City Court of Poughkeepsie, June 6, 2018

Legal Services of the Hudson Valley, Poughkeepsie (Vinita Kamath of counsel), for Zakiyyah Salahuddin, also known as Zakiyyah Slahuddin, respondent.

The Margolin & Weinreb Law Group, LLP, Syosset (Jennifer L. Bernstein of counsel), for petitioner.

On April 6, 2018, respondent tenant, Zakiyyah Salahuddin, filed a pro se order to show cause seeking an order vacating{**60 Misc 3d at 1001} the default judgment and warrant of eviction entered by this court on January 10, 2018. Respondent also seeks an order dismissing the petition, and reinstating respondent to possession of the premises. Respondent's application is based upon the claim that she was never served with the paperwork to appear, and her meritorious defense was that she was never given a copy of her deed showing that petitioner foreclosed on the property. The matter was returnable on April 11, 2018, at which time both parties appeared by counsel, and the court gave them time to submit memorandums of law in support of their respective positions. On April 17, 2018, respondent, represented by Vinita Kamath, Esq., of Legal Services of the Hudson Valley, filed a memorandum in support of the respondent's application to dismiss on grounds that (1) the deed was not properly exhibited in the post-foreclosure summary eviction proceeding; and (2) the 10-day notice to quit was signed by an attorney-in-fact who did not have [*2]authority to commence an eviction proceeding against the respondents. On April 26, 2018, Ms. Kamath filed a letter with the court providing a recent case petitioner's counsel sent to her, which supported petitioner's claim that the deed was properly exhibited: Plotch v Dellis (60 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).^[FN*] On April 27, 2018, petitioner filed an affirmation in opposition of Jennifer L. Bernstein, Esq., together with exhibits A-F, arguing that (1) the deed was properly exhibited to respondents; (2) respondent should be precluded from raising a new argument not set forth in the order to show cause, i.e., the 10-day notice; and (3) notwithstanding, petitioner argues that the 10-day notice served on respondents properly commenced the eviction proceeding. On May 1, 2018, petitioner filed an additional affirmation in opposition of Jennifer L. Bernstein, Esq., dated May 1, 2018, together with exhibits A-B in further opposition to respondent's application.

Petitioner owns the subject premises following a foreclosure action. Respondents were the former owners and mortgagors of the foreclosed premises. Respondents do not have a lease with petitioner to occupy the premises. The petitioner filed a summary eviction proceeding against the respondents on December 15, 2017, seeking their removal after the foreclosure sale of premises located at 110 Hudson Avenue, Poughkeepsie, New{**60 Misc 3d at 1002} York 12601. The matter was scheduled to be heard on January 10, 2018, whereupon a default judgment for possession was entered when respondents failed to appear. On February 20, 2018, the Dutchess County Sheriff duly executed the warrant of eviction and turned over legal possession of the subject premises to petitioner. All personal property was moved curbside on the eviction date. Approximately three months after judgment was entered, and approximately 11/2 months after the Sheriff effectuated the eviction, respondent, Zakiyyah Salahuddin, filed the instant pro se order to show cause seeking an order vacating the judgment and warrant, dismissing the petition, and reinstating the respondents to possession. This court having examined the notice of petition, petition, affidavits of service, contents of the court file, and all of the papers and proceedings heretofore held, and having duly deliberated, finds and determines the motion as follows:

[1] The general rule of law is that, upon a showing of good cause, a court can vacate a warrant of eviction prior to execution (RPAPL 749 [3]; see generally Sutter Houses v Diaz, 203 NYLJ 105 [App Term, 2d Dept, 2d & 11th Jud Dists 1990]). However, here, the warrant was already executed. Respondent seeks vacatur of the default judgment as well. A party requesting vacatur of a default judgment must show an acceptable excuse for the default and an absence of willfulness, as well as a meritorious defense to be successful in obtaining vacatur (CPLR 5015 [a] [1]; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; O'Loughlin v Delisser, 15 AD3d 372 [2d Dept 2005]). Here, respondent's motion fails to set forth a reasonable excuse with convincing proof for her failure to appear in court on the scheduled date, and fails to successfully challenge service of the notice and petition. In sum and substance, she merely avers that she never received notice, due to "a major problem with our postal system. I live in a private house across the street from a housing development that share[s] [*3]the same address. Most times I get their mail they get mine, and nothing has been done about this." Yet, the affidavits of service bear a presumption of validity, and the process server averred, in this matter, that he not only mailed the notices, but that he also affixed the notices to the respondents' door (white house with a white door).

The general rule of law is that a process server's affidavit constitutes prima facie evidence of proper service (Carro v Rojas, 16 AD3d 450 [2d Dept 2005]; Matter of Nazarian v Monaco{**60 Misc 3d at 1003} Imports, 255 AD2d 265 [1st Dept 1998]; Fairmount Funding v Stefansky, 235 AD2d 213 [1st Dept 1997]). A sworn non-conclusory denial of service with detailed and specific contradictions to the statements made in the process server's affidavit is necessary to dispute the veracity or content of the affidavit and warrant the holding of a traverse hearing (Zion v Peters, 50 AD3d 894 [2d Dept 2008]; Dunn v Pallett, 42 AD3d 807 [3d Dept 2007]). Here, the process server's affidavit complies with all of the requirements of RPAPL 735. Respondent's summary conclusion that she "never received documents asking me to appear" is not a reasonable excuse to vacate the default, nor does this statement sufficiently dispute the veracity or content of the affidavits of service. In light of the foregoing deficiencies, this court need not reach the issue of whether the respondent has set forth a meritorious defense to the claim. Nothwithstanding, respondent has not established a meritorious defense to vacate the judgment. Indeed, the purported defect in the notice to quit was demonstrated to be meritless by the Plotch case provided to this court by respondent (Plotch).

A. Proper Exhibition of the Deed

Respondent seeks vacatur of the judgment and warrant, and dismissal of the petition on the grounds that petitioner failed to properly exhibit the deed when they did not personally serve respondents with the deed. Respondent is wrong.

[2] RPAPL 713 (5) provides that a special proceeding may be maintained under this article

"after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: . . .

"5. . . . the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him" (emphasis added).

Here, the deed was served upon respondents by nail and mail service, and a default judgment was entered when they failed to appear. Personal service of the deed is not required to meet the statutory requirements for notice. Petitioner properly exhibited the deed when it served a certified copy of the deed upon respondents by nail and mail service (Plotch v Dellis, 60 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In particular, the Appellate Term in the Plotch case reversed a lower court's decision dismissing a petition on these{**60 Misc 3d at 1004} very grounds, holding that "[w]e are persuaded that service by means other than personal delivery of a certified copy of the deed, i.e., service of a certified copy of the deed which is left at the premises for the respondent to retain and examine, satisfies the exhibition requirement" (Plotch v Dellis, 60 Misc 3d at 4-5 [emphasis added]). As such, respondent's motion to dismiss for failure to properly exhibit the deed is denied.

B. Ten-Day Notice to Quit Signed by an Attorney-in-Fact Who Has No Authority to Commence an Eviction Proceeding against the Respondent

Petitioner contends that respondent has raised new arguments for the first time seeking relief in her memorandum of law that is additional to that sought in the moving papers. No such argument was ever made in the order to show cause papers. This court agrees (HCE Assoc. v [*4]3000 Watermill Lane Realty Corp., 173 AD2d 774 [2d Dept 1991]; Willette v Willette, 53 AD3d 753, 754-755 [3d Dept 2008]; see Madden v Town of Greene, 95 AD3d 1426, 1427 [3d Dept 2012]). But even if this argument had been raised in the moving papers brought on by respondent's order to show cause, it still fails.

The law provides that a special proceeding may be maintained after a notice to quit has been served upon the respondent in the manner prescribed by statute in RPAPL 735. (See RPAPL 711 [2].) Failure to strictly comply with the various statutory requirements related to a summary proceeding cannot be cured by an amendment without prejudicing the respondent and decrying the intent of the RPAPL (see generally Riverside Syndicate, Inc. v Saltzman, 49 AD3d 402 [1st Dept 2008]). Here, petitioner's notice to quit properly commenced the eviction proceeding and was properly served.

[3] Respondent argues that the judgment and warrant be vacated and the petition dismissed on the grounds that the 10-day notice to quit is signed by a purported attorney-in-fact for the petitioner, who has no authority to commence an eviction proceeding against the respondent. Respondent contends that where a notice to quit is signed by a party other than the petitioner, it must be accompanied by a power of attorney or other proof of agency (see e.g. Siegel v Kentucky Fried Chicken of Long Is., 108 AD2d 218 [2d Dept 1985]), and where a power of attorney is attached to the notice to quit, the power of attorney must specifically enumerate the power to commence eviction proceedings or other proceedings for possession (DLJ Mtge. Capital, Inc. v Grant, 51 Misc 3d 908 [Nassau Dist Ct{**60 Misc 3d at 1005}2016]). Petitioner opposes the motion on the grounds that the attorney-in-fact had authority to commence the action via the functions conveyed in the power of attorney document attached to the notice to quit. This court agrees, and finds the Siegel case to be inapposite, while the DLJ Mtge. case is not binding. (Siegel; DLJ Mtge. Capital, Inc.)

The Siegel case had factual peculiarities set forth in the lease that provided for certain rights to be exercised and enjoyed by either the landlord or the landlord's agents, and in the case of the default provision, only the landlord had the authority to serve the required notice of default or termination. (Siegel.) So, when the attorney (or for that matter anyone other than the landlord) signed the notice to quit, they did so without the requisite authority, thereby invalidating the notice to quit that sought to terminate the tenancy. The facts in this case are in stark contrast to those in Siegel.

The Siegel holding is not applicable here, for there are no lease provisions that contain factual peculiarities that were present in Siegel, because there is no lease between the parties. Moreover, respondents do not even have permission to occupy the premises, nor have they paid rent to petitioner for their use and occupancy of the premises. There's no mutual agreement between the parties to lease the premises, and the power of attorney that was attached to the eviction proceedings enumerates a variety of broad powers, which convey powers that inherently include execution of a notice to quit with exhibition of deed on behalf of the petitioner, as part and parcel to the powers enumerated within. Importantly, the notice served upon respondents conveyed a clear announcement that the attorney-in-fact had authority to carry out any function necessary for claims related to the mortgage, the foreclosure, the taking of a deed in lieu of foreclosure, etc., whether specifically contemplated or not, and whether ancillary or not to effectuate possession, including eviction of the respondents. The notice served was accompanied [*5]by the actual power of attorney, and has language that the respondents could safely rely upon in concluding that they must surrender possession (QPII-143-45 Sanford Ave., LLC v Spinner, 34 Misc 3d 14 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The notice was not invalid simply because it was signed by an attorney-in-fact instead of the landlord (see QPII-143-45 Sanford Ave., LLC v Spinner; Port Royal Owners Corp. v Navy Beach Rest. Group, LLC, 57 Misc 3d 13 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).

{**60 Misc 3d at 1006}Therefore, based upon the foregoing, it is now ordered that respondent's motion to vacate the judgment and warrant is denied; and it is further ordered that respondent's motion to dismiss the petition is denied; and it is further ordered that respondent's request to be reinstated with possession of the premises is denied; and it is further ordered that all stays be immediately lifted.