The following papers numbered EF4 to EF20 read on this motion by plaintiff US Bank for an Order amending the Order of this Court dated December 24,2019, and entered on January 7, 2020. PAPERS NUMBERED Notice of Motion Affid.-Exhibits EF4-EF16 Answering Affid.-Exhibits EF17-EF18 Reply Affid.-Exhibits EF19-EF20 Upon the foregoing papers it is ordered that this motion is denied. I. The Facts On or about November 22, 2006, Jill Pettersen and Martin Pettersen executed a bargain and sale deed (the deed) whereby they transferred property known as 22 East 9th Road, Broad Channel, New York (the property) to the latter. The deed was misplaced or lost and not recorded. The plaintiff bank began this action by the filing of a Summons and Complaint dated April 1, 2014, and the plaintiff asserted a Cause of Action for an Order authorizing the recording of a copy of the deed in place of the lost original. Martin Petersen having died, the plaintiff petitioned the Queens County Surrogate’s Court to have a representative appointed for his estate. On March 26, 2019, the Surrogates Court issued Limited Letters of Administration to the plaintiff’s nominee, Jonathan Nelson, authorizing him to accept service of process on behalf of the estate in this action and to defend the estate in this action. The letters of administration did not authorize Nelson to execute ACRIS documents. Pursuant to a 2015 stipulation, this Court issued an Order dated December 24, 2019 and entered on January 7, 2020 which, inter alia, directed the New York City Register (the City Register) to “accept for recording and then to record” a copy of a deed in place of the lost original. The Order provided: “ORDERED that since the November 22, 2006 Bargain and Sale Deed (the “Bargain and Sale Deed”), annexed hereto as Exhibit C, whereby Jill and Martin Pettersen together conveyed the Property in full to Martin Pettersen individually, was inadvertently not recorded and is now misplaced or lost, the New York City Register shall accept for recording and then record a copy of the Bargain and Sale Deed, in lieu of the original.” However, the City Register has refused to record the deed without a fully executed New York City Real Property Transfer Tax Return (RPT) and New York State Real Property Tax Return (TP-584) (together, the ACRIS documents). The City Register has refused to accept ACRIS documents signed only by Jill Pettersen. The plaintiff now seeks an Order adding the following language to this Court’s Order dated December 24, 2019 at the end of the second decretal paragraph: “without the need to submit a New York City Real Property Transfer Tax Return (RPT), or New York State Real Property Tax Return (TP-584).” II. Discussion The City Register opposes the instant motion, asserting : “There is no authority, and indeed Plaintiff has cited none, for the proposition that the grantor and grantee on the deed sought to be recorded should be excused from filing a proper, signed RPTT tax return and paying the RPTT due, if any, at the time the deed is recorded.” If the lost original of the deed had been recorded, a properly executed RPT would have been required. “The failure to file a proper tax return affects the substantial rights of all New York City residents, who have a vested interest in having all taxpayers file required returns and pay taxes. The signatures on a return indicate that the filing is true, complete and correct and is submitted under penalty of perjury.” NYC Admin Code §11-2105(a) provides in relevant part: “a. A joint return shall be filed by both the grantor and the grantee for each deed whether or not a tax is due thereon. The return shall be signed by both the grantor or the grantor’s agent and the grantee or the grantee’s agent.” NYC Admin Code §11-2104 provides in relevant part: “The tax imposed hereunder shall be paid by the grantor to the commissioner of finance at the office of the register in the county where the deed is or would be recorded within thirty days after the delivery of the deed by the grantor to the grantee but before the recording of such deed.” NYC Admin Code §11-2105(f) provides: “The payment of, and the filing of returns relating to, the taxes imposed hereunder, shall be required as a condition precedent to the recording or filing of a deed, “ Having demonstrated that the law requires the filing of ACRIS documents at the time a deed is recorded, the City Register argues that the proper course of conduct for the plaintiff to follow is to apply to the Surrogate’s Court for amended letters of administration authorizing the representative to execute the ACRIS documents. The plaintiff’s reply papers ignore this argument made by the City Register and insist that the City Register is frustrating the Order of this Court which says nothing about ACRIS documents. The plaintiff further argues, inter alia, that the City Register has a duty to record the deed which is ministerial and that the office is without the discretion or authority to refuse to record a conveyance that satisfies the requirements of the Real Property Law. The plaintiff’s arguments cannot withstand scrutiny. First, while the deed which the plaintiff seeks to record may satisfy some statutory requirements (see,e.g, N.Y. Real Prop. L. §291), the additional requirements imposed by NYC Administrative Code §§11-2104, 11-2105(a), and §11-2105(f) cannot be ignored. Second, while the fundamental purpose of the Recording Act may be to provide public notice of a conveyance, the City Register’s insistence that tax laws surrounding the recording of a deed be followed does not frustrate that purpose. Third, the stance taken by the City Register does not frustrate this Court’s Order dated December 24,2019, since the problem posed by the absence of ACRIS documents was not presented to the Court. Fourth, the plaintiff does not explain why it cannot apply to the Surrogates Court for amended letters of administration authorizing the representative to execute the ACRIS documents. Such an application does not appear to be an onerous burden for the plaintiff bank, and it would circumvent the need to rely on the dubious arguments that the plaintiff raises here. Accordingly, this motion is denied. Dated: December 17, 2021
