Sella Props. v. DeLeon

Decision Date06 October 2009
Docket Number2008-2002 K C.
Citation25 Misc.3d 85,2009 NY Slip Op 29408,890 N.Y.S.2d 254
PartiesSELLA PROPERTIES, Appellant, v. PAULETTE DeLEON, Doing Business as BEST BUY FURNITURE'S, Respondent.
CourtNew York Supreme Court — Appellate Term
OPINION OF THE COURT MEMORANDUM.

Ordered that the order dated September 12, 2008 is modified by providing that landlord's motion is granted to the extent of vacating so much of the August 4, 2008 order as, on the court's own motion, dismissed the petition, and by further providing that the denial of landlord's application for a default final judgment is without prejudice to renewal upon proper papers; as so modified, the order is affirmed without costs and the matter is remitted to the Civil Court for all further proceedings.

In this commercial nonpayment summary proceeding, landlord served tenant with a notice of petition and petition, verified by its attorney, on June 23, 2008. Tenant failed to answer or appear. On July 29, 2008 landlord applied for a default final judgment in its favor. By order dated August 4, 2008, the Civil Court denied the application and sua sponte dismissed the petition, finding that landlord had failed to attach its rent demand to the petition. Landlord subsequently moved to, inter alia, vacate the prior order and enter a default final judgment in its favor, asserting that it had stated in its petition that rent had been demanded personally. By order dated September 12, 2008, the Civil Court denied the motion, noting that an oral rent demand is permissible pursuant to RPAPL 711 but apparently finding that the demand was not sufficiently alleged because the petition was verified by landlord's attorney. By notice of appeal dated October 22, 2008, landlord appealed from the August 4, 2008 order, which we deem to be an appeal from the September 12, 2008 order (see CPLR 5512 [a]).

RPAPL 741 expressly allows a legal representative or attorney to verify a petition in a summary proceeding to recover real property. RPAPL 741 (4) requires the petition to state the facts upon which the special proceeding is based. As noted by the Civil Court, RPAPL 711 allows a landlord to maintain a nonpayment proceeding when "a demand for rent has been made," an allegation contained in the petition. Accordingly, the Civil Court erred in sua sponte dismissing the petition, and further erred in declining to vacate the dismissal.

However, while a...

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24 cases
  • 1425 U LLC v. Heyward
    • United States
    • New York Civil Court
    • February 27, 2017
    ...Civil Court Directive DRP–191–A ("Entry of Default Judgments", eff. Date July 14, 2010, citing Sella Properties v. DeLeon (25 Misc.3d 85, 890 N.Y.S.2d 254 [App Term 2nd Dep't 2009] ); and see generally Brusco v. Braun (199 A.D.2d 27, 605 N.Y.S.2d 13 [1st Dep't 1993], aff'd, 84 N.Y.2d 674, 6......
  • 77 Commercial Holding, LLC v. Cent. Plastic, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • December 22, 2014
    ...not support the petition by submitting an affidavit executed by someone with personal knowledge of the facts (see Sella Props. v. DeLeon, 25 Misc.3d 85, 890 N.Y.S.2d 254 [App.Term, 2d, 11th & 13th Jud.Dists.2009], the holding of which has been incorporated into Civil Court directive DRP–191......
  • 1346 Park Place HDFC v. Wright
    • United States
    • New York Supreme Court — Appellate Term
    • March 18, 2016
    ...notice to cure. It is well settled that a petition can be verified by an attorney pursuant to RPAPL 741 (see Sella Props. v. DeLeon, 25 Misc.3d 85, 890 N.Y.S.2d 254 [App.Term, 2d Dept, 2d, 11th & 13th Jud.Dists.2009] ). Consequently, since the petition in this case was verified by landlord'......
  • Walton Ave. Realty Assocs. LLC v. Soriano
    • United States
    • New York Civil Court
    • February 6, 2017
    ...Civil Court Directive DRP–191–A ("Entry of Default Judgments", eff. Date July 14, 2010, citing Sella Properties v. DeLeon (25 Misc.3d 85, 890 N.Y.S.2d 254 [App Term 2nd Dep't 2009] ); and see generally Brusco v. Braun (199 A.D.2d 27, 605 N.Y.S.2d 13 [1st Dep't 1993], aff'd, 84 N.Y.2d 674, 6......
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