Security Pacific Nat. Trust Co. v. Cuevas

• Decision Date: 05 May 1998
• Citation: 675 N.Y.S.2d 500,176 Misc.2d 846
• Parties: , 1998 N.Y. Slip Op. 98,300 SECURITY PACIFIC NATIONAL TRUST COMPANY, Petitioner, v. Teodora CUEVAS, et al., Respondents.
• Court: New York City Court

Page 500

675 N.Y.S.2d 500

176 Misc.2d 846, 1998 N.Y. Slip Op. 98,300

SECURITY PACIFIC NATIONAL TRUST COMPANY, Petitioner, v. Teodora CUEVAS, et al., Respondents.

Civil Court of the City of New York Kings County.

May 5, 1998.

Zeichner Ellman & Krause, New York City, for petitioner.

Teodora Cuevas, respondent pro se.

SUE ANN HOAHNG, Judge.

In this summary holdover proceeding, the petitioner-landlord, Security Pacific National Trust Company (hereinafter "Security Pacific") seeks possession of the premises at 442 Jamaica Avenue, second floor rear unit, Brooklyn, New York. Further, Security Pacific sues respondents-tenants Teodora Cuevas, Ingrid Cuevas a/k/a Ingrid Cubas, Jeovanny Soto, Frank Soto, Mary Soto, Deryck Seeram, Nandrannie Seeram, Jeanette Gopee, Sookdee Gopee, and Pantranee Bansi (hereinafter "respondents") for the use and occupancy at a rate of $1,863.01 per month for the period February, 1998 to April, 1998, plus a balance of $240.40 from January, 1998.

The case was scheduled to be heard on April 6, 1998. The landlord appeared represented by counsel and the tenant appeared pro se. The court apprised the landlord's attorney that the petition was defective on its face and that the petition would be dismissed due to the defects. The Court then informed the respondents of the defects and, in an effort to settle the proceeding, asked if they would waive the jurisdictional defects. The respondents declined and the court informed Security Pacific that the petition would be dismissed due to the defects.

In a summary holdover proceeding, the petitioner must allege in the petition the regulatory status of the premises. See, RPAPL 741(3) (the petition must "[d]escribe the premises from which removal is sought"), and 741(4) (the petition must "[s]tate the facts upon which the special proceeding is based"). Further, it is this court's responsibility to examine the pleadings of every proceeding that is to be adjudicated to ensure that the pleadings are in "strict compli[ance] with the statutory requirements" of the applicable law to confer jurisdiction upon the Court. See, MSG Pomp Corp. v. Doe, 185 A.D.2d 798, 799-800, 586 N.Y.S.2d 965, 966 (1992). Therefore, "the Court is required to make a summary determination upon the pleadings, papers, and admissions, CPLR 409(b)." In the Matter of Brusco v. Braun, 199 A.D.2d 27, 32, 605 N.Y.S.2d 13 (1993). (Emphasis added).

This proceeding was commenced upon two separate grounds: RPAPL § 713(5) and RPAPL § 713(7). We dispose of the second ground, summarily, by noting that RPAPL § 713(7) authorizes a holdover to be commenced against licensees who are no longer entitled to possession, "provided however, that a mortgagee ... in possession shall not be deemed to be a licensee within the meaning of this subdivision." RPAPL § 713(7) Petitioner alleges it purchased the subject property pursuant to foreclosure sale and now seeks to evict the mortgagee respondents. As petitioner's pleadings allege the respondents are mortgagees in possession, the cause of action based upon RPAPL § 713(7) cannot stand.

A review of the pleadings in light of petitioner's remaining argument, predicated upon RPAPL § 713(5), indicates that the notice to cure served upon respondents failed to include a copy of the deed, properly certified in accordance with CPLR § 2105, as required by RPAPL § 713(5). A proper termination notice in this case is necessary to the subject matter jurisdiction of the court and is incurable retroactively. The New York Infirmary-Beekman Downtown Hospital v. Sarris, 154 Misc.2d 798, 588 N.Y.S.2d 748 (Civ.Ct.N.Y.1992).

Petitioner, Security Pacific National Trust Co., alleges they purchased the subject property, 442 Jamaica Avenue, second floor rear unit, Brooklyn, New York, pursuant to foreclosure sale on January 28, 1998. Subsequently, petitioner served a 10 day notice to quit upon respondents. Annexed to the 10 day notice to cure was a copy of the referee's deed. This deed was three pages in length and purported to be a certified deed. The certification appeared in the middle of the second page of the document, not on the last page, and the attorney's signature certifying it was a copy of a signature, not an original.

The first issue presented is whether a copy of an authenticating signature comports with the requirements of CPLR § 2105. RPAPL § 713(5) provides a holdover action may be maintained, where "the property has been sold in foreclosure and the deed delivered pursuant to such sale or a copy of such deed, certified as provided in the Civil Practice Law and Rules, has been exhibited to [the respondents]." (Emphasis added).

The CPLR section concerned with an attorney's certification, CPLR § 2105 states Where a certified copy of a paper is required by law, an attorney admitted to practice in the courts of the state may certify that it has been compared by him with the original and found to be a true and complete copy. Such a certificate, when subscribed by such attorney, has the same effect as if made by a clerk.

The deed in question certainly bears a certification. The issue, however, is whether the legislature intended to allow a facsimile of a signature to stand in for the original. This Court first addresses this issue by noting that the statute is silent on whether a facsimile of a signature may take the place of an original. Second, there is a dearth of caselaw on the subject of CPLR § 2105 in general, and no cases discussing this issue in particular.

Lacking aid from the face of the statute or caselaw, we look to interpret the statute by looking at its terms, its history, and by comparison with other similar statutes. CPLR § 2105 allows a certified document to be admitted when that document has been "subscribed by such attorney...." The term "subscribe", though not defined definitively in regards to the CPLR, has been discussed in numerous cases involving wills (Re Marques, Surr.Ct. 123 N.Y.S.2d 877, Re Winters, 277 App.Div. 24, 98 N.Y.S.2d 312, aff'd 302 N.Y. 666, 98 N.E.2d 477) and criminal prosecutions (People v. Coldiron, 77 Misc.2d 102, 355 N.Y.S.2d 518 (1974)). In Coldiron, the court states "the word 'subscribe' in its habitual use, and according to both popular and literary signification, is limited to a signature at the end of a printed or written instrument." James v. Patten, 6 N.Y. 9, 13.

Towards identifying a rationale for the legislative requirement that certain documents be subscribed, the Coldiron court stated:

Presumably, the underlying purpose of the legislature in requiring that a memorandum be 'subscribed' is the same as that in the case of wills, ... namely to prevent fraud through insertion or additions to a writing subsequent to its execution.

People v. Coldiron, 77 Misc.2d at 104, 355 N.Y.S.2d at 521, citing 56 New York Jurisprudence, Statute of Frauds, 220.

Looking to other statutes which also require a document to be subscribed, the Coldiron Court noted that, with regard to CPLR § 2106, "the courts have taken a firm position that the formal requirements be complied with by disallowing the use of a rubber stamp for a signature, Sandymark Realty Corp. v. Creswell, 67 Misc.2d 630, 324 N.Y.S.2d 504, and in not allowing 'the mere typing' of the attorney's name to suffice the dictates of the statute (Macri v. St. Agnes Cemetery, 44 Misc.2d 702, 255 N.Y.S.2d 278)."

This Court notes CPLR § 4540, concerning authentication of official records, which specifically allows an official of the state to certify an official document by signing it or "with a facsimile of the signature of the clerk...." However, this...