Post Foreclosure Eviction | Zoning | Marriage Gift

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New Law on “Exhibition” in Post-Foreclosure Action

New Law on “Exhibition” in Post-Foreclosure Action

In Plotch v. Dellis the Appellate Term, Second Department, 2nd, 11th & 13th Judicial Districts, recently revisited its 2011 decision in Home Loan Servs., Inc. v. Moskowitz, which made it difficult for landlords to prosecute post-foreclosure summary proceeding against occupants who “ducked” presentment of the referee’s deed. Not anymore.

New York State’s Real Property and Proceedings Law (“RPAPL”) Section 713 allows for a holdover summary proceeding, and provides, in pertinent part:

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…. [T]he 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.

Here, the petitioner seeking to dispossess the occupants appealed from an order granting the occupants’ motion to dismiss the petition against them and denying the owner’s cross-motion for summary judgment as moot.

According to the decision, the owner personally served a notice to quit on one of the occupants, Maria Moundrakis, at the premises, and made what is called “substituted service” on the other occupants, Nikki Moundrakis and John Dellis, with a referee’s deed copy annexed to the notice. Then, after attempts at personal service failed, a notice of petition and petition were served on
the occupants by what is referred to as “conspicuous-place” or “nail and mail” service.

The Moundrakis’ argued that service of process was defective and substituted service could not fulfill RPAPL §713(5) requirement of exhibiting a certified referee’s deed. The Civil Court dismissed the petition finding petitioner failed to show the deed was “exhibited” to Maria. On appeal, the Appellate Term found a copy of the deed was not only shown, but placed in Marias hand satisfying the “exhibition” requirement. Also, it agreed with petitioner’s claim that service other than by personal delivery of a certified copy of a deed satisfied the “exhibition” requirement, reversing the order, denying Moundrakis dismissal, and granting petitioner’s cross-motion.

In so doing, the Court had to first revisit its 2001 decision on the same issue. “In Home Loan Servs., Inc. v. Moskowitz (31 Misc. 3d 37 [App. Term, 2d Dept., 2d, 11th & 13th Jud Dists. 2011]), this court held that attaching a certified copy of the referee’s deed to the notice to quit did not satisfy the requirement of RPAPL 713 (5) that the deed be exhibited to the respondent, where the notice to quit was served by conspicuous-place service. Petitioner here, in effect, asks this court to reconsider this ruling, arguing, among other things, that the exhibition requirement dates from the time that the statute required exhibition of the original deed and that, under the language subsequently added to the statute permitting exhibition of a certified copy of the deed, service of such a certified copy by means other than personal delivery should suffice.”

“Upon reconsideration, this court agrees with petitioner’s contention. Civil Practice Act §1411 (6) required the exhibition to the respondent of an original referee’s deed, and this requirement was carried over when the Civil Practice Act provision was replaced in 1962 by RPAPL 713 (5). However, in 1976 (L 1976, ch. 642), because of the difficulties attendant in exhibiting an original deed, and in response to the decision in Rome v. White (82 Misc. 2d 356 [Civ. Ct., NY County 1975]) disallowing exhibition of a photostatic copy of the deed (see Sponsor’s Mem, Bill Jacket, L 1976, ch. 642), the legislature amended RPAPL 713 (5) to permit, in addition to exhibition of an original deed, exhibition of a certified copy of the deed. We 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.”

The occupants had also argued that the referee’s deed that was exhibited to them was not properly certified. However, New York State’s Civil Practice Law and Rules 4540(a) permits copies of official records to be used for authentication purposes. CPLR 4540 (b) states, in relevant part:

Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of,…the officer having legal custody of the
original, or his deputy or clerk, with his official seal affixed[.]

It was undisputed that, while the photocopy of the referee’s deed that was attached to the petition that was filed with the court bears the certifying official’s original signature with his official raised seal in compliance with CPLR 4540 (b), the copies served on occupants together with the notice to quit are photocopies of the referee’s deed and do not bear an original seal. Thus, the Appellate Term concluded that these copies did not satisfy the requirements of CPLR 4540 (b).

However, CPLR 2105 provides for an alternative method of certification, by an attorney, stating:

Where a certified copy of a paper is required by law, an attorney admitted to practice in the courts of the state may certify that it has been compared by him with the original and found to be a true and complete copy. Such a certificate, when subscribed by such attorney, has the same effect as if made by a clerk.

The Court held that this “section of the CPLR requires that the attorney ‘subscribe’ the certificate,” and it was undisputed that petitioner’s attorney signed the original certification, because the “original certification is attached to the petition filed with the Civil Court. Thus, the copy of the deed attached to the petition is certified by compliance with both CPLR 4540 (b) and CPLR 2105. A photocopy was then made of that document, and that the photocopy was served on occupants. The Appellate Term concluded that “this procedure comports with the requirements of CPLR 2105.”

Denial of Zoning Variance Was Arbitrary

Denial of Zoning Variance Was Arbitrary

In De Francesco v. Perlmutter, a Court in an Article 78 proceeding recently vacated and annulled the New York City Board of Standards and Appeals’ denial of variance application as arbitrary and unsupported by substantial evidence.

An Article 78 proceeding is used to appeal the decision of a New York State or local agency to the New York courts.

New York City and local zoning laws regulate what can and cannot be built on certain parcels of land. Zoning can regulate major additions to property, like adding another floor, but they can even affect simpler plans, like renovating a basement. If zoning laws do restrict your plans, it does not necessarily mean the end of your project. You can apply for a “zoning variance,” which acts as an exception to the zoning law. A zoning variance allows you to develop your property in a way that is at odds with the zoning laws in place. It is not a change in the zoning law, but a waiver from the requirements of the zoning ordinance.

Here, the petitioner sought permission to build a new one-family home on an undersized lot arguing the lot previously had a detached one-family home on it that was destroyed by fire in 1979, arguing that the 2005 zoning resolution was never intended to burden lots such as these, but to prevent developers from subdividing zoning lots to erect multiple buildings on small lots. He also argued that absent a variance the lot was undevelopable, and the alternative – to combine this lot with the neighboring one he owned – created an oversized home “completely out of character with the neighborhood.”

The local community board voted 37-0 in favor of granting the variance, but the Board of Standards and Appeals (“BSA”) voted 2-2 resulting in the denial of the variance.

The petitioner argued his hardship in not being able to build the home was not self-created as he bought the lot before the 2005 zoning amendment.

In analyzing the application, the Court reasoned that “local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion. Thus, a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence. A determination is rational if it has some objective factual basis, and courts consider “substantial evidence” only to determine whether the record contains sufficient evidence to support the rationality of the determination being questioned.”

It further reasoned that in “in considering an application for area variances, a zoning board is required to engage in a balancing test, weighing the benefit to the petitioner against the detriment to the health, safety, and welfare of the neighborhood or community if the area variances are granted. In particular, a zoning board must consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to a nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”

The Court concluded that the hearing transcripts were devoid of any indication of BSA’s consideration of elements of the necessary balancing test, finding the BSA’s denial of the variance arbitrary and unsupported by substantial evidence. It vacated and annulled the denial, granting petitioner’s application for a variance.

What About the Gifts in Contemplation of Marriage?

What About the Gifts in Contemplation of Marriage?

In Luce v. Fleck, Luce sued for partition of residential property she held jointly with Fleck. Fleck had owned the property on his own prior to meeting Luce until deeding it to himself and Luce as joint tenants. Fleck claimed the transfer was a conditional gift in contemplation of marriage, as was a diamond ring, so when the relationship ended, Fleck demanded the ring from Luce and to deed the property back to him. She refused and brought the action. In the action, Fleck counterclaimed for return of the ring and rescission of the conveyance.

When Fleck moved for summary judgment dismissing the complaint and judgment on his counterclaims, Luce claimed that the ring was given “to celebrate” their “romantic and intimate relationship.” She said that “at the time of the delivery of the gift of said ring, he did not propose marriage and he did not state or imply that the gift of the ring was conditional, qualified or temporary.” She also claimed that in accepting the ring she “did not make any promises or commitment to marry” Fleck. She said there “was and never has been” any agreement between the two of them to get married. She claimed that because of the couple’s mutual experiences with prior marriages and divorce, neither wanted to marry again.

However, social media proved otherwise. The Court found that “inasmuch as Defendant contends that both gifts at issue — the ring and the Property — were conditional, the most crucial question is whether Plaintiff and Defendant were engaged at the time the gifts were made. Plaintiff’s Facebook posts constitute documentary evidence of Plaintiff’s admissions to being given the ring as an engagement ring, upon her acceptance of Defendant’s proposal of marriage. Indeed, they are not just admissions, but proclamations to the world of her engagement. Both non-party witnesses also
confirm that Plaintiff admitted her engagement to them as well. The statements in Plaintiff’s Affidavit contradicting her own admissions, as reflected in that documentary evidence, appear to the Court to be nothing more than attempts to raise a feigned issue of fact where none truly exists.”

Thus, the Court held that the diamond ring was given as an engagement ring, in contemplation of the parties’ later marriage, and holding that New York law applied making the ring a “conditional gift,” and where the condition was not fulfilled, the gift was revoked and the ring must be returned, and Fleck was entitled to its return or its value – some $3,000.

However, with respect to the residence, the Court found that the parties’ raised issues of fact if the transfer was made solely in contemplation of marriage as the property was not transferred at the time of engagement, but only when Luce became obligated under the mortgage, denying dismissal of the complaint. A trial may be necessary to resolve that.

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