769 EAST LLC v. John Doe, et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered August 15, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its ejectment cause of action, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its ejectment cause of action by submitting evidence that it owned the subject one-family property and that defendant was occupying the second floor without its consent (see 247 E. 32nd LLC v. Gasparich, 95 A.D.3d 790, 791, 945 N.Y.S.2d 300 [1st Dept. 2012], lv denied 20 N.Y.3d 984, 958 N.Y.S.2d 697, 982 N.E.2d 617 [2012]).  Plaintiff's ownership of the property was presumptively established by its submission of a certified copy of the recorded deed transferring the property from Wilmington Savings Fund Society, FSB, to plaintiff in April 2019 (see Southern Assoc., Inc. v. United Brands Co., 67 A.D.2d 199, 202–203, 414 N.Y.S.2d 560 [1st Dept. 1979];  see also Manhattan Life Ins. Co. v. Continental Ins. Cos., 33 N.Y.2d 370, 372, 353 N.Y.S.2d 161, 308 N.E.2d 682 [1974];  Matter of Myers v. Key Bank, 68 N.Y.2d 744, 746, 506 N.Y.S.2d 327, 497 N.E.2d 694 [1986]).  Plaintiff also submitted an affidavit with evidence showing that the person who signed the deed on behalf of Wilmington's servicer was authorized.  In opposition, defendant did not submit any evidence sufficient to rebut the presumption of plaintiff's ownership of the property.  Defendant questioned the authority of the person who signed the deed on behalf of Wilmington, which acquired the property in a foreclosure sale, and argued that the certificate of conformity on the affidavit failed to comply with CPLR 2309.  The authority of the servicer to act for Wilmington as attorney in fact is set forth in the judgment confirming the Referee's report in the foreclosure action.  To the extent the certificate of conformity did not comply, that is “a mere irregularity, and not a fatal defect” (Wager v. Rao, 178 A.D.3d 434, 435, 113 N.Y.S.3d 63 [1st Dept. 2019] [internal quotation marks omitted]), and did not prejudice defendant (see Citimortgage, Inc. v. Zagoory, 198 A.D.3d 715, 717, 155 N.Y.S.3d 424 [2d Dept. 2021]).

Plaintiff contends on appeal that it was not required to serve defendant with a 30–day notice of termination in an ejectment action, but that it nevertheless did so.  Assuming that such predicate notice was required in a common-law ejectment action when the defendant is a tenant at will or by sufferance (Real Property Law § 228;  compare Southside Dev. Co. v. Mitchell, 156 A.D.2d 268, 269, 548 N.Y.S.2d 656 [1st Dept. 1989];  Hsiu v. Trujillo, 192 Misc.2d 147, 150–152, 744 N.Y.S.2d 652 [Sup. Ct., Bronx County 2002], with Gerolemou v. Soliz, 184 Misc.2d 579, 580, 710 N.Y.S.2d 513 [App. Term, 2d Dept. 2000]), defendant admits that he actually received a 30–day notice of termination served at his property.  He also received notices of plaintiff's intent to terminate his tenancy through the prior unsuccessful holdover petitions to remove him.  Under these circumstances, dismissal based on insufficiency of the notice of termination would not be warranted (see Trump Plaza Owners, Inc. v. Weitzner, 47 A.D.3d 525, 526, 849 N.Y.S.2d 554 [1st Dept. 2008];  East 82 LLC v. O'Gormley, 295 A.D.2d 173, 174, 743 N.Y.S.2d 473 [1st Dept. 2002]).