BLDG MANAGEMENT CO INC v. VISION QUEST OF FLATBUSH (2003)

DECISION AND ORDER

 In each of these commercial nonpayment proceedings, Petitioner applies for a judgment of possession pursuant to RPAPL 732(3) by reason of the tenant's failure to answer.   Although the Petitions differ in structure and pertinent language, each is verified only by an attorney based on information and belief.   None of the applications are accompanied by any other affidavit or affirmation, with the consequence that none of the allegations of any of the Petitions is sworn to or affirmed to be true by anyone with personal knowledge.   In this respect, these applications, which constitute four of the six applications submitted to this judge on a recent day in the appropriate part, resemble a significant majority of the applications for judgment of possession regularly submitted for his determination.   Finding the attorney verification insufficient to support a judgment of possession and warrant, the Court denies each of the applications, with leave to renew.

This opinion will not address whether the verifications in these Petitioners comply with RPAPL 741 and, to the extent required, CPLR 3020 and 3021;  nor will it address whether any defect in the verification would preclude entry of a default judgment.  (See, generally, Genesee Gateway Houses, Inc. v. Khalid, 2003 N.Y. Slip Op 50809[U], 2003 WL 21014857 [Rochester City Ct.];  Ft. Holding Corp. v. Otero, 157 Misc.2d 834, 598 N.Y.S.2d 908 [Civ. Ct., N.Y. County 1993];  Zirinsky v. Violet Mills, Inc., 152 Misc.2d 538, 578 N.Y.S.2d 88 [Civ. Ct., Queens County 1991];  Cucinotta v. Saljon Enterprises, Ltd., 140 Misc.2d 681, 532 N.Y.S.2d 39 [Civ. Ct., N.Y. County 1988];  Lefrak v. Robinson, 115 Misc.2d 256, 454 N.Y.S.2d 571 [Mount Vernon City Ct. 1982];  S.P.S.G. Inc. v. Collado, 113 Misc.2d 167, 448 N.Y.S.2d 385 [Civ. Ct., N.Y. County 1982].)

In Brusco v. Braun, 199 A.D.2d 27, 605 N.Y.S.2d 13 [1st Dept. 1993], aff'd 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994], the First Department considered the authority of a judge to schedule an inquest following the tenant's default in answering a nonpayment proceeding.   Authority for the inquest was claimed to flow from CPLR 3215(b), which establishes the procedure before the court for obtaining a default judgment generally, and which permits the court to “make an assessment or take an account of proof.”   A provision in the RPAPL that specifically governs nonpayment proceedings, however, states that, upon the tenant's failure to answer, “the judge shall render judgment in favor of petitioner.”  (RPAPL 732[3].)

“Applying the rules of statutory construction to the conflicting provisions”, the First Department concluded that “it is clear that CPLR 3215 is inconsistent with, and thus superceded by, the provisions of RPAPL 732.”   (Brusco v. Braun, 199 A.D.2d at 31, 605 N.Y.S.2d 13.)   Although the inconsistency identified in Brusco was created by the provision for inquest in subsection (b) of CPLR 3215, the First Department appears to hold that no provision of CPLR 3215 is applicable to summary proceedings.   Specifically, the court's treatment of prior case law clearly indicates that subsection (f) of CPLR 3215 does not apply.  (See id.)

 CPLR 3215(f) requires that an application for a default judgment be supported by “proof by affidavit made by the party of the facts constituting the claim ․ and the amount due”, but a “verified complaint ․ may be used as the affidavit.”   An application for default judgment pursuant to CPLR 3215 is properly denied when based upon a complaint verified only by an attorney, rather than upon an affidavit of facts or a complaint verified by someone with personal knowledge of the facts.  (See Drake v. Drake, 296 A.D.2d 566, 745 N.Y.S.2d 712 [2d Dept. 2002];  Fiorino v. Yung Poon Yung, 281 A.D.2d 513, 721 N.Y.S.2d 803 [2d Dept. 2000];  Finnegan v. Sheahan, 269 A.D.2d 491, 703 N.Y.S.2d 734 [2d Dept. 2000].)  “[A] complaint verified by counsel amounts to no more than an attorney's affidavit and is therefore insufficient to support entry of judgement pursuant to CPLR 3215.”   (Mullins v. DiLorenzo, 199 A.D.2d 218, 219-20, 606 N.Y.S.2d 161 [1st Dept. 1993].)

 Even though, however, CPLR 3215(f) may not be applicable, “[t]he standards governing motions for summary judgment are applicable to special proceedings generally ․, of which the summary proceeding to recover possession of real property is a species.”  (Brusco v. Braun, 199 A.D.2d at 31-32, 605 N.Y.S.2d 13.)   On summary judgment, the “bare affirmation” of an attorney, which is not based upon personal knowledge of the facts, is “without evidentiary value.”  (See Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Feratovic v. Lun Wah, Inc., 284 A.D.2d 368, 368-69, 725 N.Y.S.2d 892 [2d Dept. 2001] ).   The “information and belief” of the attorney adds nothing (see Henriquez v. Purins, 245 A.D.2d 337, 338, 666 N.Y.S.2d 190 [2d Dept. 1997];  Wood v. Nourse, 124 A.D.2d 1020, 1021, 509 N.Y.S.2d 223 [4th Dept. 1986] ), even when based upon the attorney's review of the client's file (see Park Health Center v. Green Bus Lines Inc., 2002 N.Y. Slip Op 40029[U], *3, 2002 WL 416484 [App. Term 2nd & 11th Jud. Dists.] ).   The record before the court in Brusco “reveal[ed] no defect in the supporting papers.   The petition was personally verified by the owner.”  (Brusco v. Braun, 199 A.D.2d at 31, 605 N.Y.S.2d 13.)

 The result is that a court's refusal to enter a default judgment in a nonpayment proceeding when the application is supported only by a petition verified by the petitioner's attorney is sustainable.  (See Brusco v. Braun, 199 A.D.2d at 32, 605 N.Y.S.2d 13.)  “While RPAPL 741 permits a petition to be verified by an attorney for the landlord, it is well settled that the affidavit of counsel has no probative value for purposes of summary determination ․ unless accompanied by documentary evidence.”  (Id.)  The court may require the “submission of ‘additional proof’ in the form of an affidavit from someone in the position of landlord or managing agent, attesting to the amount of rent currently due and owing.”  (Id. [quoting cplr 409(a) ].)  in light of “STATIstics ․ regarding the frequency with which summary proceedings are discontinued because rent has been tendered or the matter otherwise settled ․, the submission of such an affidavit at the time default judgment is requested is a procedure which has much to commend it.”   (Id.)

The Court Appeals affirmed the First Department in Brusco, also relying on the inconsistency between CPLR 3215(b) and RPAPL 732(3).  (See Brusco v. Braun, 84 N.Y.2d at 681, 621 N.Y.S.2d 291, 645 N.E.2d 724.)   The Court did not address verification of a petition by an attorney, but twice noted that the petition in the case before it was verified on personal knowledge by the landlord.  (See id., at 678, 681, 621 N.Y.S.2d 291, 645 N.E.2d 724.)   As characterized in a subsequent opinion, the Court ruled that judges “lack[ ] the discretionary legal authority ․ to fashion ․ an additional procedural safeguard, as a matter of policy, for the benefit of defaulting tenants in a rental nonpayment eviction proceeding, beyond the policy choices made by the Legislature in this regard.”  (Mennella v. Lopez-Torres, 91 N.Y.2d 474, 479, 672 N.Y.S.2d 834, 695 N.E.2d 703 [1998].)

The notion that judicial action be based upon facts sworn to or affirmed to be true on personal knowledge, or found to exist from otherwise admissible evidence, is not merely an “additional procedural safeguard, as a matter of policy.”   It is a pervasive characteristic of our judicial process, and of long-standing rules of practice and procedure, contributing substantially to legitimacy.   No reason commends itself to suggest that the Legislature intended to withdraw from the scope of such a fundamental precept judicial action of such serious consequence as judgments and warrants of eviction.

JACK M. BATTAGLIA, J.