Affidavits in Support of Defaults in Eviction Proceedings

, New York Law Journal

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Susan Avery
Susan Avery

In a summary nonpayment proceeding commenced in Housing Court, a petitioner seeking entry of judgment, based upon a tenant's failure to appear or answer, must submit a proper affidavit attesting to the facts of the default, Brusco v. Braun, 199 AD2d 27 (1st Dept. 1993) aff'd 84 NY2d 674 (1994). Contrary to this requirement, it has been this author's experience that attorneys for petitioners routinely submit and resubmit, insufficient affidavits, resulting in denials of such applications, wasted resources and delays in processing cases. As an affidavit which fails to contain proof in evidentiary form is prima facie insufficient to support the entry of a default judgment, State v. Williams, 73 AD3d 1401 (3d Dept. 2010), it is crucial that a petitioner seeking the entry of a default judgment so that a default warrant of eviction may issue, support its application upon a proper affidavit of merit.

Entry of default judgments are generally governed by Civil Practice Law and Rules (CPLR) §3215(f) (Siegel, New York Practice §295). However, CPLR §3215(f) is inconsistent with Real Property Actions and Procedure Law (RPAPL) §732(3) which provides that in nonpayment summary proceedings "[i]f the respondent fails to answer within five days from the date of service…of the notice of petition and petition, the judge shall render judgment in favor of the petitioner…" RPAPL §732(3) controls in nonpayment summary proceedings, as it abrogates the less "specific statute (CPLR §101 [CPLR 'shall govern…except where the procedure is regulated by inconsistent statute']; McKinney's Cons Laws of NY, Statutes §397 'A special statute…in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies'" Brusco, 84 NY2d 674 (1994). Therefore "a judge has no discretion to withhold entry of a default judgment pursuant to RPAPL §732(3) when a petition, proper in form and substance, demonstrates grounds for relief…" Brusco, at 676.

Affidavit Requirement

Notwithstanding RPAPL's mandatory language, "[requiring] '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 [is appropriate]"…. "[As, g]iven the statistics cited in [Matter of Park Holding v. Arber1] regarding the frequency with which summary proceedings are discontinued…the submission of such an affidavit at the time default judgment is requested is a procedure which has much to commend it" Brusco, 199 AD2d 27, aff'd 84 NY2d 674, see also Bldg Mgt. v. Vision Quest of Flatbush, 1 Misc3d 681 (Civ Ct Kings Co. 2003); CPLR §409.

Indeed, "[a]n application for a final judgment upon a respondent's nonappearance is not a request for the performance of a ministerial act…movant is not automatically entitled to [the] relief sought, regardless of defects in…allegations or proof… Neither is a Judge obliged to grant relief, merely because it is not opposed. Rather, a Judge must exercise discretion to determine whether the relief sought is merited…." East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund v. Serrano, 153 Misc2d 776 (Civ Ct N.Y. Co. 1992). Accordingly, the application must be supported by a sworn statement, containing proof, in evidentiary form, "and nothing in the Brusco decision relieves the Civil Court of its obligation to review the papers for facial sufficiency prior to entering a default final judgment" Kentpark Realty v. Lasertone, 3 Misc3d 28 (App Term 2nd Dept. 2004).

While a petition verified by an attorney and/or on information and belief, satisfies RPAPL §741, an application for entry of a default judgment must be supported by an affidavit sworn to "on personal knowledge." Citing Sella Props. v. DeLeon, 25 Misc3d 85 at 87 (App Term 2nd Dept. 11th & 13th Jud Dists 2009), the Appellate Term ruled in 1081 Flatbush Ave. v. Jadoo, 34 Misc3d 136 (App Term 2nd Dept. 11th & 13th Jud Dists 2011): "[s]ince there was no…petition or affidavit [based upon personal knowledge], the court should properly have declined to enter a default final judgment upon the motion papers before it without prejudice to renewal of the application upon proper papers."

Citing Sella, supra, Justice Fern A. Fisher, in the exercise of her authority as Deputy Chief Administrative Judge,2 issued a directive requiring "[a]pplications for default judgment[s in summary nonpayment proceedings]…be accompanied by an affidavit from a person with personal knowledge….Applications…not accompanied by an affidavit from a person with personal knowledge should be returned with a notation [to renew] with the appropriate affidavit" Civil Court Directive DRP 191A Category: LT-20, dated July 14, 2010, ¶¶2 and 3. Therefore, the issue for courts and practitioners, is the content of a proper affidavit to support the application.

Affiant's Personal Knowledge

The affidavit submitted to support the default must substantiate the basis for the affiant's "personal knowledge" of the petitioner's rent payment recording procedures, such that, if called upon, the affiant can authenticate petitioner's records (rent ledgers) as true and accurate documents, kept in the ordinary course of petitioner's business, CPLR §4518(a).

To lay a foundation for the admissibility and authenticity of a document, CPLR §4518(a) requires a demonstration that the record was made in the regular course of business and reflected a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, that it was the regular course of business to make the records, such that they were made according to established procedures for the routine, habitual, systematic making of such a record, and made at the time of the acts, transactions, occurrences or events described therein, or within a reasonable time thereafter, Matter of Leon RR, 48 NY2d 117 (1979).

The affidavit must state the affiant's relationship to the petitioner and responsibilities relative to the premises, such that the affiant has personal knowledge of the petitioner's business (rent payment) recording practices, Matter of Carothers v. GEICO Indem., 79 AD3d 864 (2d Dept. 2010), as, depending on the issue, individuals possessing the same business titles have been held to possess or not to possess sufficient personal knowledge of the facts asserted, such as: "managing agent" Miller v. City of New York, 253 AD2d 394 (1st Dept. 1998) cf. Juniper Walk Condominium v. Patriot Mgt., 3 Misc3d 748 (City Ct White Plains 2004); "business/property owner" Kg2 v. Weller, 105 AD3d 1414 (4th Dept. 2013) cf. MLB v. Schmidt, 50 AD3d 1433 (3d Dept. [2008]); "secretary" Acosta v. Trinity Lutheran Church, 12 Misc3d 1175(A) (Sup Ct Kings Co. 2006) cf. Ace Wire & Cable v. Aetna Cas. & Sur., 89 AD2d 131 (2d Dept. 1982); "principal" Ruocco v. L-K Bennett Enterprises, 31 Misc3d 1214(A) (Sup Ct Orange Co. 2011) cf. Plattekill Mountain Ski Chalet v. Ski Plattekill, 100 AD3d 1094 (3d Dept. 2012); and "employee" Magenta Medical v. Clarendon Nat. Ins., 37 Misc3d 139(A) (App Term 1st Dept. 2012) cf. GBI Acupuncture v. Esurance Ins., 38 Misc3d 1208(A) (Civ Ct Kings Co. 2012).

Thus, it is insufficient for the affiant to merely state a "specific job title," "possession of personal knowledge" or "compliance with CPLR §4815(a)" Viviane Etienne Med. Care v. Country-Wide Ins., 31 Misc3d 21 (App Term 2nd Dept. 2011), citing Matter of Carothers v. GEICO, supra. The affiant must state his or her actual job responsibilities to demonstrate actual first-hand personal knowledge of the facts asserted, Barraillier v. City of New York, 12 AD3d 168 (1st Dept. 2004). Additionally, common sense is helpful, as a superintendent may have actual knowledge of events occurring at the premises, yet possess no personal knowledge about recording rent payments and therefore would be incompetent to testify about a respondent's default in the payment of rent, Farchester Gardens by Pritch v. Elwell,138 Misc2d 562 (City Ct Westchester Co. 1987).

The affiant does not have to be the individual who actually created the business record (ledger); it is sufficient that the affiant have general knowledge of the office practice for creating and maintaining documents, Nassau Ins. v. Murray, 46 NY2d 828 ([1978]), or supervisory responsibilities, GBI Acupuncture v. Esurance Ins., 38 Misc3d 1208(A) (Civ Ct N.Y. Co. 2012), or obtained knowledge of the recorded events from someone with actual knowledge, who had a business duty to relay information regarding the events, Matter of Leon RR, infra.

Therefore, the affiant must demonstrate how the affiant knows the petitioner's business practices and state the precise documents that the affiant reviewed to support the conclusion that respondent(s) remain(s) in rental arrears as claimed in the petition. Such documents should be annexed as exhibits to the application, Re- public Natl. Bank of NY v. Luis Winston, 107 AD2d 581 (1st Dept. 1985).

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