The short answer: NO DEFAULT JUDGEMENTS SHOULD BE GRANTED UNLESS PETITIONER PROVIDES AN AFFIDAVIT FROM SOMEONE WITH PERSONAL KNOWLEDGE OF THE FACTS. Most Petitions are verified only by an attorney and ARE NOT ENOUGH TO GET ANY JUDGEMENT.
My question is: when will ALL HCJ's follow this rule? This is not the first long decision discussing this issue since Brusco... Do we really have to wait for a higher court to affirm this decision?
(emphasis added)
Fairfield Presidential Assoc. v. Samuel
2004 N.Y. Slip Op. 51064(u)
N.Y.City Civ.Ct. 2004.
Decided on September 24, 2004
2004 WL 2147017 (N.Y. Civ.Ct.), 2004 N.Y. Slip Op. 51064(U)
This opinion is uncorrected and will not be published in the printed Official
Reports.
Digest-Index Classification:
Landlord and Tenant--Summary Proceedings Judgments--Default Judgment
*1 FAIRFIELD PRESIDENTIAL ASSOC.,
v.
SOLOMON SAMUEL, Respondent.
L&T 83939/04
Civil Court of the City of New York, Kings County
Decided on September 24, 2004
APPEARANCES OF COUNSEL
Petitioner was represented by Gutman, Mintz, Baker & Sonnenfeldt, of New Hyde Park, New York. Respondent was pro se.
OPINION OF THE COURT
Ellen Gesmer, J.
This summary proceeding appeared on the residential nonpayment calendar in Resolution Part C on August 30, 2004. When the respondent-tenant failed to appear, the petitioner applied for entry of a possessory money judgment. Petitioner's application is denied, with leave to renew.
The petition is verified solely by the petitioner's attorney and is alleged entirely "on information and belief." The verification states that "the grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: statements and/or records provided by petitioner, its agents and/or employees and contained in the file in the attorney's office." Consequently, the person who verified the petition does not have personal knowledge of any of the statements in the petition.
In order to determine whether the documents submitted are adequate to support entry of a default judgment, the Court must determine the source of its authority to enter a default judgment in this case. If the tenant had not filed an Answer, entry of a default judgment would be governed by Real Property Actions and Proceedings Law ("NY RPAPL") §732(3), which is applicable to the New York City Civil Court under 22 NYCRR § 208.42 (d).
In this case, the tenant filed an Answer, but failed to appear on the trial date. Consequently, NY RPAPL §732 does not apply, so the entry of a default judgment in this case is governed by the general provision governing entry of default judgments, CPLR §3215 (Brusco v Braun, 84 NY2d 674, 681 [1994]). In Brusco, the Court of Appeals was faced with the question of whether a judge confronted with an application for a default judgment under NY RPAPL §732 may hold an inquest before deciding whether to enter the requested judgment. In deciding that the judge may not do so, the Court specifically held that CPLR §3215 does not apply to applications for default judgments in nonpayment proceedings where the tenant has defaulted in answering because that situation is specifically governed by NY RPAPL §732, and therefore held, by implication, that CPLR §3215 does govern all other applications for default judgments under Article 7 of the NY RPAPL, since there is no other section that sets out a specific procedure for the entry of default judgments (Brusco, 84 NY 2d at 681). This is also consistent *2 with the New York City Civil Court Act, which provides that default judgments in the New York City Civil Court may be entered as provided in CPLR §3215 (see NY City Civil Court Act §1402).
CPLR §3215 requires that an application for a default judgment be based on an affidavit of a party or a verified complaint (see CPLR 3215 [f]). In interpreting this provision, the Appellate Division for the Second Department has held that a "complaint verified by counsel amounts to no more than an attorney's affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215." (Hazim v Winter, 234 AD2d 422 [2d Dept1996]; see also Finnegan v Sheahan, 269 AD2d 491 [2d Dept 2000]; Goodyear v Weinstein, 224 AD2d 387 [2d Dept 1996]). Even where the attorney is permitted by statute to verify the initial pleading, a pleading verified only by the attorney cannot serve as a basis for the entry of a default judgment when the attorney lacks personal knowledge of the facts constituting the claim (Joosten v Gale, 129 AD2d 531, 534 [1st Dept 1987]). In Joosten, although the attorney had properly verified the complaint under CPLR §3020 (d)(3), since his client was not in the county where the attorney maintains his office, the Court held that the complaint verified solely by the attorney could not serve as the basis for the entry of a default judgment. The Appellate Division went on to explain:
CPLR §3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some first hand confirmation of the facts. Here, plaintiff failed to meet even that minimal standard. His complaint, verified as it is by his attorney, is pure hearsay, utterly devoid of evidentiary value.
(Joosten, 129 AD2d 531 at 535). The same result must obtain here, since the petitioner has provided this Court with no first hand confirmation of the facts. Indeed, it is clearly important in a case such as this one where what is at stake, as the Court of Appeals has recognized, is that "tenants are not unjustly evicted from their homes." (Brusco, 84 NY2d at 681). Moreover, there is clearly a significant potential for error if the Court were to enter judgment without first hand verification of the facts underlying the petition since the respondent has in this case asserted two substantive defenses, that petitioner owes him money because of a rent overcharge and that the rent has been paid. Consequently, the Court cannot enter a default judgment based on the record before it.
Even if NY RPAPL §732 applied in this case, the Court would reach the same result. In Brusco, the Court of Appeals held that the trial court, when faced with an application for a default judgment under NY RPAPL §732, must ascertain that the petition is "proper in form and substance [and] demonstrates grounds for relief and the supporting papers establish proper service on the tenant." (Brusco, 84 NY2d at 679); see also Homestead Equities v Washington, 176 Misc2d 459, 463 [Civ Ct, NY County 1998]). In Brusco, the Court of Appeals specifically noted twice in its decision that, in the case before it, there was an adequate showing for entry of a default judgment since the petition had been verified on personal knowledge ( Brusco,84 NY2d at 681).*3
The Appellate Division decision in Brusco also specifically noted that the petition in that case had been personally verified by the petitioner. (Brusco, 199 AD2d 27, 31 [1st Dept 1993]). It then went on to distinguish the situation before it from that at issue in Park Holding Co. v Arber, 145 Misc. 2d 39 (Civ Ct, NY County 1989). The issue in that case, as in Brusco, was the trial court's practice of holding inquests in every nonpayment case where the tenant had failed to file an answer. The Appellate Division noted that, while the trial court had been wrong to hold an inquest, it had been correct in refusing to enter a default judgment since the petition had been verified only by the attorney. The Appellate Division explained:
While RPAPL 741 permits a petition to be verified by the attorney for the landlord, it is well settled that an affidavit of counsel is of no probative value for purposes of summary determination ( Hasbrouck v City of Gloversville, 102 AD2d 905, 477 N.Y.S.2d 486, affd 63 NY2d 916, 483 N.Y.S.2d 214, 472 N.E.2d 1042; Farragut Gardens No. 5 v Milrot, 23 AD2d 889, 260 N.Y.S.2d 597) unless accompanied by documentary evidence (Zuckerman v City of New York, 49 NY2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). While the facts in Park Holding (supra) do not justify inquest, the facial insufficiency in the pleadings and accompanying affidavits did warrant 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 (CPLR 409 [a]).
(Brusco, 199 AD2d at 32). Similarly, in this case, even if NY RPAPL§732 governed, the Court could not enter a default judgment since the petitioner failed to submit an affidavit of a person with personal knowledge of the facts. Consequently, the requirements established by the Court of Appeals for the entry of a judgment on default have not been met. (Brusco, 199 AD2d at 33; Bldg Mgmt. Co. v Vision Quest, 1 Misc3d 681, 684 [Civ Ct, Kings County 2003]).
As the Appellate Division pointed out, where the petition is not proper or there is inadequate proof of service, a court ruling on an application for a default judgment under RPAPL §732(3) may properly require more proof under CPLR §409(a) (Brusco,199 AD2d at 33). Consistent with that, the Court gave petitioner's counsel the opportunity to submit, by September 13, 2004, an affidavit of an individual with personal knowledge to support the application for a default judgment. Counsel has failed to submit such an affidavit to the Court or to submit any memorandum explaining its failure to do so.
Accordingly, the application for a default judgment is denied, with leave to renew upon proper papers.
Dated: September 24, 2004
___________________________
ELLEN GESMER
Judge, Civil Court
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.
N.Y.City Civ.Ct. 2004.
Fairfield Presidential Assoc. v Samuel
END OF DOCUMENT
Copr. (C) 2004 West. No Claim to Orig. U.S. Govt. Works.
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