Oehlrich v. Rosas

This is a holdover summary proceeding to recover possession of real property located at 69 Cottage Street, Apt. #2, Middletown, New York 10940 (“the Property”); the proceeding is brought purportedly by Peter W. Oehlrich (“the Petitioner”) against Guadeloupe Rosas, John Doe, and Jane Doe (“the Respondents”; the individual Respondents will be referred to as “Rosas,” “John Doe,” and “Jane Doe”). The Petitioner, by his attorney, Christopher J. Smith, Esq. (“Attorney Smith”), filed a Notice of Petition and Petition with the Court on June 5, 2019 and set June 11, 2019 as the return date. On June 11, 2019, the Petitioner appeared in Court by Attorney Smith and Emanuel Guzman (“Guzman”), the Petitioner’s purported property manager. Rosas appeared on that day with Sandra Dos Santos, Esq. (“Attorney Dos Santos”), Staff Attorney with Legal Services of the Hudson Valley. Accompanying Rosas was Salia Gonzalez (“Gonzalez”), who identified herself as Rosas’ daughter and as the “Jane Doe” noted in the Petitioner’s papers, and the Court supplied an interpreter for Rosas. Attorney Dos Santos requested the opportunity to submit a motion to dismiss the Petition, and the Court set down a schedule for the submission of the motion, any opposition papers by the Petitioner, and any reply papers by the Respondents, with the motion deemed fully submitted by July 2, 2019. The Court adjourned this action to July 9, 2019 at 9:30 a.m. for a decision on the motion and further proceedings, if required; the Court also directed the parties to appear on July 9th. The Court has received all papers from the parties, the motion has been fully submitted, and it is now ready for decision.The Court read the following papers on the motion:Notice of Respondents’ Motion to Dismiss    1Affirmation with exhibits by Attorney Dos Santos (“Dos Santos Affirmation”)             2Affidavit by Gonzalez, with exhibits (“Gonzalez Affidavit”)            3Affirmation with exhibits by Attorney Smith (“Smith Affirmation”) 4Reply Affirmation by Attorney Dos Santos      5AMENDED DECISION AND ORDER¹INTRODUCTIONTHE PARTIES’ ARGUMENTS The Respondents moved to dismiss the Petition based on the following: 1) the Petitioner failed to properly serve the Respondents as required by RPAPL §735 (1); 2) the verification of the petition failed to comply with CPLR §§3020 and 3021; 3) the Petitioner failed to provide descriptions for John Doe and Jane Doe as required by CPLR §1024; 4) the Petitioner knew the identities of John Doe and Jane Doe and failed to use those identities as required by CPLR §1024; and 5) the Petitioner accepted rent after the termination date of the lease and thereby failed to provide a proper predicate notice as required by RPAPL §711 (3). The Court will summarize the Respondents’ arguments and the Petitioner’s responses below.The Respondents, through the Dos Santos Affirmation and the Gonzalez Affidavit, assert that the Petitioner improperly served the Notice of Petition and Petition on the Respondents because those documents were delivered directly to Gonzalez, presumably as “a person of suitable age and discretion who resides…at the property sought to be recovered” (RPAPL §735 [1]), but the Petitioner did not mail copies of the Notice of Petition and Petition to the Respondents by registered or certified mail² as required by the statute. Gonzalez stated she was the occupant of the Property who would receive and/or review any correspondence sent to the Property because she is Rosas’ oldest child and Rosas speaks little to no English,³ and Gonzalez claims no copies of the Notice of Petition and Petition were received at the Property. Exhibit A of the Dos Santos Affirmation also shows that the USPS online tracking service shows no delivery of the Notice of Petition and Petition to Rosas under certified mail tracking number 7015 3090 0000 7690 6604, which was the tracking number shown on the Affidavit of Service of the Notice of Petition and Petition on Rosas. Furthermore, the Affidavits of Service of the Notice of Petition and Petition on John Doe and Jane Doe show the Notice of Petition and Petition were delivered to Gonzalez and mailed by first class mail only without an additional mailing by registered or certified mail, contrary to the requirements of RPAPL §735 (1).With respect to the verification of the Petition, the Respondents note that Guzman signed and verified the Petition as the Petitioner but failed to submit an affidavit, as required by CPLR §§3020 and 3021, as to why Guzman verified the Petition instead of the named Petitioner, Peter W. Oehlrich.The Respondents also challenged the reference to John Doe and Jane Doe as Respondents. In essence, the Respondents assert that due process requires a petitioner to describe any “Doe” in a pleading so that such party can be reasonably apprised of the action and given an opportunity to be heard. Furthermore, the Respondents assert the Petitioner knew that Gonzalez (now twenty years old) and her two brothers have lived at and occupied the Property with Rosas for almost ten years and that the Petitioner communicated directly with Gonzalez, and has met with Gonzalez, many times over the last five years with respect to issues at the Property. As a result, according to the Respondents, the Petitioner should have identified at least Gonzalez as the Jane Doe noted in the Petition; because the Petitioner did not, the Petition fails to comply with CPLR §1024. Once the Petitioner chose to name John Doe and Jane Doe as Respondents, the Petitioner had an obligation to attempt to ascertain the true identity of John Doe and Jane Doe.The Respondents’ last point is that the Petitioner served a termination notice on the Respondents with an effective date of May 31, 2019 but accepted the June rent after the termination date and prior to the commencement of this action. Gonzalez noted that the Orange County Department of Social Services (“DSS”) pays the Respondents’ entire monthly rent of $1,100.00 and attached, as Exhibit D to the Gonzalez Affidavit, proof that DSS caused the payment of $1,100.00 for June rent to be directly deposited into the Petitioner’s account on June 1, 2019. As such, the Respondents assert that by accepting the June rent, the Petitioner’s termination notice is a nullity.Attorney Smith denied the Respondents’ assertions regarding service of the Notice of Petition and Petition. He claims the Respondents used the wrong tracking number for the certified mailing to Rosas and submitted USPS tracking information showing that notice of the certified mailing was left at the Property on June 10, 2019. The tracking number for that mailing, however, was 7018 3090 0000 7690 6604, not 7015 3090 0000 7690 6604 as described in the Affidavit of Service of the Notice of Petition and Petition on Rosas. He also noted that the Affidavit of Service was presumptive evidence that service was properly made, and that the applicable statute does not require proof of actual receipt.⁴The Petitioner disputes the notion that there was any need to identify or even make an effort to identify John Doe and/or Jane Doe. The Smith Affirmation claims that Rosas’ children were not named on any lease (although there was no written lease) and were not tenants (although the Petitioner admits they were Rosas’ family members and occupied the Property). The Smith Affirmation also claims that it would be “frankly absurd” if Gonzalez and her brothers did not realize they were, as noted in the Smith Affirmation, targets of this action.With respect to the claimed inadequacy of the verification of the Petition, the Petitioner claims Guzman is the agent for the Petitioner as shown in City of Middletown records attached as Exhibit C to the Smith Affirmation; as such the Petitioner and Guzman “are essentially one and the same,” and Guzman can verify the Petition on behalf of the Petitioner.Finally, the Petitioner claims because the June rent was automatically deposited into the Petitioner’s account, that does not act as an acceptance of the June rent and does not waive the effectiveness of the termination notice.⁵DISCUSSIONThe Petitioner’s Affidavit of Service of the Notice of Petition and Petition on Rosas, on its face, shows compliance with the requirements of RPAPL §735 (1). The Affidavit of Service as submitted creates a presumption that service was properly effected on Rosas (First Avenue Owners Corp. v. Riverwalk Garage Corp., 6 Misc. 3d 439, 442 [Civ Ct, New York County 2004]). Gonzalez’s claim that neither she nor, apparently, Rosas received the mailed copies of the Notice of Petition and Petition is not significant, because “[t]he mere denial of receipt of service ‘is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service’ [citation omitted]” (id.; see also HSBC Mortgage Corporation (USA) v. Dickerson, 150 AD3d 968, 968-969 [2d Dept 2017], lv dismissed 30 NY3d 1101 [2018]; Bank of New York v. Krausz, 144 AD3d 718, 718-719 [2d Dept 2016] [the latter two cases both involved the presumption of proper service of court papers as shown by an executed affidavit of service under CPLR §308]).Although the Affidavit of Service regarding Rosas on its face is acceptable⁶, the Affidavits of Service on John Doe and Jane Doe (“Doe Affidavits”) are not. Once the Petitioner chose to include John Doe and Jane Doe as named Respondents, the Petitioner had to insure that proper service was made on both John Doe and Jane Doe. The Doe Affidavits show the Notice of Petition and Petition were served on John Doe and Jane Doe by delivering those documents to Gonzalez, presumably a person of suitable age and discretion. However, the Doe Affidavits fail to satisfy the requirements of RPAPL §735 (1) in two ways: first, nothing in the Doe Affidavits indicate Gonzalez is “a person of suitable age and discretion who resides…at the property sought to be recovered”; and second, even if the Petitioner overcame that hurdle, the Doe Affidavits fail to show the Notice of Petition and Petition were served by registered or certified mail in addition to the claimed first class mail service. As a result, service on John Doe and Jane Doe did not satisfy the strict requirements of RPAPL §735 (1).The Doe Affidavits are insufficient for another reason: they fail to show the Petitioner exercised due diligence in ascertaining the real names of John Doe and Jane Doe. This is particularly egregious when one considers the fact that the Petitioner not only knew the names of at least two of the occupants other than Rosas (Rosas’ twenty year old daughter and at least one of Rosas’ sons), but the Petitioner also had a number of interactions over the years with those two occupants. As noted by the court in Redstone Garage Corp. v. New Breed Automotive, Inc., 54 Misc 3d 126(A), 2016 NY Slip Op 51776(U) *1 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016) in vacating a judgment and warrant issued against an occupant listed as “XYZ Corp.,” a fictitious name, “[i]f the plaintiff knows, or reasonably should know, the defendant’s true name, an unknown party designation in the summons will generally be treated as a jurisdictional defect [citation omitted], and the failure to exercise due diligence to ascertain the defendant’s true name subjects the complaint to dismissal as to that party [citation omitted]. In addition, the unknown party must be described in such form as will fairly apprise the party that it is the intended defendant [citations omitted].” Accord RR Reo II, LLC v. Omeje, 33 Misc 3d 128(A), 2011 NY Slip Op 51848(U) *2 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011) (“‘In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party…’[citation omitted]…. ‘An insufficient description subjects the [John] Doe’ [sic] complaint to dismissal for being jurisdictionally defective’ [citation omitted]“; the petitioner/landlord failed to exercise due diligence in ascertaining the proper name of occupants before using the procedure authorized by CPLR §1024; judgment and warrant of eviction against “John Doe” vacated).As a final matter, the Petition itself is defective. The named Petitioner is Peter W. Oehlrich, yet the first line of the Petition states “[t]he Petition of EMANUEL GUZMAN, alleges as follows.” Guzman is described in the Petition as the “registered property manager of” the Petitioner, yet Guzman signed and verified the Petition in the name and guise of the Petitioner, stating in the verification that “[t]he undersigned [Guzman] is the Petitioner.” In addition, there is no affidavit accompanying the verification indicating why the Petitioner himself did not verify the Petition, as required by CPLR Rule 3021. As the court observed in Ferro v. Lawrence, 195 Misc 2d 529, 530 (2d Dept 2002), “[a] landlord’s attorney/agent is not a person authorized to initiate a summary proceeding in his or her own name, a defect that is not cured by captioning the proceeding in the name of a proper party in interest [citations omitted].” See also Carroll Street Properties v. Velez, 59 Misc 3d 134(A), 2018 NY Slip Op 50493(U) *1 (App Term, 2d Dept 2018) (agent cannot commence a summary proceeding in her own name as agent for a partnership landlord).Because John Doe and Jane Doe were not properly served with the Notice of Petition and Petition, and because the Petition itself is defective, the Court does not need to address the other issues raised by the Respondents’ motion.DECISIONNow, upon reading and considering the Notice of Petition and Petition, the Affidavits of Service of the Notice of Petition and Petition, the Respondents’ motion with supporting papers seeking dismissal of the Petition, the Petitioner’s papers in opposition, all exhibits, and all prior proceedings, it isORDERED, that the Respondents’ motion to dismiss the Petition is granted.The foregoing constitutes the Decision and Order of this Court.Dated: July 10, 2019Middletown, New York