Goldman Bros. v. Forester
| Decision Date | 18 March 1970 |
| Parties | GOLDMAN BROS., Petitioner, v. Laura FORESTER, Respondent. |
| Court | New York City Court |
Leon M. Sena, New York City, for petitioner.
Ernest Holzberg, New York City, for respondent.
The petition and notice of petition, upon which this non-payment summary proceeding for the possession of residential premises is based, are jurisdictionally defective and cannot be cured by amendment.
Although the title of the proceeding states that Goldman Bros. is the petitioner and the petition states that it is the petition of Goldman Bros. the petition is not subscribed or verified by Goldman Bros. While it is true that a summary proceeding may be brought by an agent of the landlord, if it is, the petition must then be that of the agent, subscribed and verified by him. In the case at bar the petition of Goldman Bros. is subscribed and verified by one Steven Ball who alleges that he is the agent for Goldman Bros. who is the landlord and owner of the premises.
The notice of petition states that it is based upon the petition of Steven Ball and not on the petition of Goldman Bros.
The notice of petition and petition were not filed within three days after they were served upon the respondent as required by Sec. 733(3) Real Property Actions and Proceedings Law nor was this defect ever cured by a nunc pro tunc order pursuant to Sec. 411 N.C.C. CCA.
The name of the affiant was omitted from the printed verification form, but a printed clause stating that the verification was being made by the affiant and not by the landlord because the landlord was a corporation and the affiant an officer thereof, was not deleted. Goldman Bros. is not a corporation.
At the trial, neither Steven Ball nor Goldman Bros. testified. Instead the attorney for the petitioner who claimed also to be his agent took the stand and furnished the only testimony on behalf of the petitioner, a practice frowned upon by the courts (Canon 19 of the Canons of Professional Ethics Judiciary Law Appendix; Siefring v. Marion, 22 A.D.2d 765, 253 N.Y.S.2d 619). Suffice it to say that not only was there no testimony that Steven Ball was Goldman's agent who was authorized to make and file the petition herein, but it was conclusively proven that Goldman Bros. was not even the owner or landlord of the premises:
The proof was that Newport Associates, Inc. is the owner and landlord of the premises and that Theodore A. Schichtol is its managing agent. There was no proof as to Steven Ball's connection with the premises or Goldman Bros.
Real Property Actions and Proceedings Law Sec. 741(1) provides that the petition shall state the interest of the petitioner in the premises from which removal is sought. This section was not complied with in that the petition does not state either Goldman's or Ball's interest in the premises.
Real Property Actions and Proceedings Law Sec. 741(4) provides that the petition shall state the facts upon which the special proceeding is based, so that issues, if there be any, are properly raised and can be met. An allegation that there was due the landlord 'arrears of 827,02' without alleging the underlying facts upon which this conclusion is based does not comply with the statutory requirement.
Although the petition states that Steven Ball, as agent for the landlord entered into the leases with the respondent as tenant there was no proof that Steven Ball entered into the lease with tenant in any capacity.
While the petition stated that Goldman Bros. was bringing the proceeding as the owner and landlord of the premises, there was no such proof. Goldman Bros. was in fact the lessor of the premises by virtue of two written leases...
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