U.S. Bank Nat'l Ass'n v. Thi Van Tran
Decision Date | 03 October 2019 |
Docket Number | LT-003391-19 |
Citation | 110 N.Y.S.3d 532,65 Misc.3d 965 |
Parties | US BANK NATIONAL ASSOCIATION, not in it's Individual Capacity but Solely as Trustee for Maroon Plains Trust, Petitioner(s), v. THI VAN TRAN aka Thi Tran ; Cho Tran; "John" "Doe 1-2", "Jane" "Doe 1-2", Respondent(s). |
Court | New York District Court |
Knuckles, Komosinski & Manfro, LLP, attorneys for Petitioner
William D. Friedman, Esq., attorney for Respondent Thi Van Tran
Scott Fairgrieve, J. Petitioner U.S. Bank National Association commenced this holdover proceeding against Respondent Thi Van Tran a/k/a Thi Tran.
The Petition, dated July 8, 2019, alleges that it acquired title to the subject premises located at 632 Arthur Street, Garden City, New York via Judgment of Possession and Sale and Referee's Deed.
Paragraphs 7 and 8 of the Petition state Respondent Thi Van Tran was served as follows:
Respondent Thi Van Tran moves for an "order to dismiss the petitioner against Mattie Jackson pursuant to CPLR 3211(a) and (7) and RPAPL 741 for such other relief as the Court deems just and proper." This court excuses the mistake in reference to Mattie Jackson and assumes that Thi Van Tran is making the motion to dismiss.
Respondent states that RPAPL 713(5) requires that Respondents be served with a "certified deed" but a photocopy is legal. See Plotch v. Dellis , 60 Misc. 3d 1, 75 N.Y.S.3d 779 (App. Term, 2nd & 9th Jud. Dist.). Respondent states that an original certification of the deed must be filed with the court after service of the photocopy of same.
Respondent avers that since Petitioner failed to file an original certification, this summary proceeding must be dismissed. This constitutes a jurisdictional defect.
Petitioner submits the affirmation of Daria M. Gold, Esq., dated September 17, 2019. It is submitted that Petitioner obtained title to the premises on October 30, 2018.
Petitioner states that Respondent Thi Van Tran was served with a 90 Day Notice to Vacate, together with the attorney certified Referee's Deed and Limited Power of Attorney by suitable age and discretion service upon co-occupant Cho Tran. Furthermore, it is averred that Respondent Thi Van Tran was served by substitute service with the 10 Day Notice to Vacate, together with the attorney Referee's Deed and Limited Power of Attorney upon the co-occupant Cho Tran.
Petitioner contends that Plotch v. Dellis was concerned with two issues:
Petitioner states that it complied with the holding of Plotch by service of a certified copy of the certification of the deed by an attorney admitted to practice in New York pursuant to CPLR 2105. The method of service upon Thi Van Tran is not contested by Respondent.
Petitioner contends that the holding of Plotch does not require a filing of an original certification. Thus, Petitioner concludes that no jurisdictional issue is involved. Any failure to file the original is a de minimis defect which can be cured by "Petitioner producing such original upon request of the court or the Respondent, or through production at trial."
The Reply of Respondent, dated October 23, 2019 contends that Plotch requires an original certificate be filed with the court and that failure to do so is jurisdictional.
This court agrees with Petitioner, that the failure to file the original certification of the deed pursuant to the requirements of CPLR 2105 is not a jurisdictional defect requiring dismissal.
In Plotch the Court held the following:
As can be gleaned from the above, service of the photostatic copy of the deed was upheld because the original certification of the deed by the attorney was filed with the Court.
In the case at bar, Petitioner failed to file the original certification.
Petitioner contends that it is not jurisdictional for its failure to file the original certification, and that it should be allowed to correct this mistake. Respondent counters that the failure to file the certification is jurisdictional mandating dismissal.
This court believes that the failure to file the original certification is not a jurisdictional defect and may be corrected by the Petitioner by filing the original certification.
In Hall v. Bray , 61 Misc. 3d 921, 86 N.Y.S. 3d 393 (Bronx Co., Sup. Ct., 2018), the plaintiff failed to file an affidavit of compliance and other documents required by Vehicle and Traffic Law Section 253. The defendant moved for summary judgment to dismiss the action because the failure to file the affidavit of compliance and other documents constituted a jurisdictional defect requiring dismissal of the action on statute of limitation grounds. The Court rejected the defendant's argument that failure to file was jurisdictional. The Court held the failure to file the documents required by VTL § 253 was a procedural irregularity and could be corrected by the filing of the documents.
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