PTFA are available to protect tenants of foreclosed properties in New York. See e.g. 956 Rogers Ave NDB LLC v Blair, 67 Misc.3d 403, 2020 NY Slip Op 20047 (Civ Ct Kings County 2020).

Under the PTFA, a person is a" bona fide tenant" if: (1) neither the mortgagor nor his family member is the tenant; and (2) the tenancy was the result of an arm's length transaction; and (3) the monthly rent (unless it is subsidized rent) is not substantially less than the property's fair market value. PTFA § 702(b). The PTFA provides that all" bona fide tenants" residing in foreclosed residential real property are entitled to at least 90 days' advance notice of their obligation to vacate the premises before they can be evicted. (See PTFA § 702 [a]).

The definition of "tenant" contained in RPAPL § 1305 is as follows:

"Tenant" shall mean any person who appears as a lessee on a lease of one or more dwelling units of a residential real property that is subordinate to the mortgage on such residential real property; or who at such time is a party to an oral or implied rental agreement with the mortgagor and obligated to pay rent to the mortgagor or such mortgagor's representative, for the use or occupancy...

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