SCOTT FAIRGRIEVE
Steven J. Baum, P.C., Amherst, attorneys for petitioner. Williarm D. Friedman, Esq., Hempstead, attorneys for respondent Thomas.
David H. Jeffers, Hempstead, respondent.
SCOTT FAIRGRIEVE, J.
Petitioner HSBC Bank USA, National Association, commenced this holdover summary proceeding against respondents to recover possession of 687 Front Street, Hempstead, New York. Petitioner HSBC Bank USA, National Association became the owner pursuant to a Referee's Deed, dated June 8, 2010, after bringing a foreclosure action in the Nassau County Supreme Court.
A 90 Day Notice to Vacate, dated June 25, 2010, was served upon respondents. This Notice was executed on behalf of petitioner by Kathryn Cross of Wells Fargo. Attached to the 90 Notice was a Limited Power of Attorney dated June 25, 2009, which reads in pertinent part as follows:
HSBC Bank USA, National Association, hereby constitutes and appoints Wells Fargo Bank, N.A., (the “Servicer”), as its lawful agent and attorney-in-fact, in its name, place and stead to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate for the tasks described in items (1) through (4) below; provided however, that the documents described below may only be executed and delivered by such Attorney–in–Fact if such documents are required or permitted under the terms of the related servicing agreements and no power is granted hereunder to take any action that would be adverse to the interests of HSBC Bank USA, National Association or any action which is not required or permitted under the servicing or trust agreement. This Power of Attorney is being issued in connection with the Servicer's responsibilities to service certain mortgage loans (the “Loans”) held by HSBC Bank USA, National Association as Trustee of various trusts. These Loans are comprised of mortgages, deeds of trust, deeds to secure debt and other forms of security instruments (collectively the “Security Instruments”) and the promissory notes (the “Notes”) they secure.
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2.As HSBC Bank USA, National Association as Trustee of the trusts act and deed, to transact business of any kind regarding the Loans, to obtain any interest in the Loans and/or the property and buildings which are the subject of the Security Instruments (the “Property”), to contract for, purchase, receive, take possession of and obtain evidence of title in and to the Property, and/or to secure payment of the Notes or performance of any related obligation or agreement.
Thereafter a Ten (10) Day Notice to Quit with the same Limited Power of Attorney was served upon respondents. The said Notice was executed as follows, but the court is unsure of the title designation used by the signer Joyce Reynolds, which is indiscernible:
HSBC BANK USA, NATIONAL ASSOCIATION
Joyce Reynolds
By: Joyce Reynolds
Title: ? ? ?
Respondent Jasper Thomas moves to dismiss the summary proceeding because the 10 Day Notice violates Siegel v. Kentucky Fried Chicken of Long Island, 108 A.D.2d 218, 488 N.Y.S.2d 744 (2nd Dept 1985), aff'd67 N.Y.2d 792, which states as follows:
A notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in giving of such notice, is legally insufficient to terminate the tenancy. ( Id.)
Respondent also contends that the said Limited Power of Attorney attached to the 10 Day Notice to Quit does not grant authority to Wells Fargo to execute the 10 Day Notice on behalf of petitioner.
This court rejects the foregoing argument because paragraph 2 of the Limited Power of Attorney allows Wells Fargo to execute a 10 Day Notice if properly done. However, in the case at bar, the court holds that the 10 Day Notice is jurisdictionally defective because it was executed by a Joyce Reynolds with no indication by whom she is employed and provides no clear designation of her employment status. There is absolutely no indication that Joyce Reynolds has any signing authority. The court notes that the 90 Day Notice was signed by Kathryn Cross of Wells Fargo.
This court held in Deutsche Bank Natl. Trust Co. v. Resnik, 24 Misc.3d 1238(A) 899 N.Y.S.2d 58, 2009 N.Y. Slip Op 51793(U), that a 10 Day Notice to Quit was subject to the Kentucky Fried rule. Since the 10 Day Notice to Quit was executed by Joyce Reynolds without any indication of her authority to sign, the 10 Day Notice is jurisdictionally defective and this proceeding is dismissed.
Conclusion
The Limited Power of Attorney gives Wells Fargo the authority to execute the required notices to evict. However, in the case at bar, the 10 Day Notice is jurisdictionally defective. This summary proceeding is dismissed with leave to renew upon proper papers.
So Ordered.