Exhibition of the Deed No Longer an In Person Requirement

When commencing a post-foreclosure eviction action, whether seeking to do so in landlord/tenant court pursuant to RPAPL §735 or in Supreme Court pursuant to RPAPL §221, both require that the deed, whether it is the original or a certified copy, be exhibited to the occupant. The question of what is a sufficient method of “exhibiting” the deed has been one of great debate. In 2011, an Appellate level court held in Home Loan Services v. Moskowitz that attaching a copy of the referee's deed to a 10-day notice to quit served by "nail and mail" was insufficient to satisfy the requirement of exhibition of the deed. This left petitioners in a very difficult position- if their newly acquired property was occupied, an occupant could simply avoid in-hand service and they would have a jurisdictional defense. Further compounding the problem is that often enough, petitioners are unaware of who occupies the property, rendering in hand/personal service prohibitively costly and time-consuming.

On April 13, 2018, the very same court overturned their previous decision in Home Loan Services v. Moskowitz and held in Plotch v. Dellis 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.” In effect, the Court has determined that service of the Certified Referee’s Deed by “nail and mail” service upon the occupants is satisfactory for the purposes of commencing a post-foreclosure eviction proceeding. The Plotch decision will spare the Petitioner the burden of establishing that each occupant has been exhibited a Referee’s Deed in person. Rather, upon making a reasonable number of attempts at service pursuant to CPLR § 308(4), nail and mail service of the Certified Referee’s Deed will suffice!

Should you require any assistance complying with these new laws or wish to discuss any of them in detail, please contact Peter Roach at peter.roach@roachlawfirm.com

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