Opinion
L & T Index No. 48204-2019
03-18-2022
1113 WALTON CO., Petitioner, v. Omar CRUZ & John & Jane Doe, Respondent.
For Petitioner: Ita Flug, Esq. For Respondent: Ana M. Apostoleris, Of Counsel, The Legal Aid Society
For Petitioner: Ita Flug, Esq.
For Respondent: Ana M. Apostoleris, Of Counsel, The Legal Aid Society
Shorab Ibrahim, J.
Recitation, as required by CPLR 2219(a), of the papers considered in review of petitioner's motion to vacate all stays, execute the warrant against Omar Cruz, substitute Yrana Rojas Martinez in place of Jane Doe, and entry of a judgment of possession and issuance of a warrant of eviction against Yrana Rojas Martinez, and of the cross-motion seeking to interpose a late answer and dismissal of the case: NYSCEF DOCS. No. 26 through 41.
Much of the relevant history of this long-standing non-payment proceeding is recited in the court's December 1, 2021 Decision & Order [Hon. M. Scott-McLaughlin] and is not repeated here. That Order stayed this matter due to a Hardship Declaration, ((see L. 2021, c. 417, Part C, Subpart A, § 6), and a pending ERAP application, (see L. 2021, c. 417, Part A, § 4), both filed by Yrana Rojas Martinez, an occupant of the subject residential unit.
Petitioner now moves to vacate the ERAP stay, to substitute Yrana Rojas Martinez (Martinez) in place of Jane Doe, for leave to execute the warrant of eviction against Omar Cruz (Cruz), and for issuance of a judgment of possession and warrant of eviction against Martinez.
Martinez cross-moves for leave to serve and file a late answer and for dismissal against Martinez.
The court addresses the cross-motion first. There is a strong public policy that litigation be resolved on the merits. (see Sanford v 27-29 W. 181st Street Ass'n, Inc. , 300 AD2d 250, 251, 753 NYS2d 49 [1st Dept 2002] ; Harcztark v Drive Variety, Inc. , 21 AD3d 876, 877, 800 NYS2d 613 [2nd Dept 2005] ). A late answer may be accepted "upon such terms as may be just and upon a showing of reasonable excuse for the delay." (see CPLR § 3012(d) ; Hirsh v New York City Dep't of Educ. , 105 AD3d 522, 961 NYS2d 923 [1st Dept 2013] ).
Here, Martinez was named as Jane Doe and represents, albeit through counsel, that she did not realize she could file an answer. Though the motion could be denied, (see Wilmington Trust, National Association v Ashe , 189 AD3d 1130, 1132, 138 NYS3d 515 [2nd Dept 2020] ( CPLR § 3012(d) motion denied where defendant failed to submit her own affidavit); Fawn Second Avenue LLC v First American Title Insurance Company , 192 AD3d 478, 140 NYS3d 399 [1st Dept 2021] ), the court accepts the late answer in the interests of judicial economy, because it does not allege any facts not already known, and because it does not change the ultimate outcome for Martinez. Thus, the proposed answer is deemed served and filed.
Martinez also seeks dismissal of this proceeding against her, premised on the fact that there is no rental agreement between petitioner and Martinez. She argues there is no privity with petitioner and, as such, petitioner must be relegated to a holdover proceeding to obtain possession. Martinez is correct, of course, that a landlord-tenant relationship must exist between the parties for a landlord to sue for rental arrears. (see 459 Webster Avenue, LLC v Green , 64 Misc 3d 146[A]; 2019 NY Slip Op 51349[U] [App term, 1st Dept 2019] ; Eshaghian v Adames , 28 Misc 3d 1215[A], 2010 NY Slip Op 51363[U] [Civ Ct, New York County 2010] ). However, Martinez is incorrect in arguing that petitioner may now only seek her eviction in a holdover proceeding.
The court notes that the notice of cross-motion does not identify itself as seeking dismissal.
Due process requires that for a warrant to be effective against a subtenant, licensee or occupant she be made a party at the onset or during the proceeding. (see 47 Featherco LLC v Castillo , 53 Misc 3d 1211[A], 3, 2016 NY Slip Op 51588[U] [Civ Ct, Bronx County 2016], citing 170 West 185th Street Tenants Ass'n v Cruz , 173 AD2d 338, 569 NYS2d 705 [1st Dept 1991] ). In 47 Featherco , also a non-payment proceeding, the court allowed joinder of additional parties during the proceeding and judgments of possession and warrants of evictions issued. The court noted that the added respondents there, like Martinez here, had no independent possessory rights to the apartment, had never paid rent to the petitioner and had appeared in the case on numerous occasions.
Consequently, Martinez' motion to dismiss the proceeding is denied.
Petitioner's motion, on the other hand, is granted in its entirety. Petitioner's applications are essentially unopposed. Martinez' opposition/cross-motion does not substantively oppose any of the relief petitioner seeks—it only seeks to file a late answer and seeks dismissal based on lack of privity between Martinez and petitioner.
Firstly, the parties acknowledge there are no stays in effect as the Hardship Declaration stay expired with CEEFPA's sunset after January 15, 2022 and Martinez' ERAP application was denied on or about February 7, 2022. (see Harbor Tech LLC v Correa , 2021 NY Slip Op 50995[U] [Civ Ct, Kings County 2021] ).
The application to amend the pleadings to substitute Martinez in place of Jane Doe is unopposed and must be granted. (see HSBC Bank USA, N.A. v Alexander , 124 AD3d 838, 840, 4 NYS3d 47 [2nd Dept 2015] ). Amendment is warranted pursuant to CPLR § 1024, and the amendment/substitution does not cause any prejudice or surprise to Martinez. (see Site 13 Apartment Owners, LCC v Miles, 26 Misc 3d 132[A], 2010 NY Slip Op 50060[U] [App Term, 1st Dept 2010] (unopposed motion for non-prejudicial amendment should be granted); St. Nicholas W. 126 L.P. v Republic Investment Co. , LLC, 193 AD3d 488, 146 NYS3d 612 [1st Dept 2021] ).
Petitioner's application to execute the warrant of eviction against Ramon Cruz is granted.
The motion does not indicate that the required warning letter was attached to the motion served upon Ramon Cruz pursuant to Civil Court Directives and Procedures 217, which governs warrants issued prior to March 17, 2020 (see Ex. A attached to DRP 217). However, as Ramon Cruz, through counsel, acknowledged vacating the unit more than two years ago. (see April 28, 2021 Order, page 4), this defect, if it is one, is non-prejudicial.
Finally, the court turns to whether petitioner is entitled to entry of a judgment of possession and issuance of a warrant of eviction against Martinez. To make this determination, the court must refer to CPLR § 409(b).
In special proceedings, CPLR 409(b) requires a summary determination be made whenever no triable issues of fact are raised, regardless of the posture of the proceeding. (see Torres v Sedgwick Avenue Dignity Developers LLC , 74 Misc 3d 1209[A], 2, 2022 NY Slip Op 50085[U] [Civ Ct, Bronx County 2022]citing Triangle Pac. Bldg. Products Corp., v National Bank of North America , 62 AD2d 1017, 404 NYS2d 121 [2nd Dept 1978] (holding that CPLR § 409 and § 410 mandate a trial only of those issues "which cannot be disposed of by summary determination upon the pleadings.")).
Under CPLR 409(b), it is the court's duty to search the record and make summary determinations where appropriate. (see Sukaj Group LLC v Mallia , 66 Misc 3d 1223[A], 2, 2020 NY Slip Op 50218[U] [Civ Ct, Bronx County 2020], citing 1091 River Avenue LLC v Platinum Capital Partners, Inc. , 82 AD3d 404, 2011 NY Slip Op 01518 [1st Dept 2011] ).
The petition seeks a judgment of possession against Jane Doe, now Martinez. The answer does not contain any defense to this claim. Martinez claims she "lacks knowledge or information sufficient to form a belief as to" paragraphs one, two, five, six, seven, eight, nine and ten of the petition and interposes two affirmative defenses.
This type of "form" denial is patently improper, has been condemned as frivolous, and insufficient to raise an issue of fact. (see Gilberg v Lennon , 193 AD2d 646, 547 NYS2d 462 [2nd Dept 1993]; Majerski v City of New York , 193 AD3d 715, 718, 146 NYS3d 641 [2nd Dept 2021] ("denials of ‘knowledge or information sufficient to form a belief' was improper as the truth or falsity of the information alleged within those paragraphs of the complaint is wholly within the possession of the defendants"); Rochkind v Perlman , 123 AD 808, 810-811, 108 NYS 224 [2nd Dept 1908] ("Nor may this form of denial be used in a case of intentional ignorance of the defendant when it is his duty, as here, to know or learn the facts, and they are at hand and accessible."); Allen v National Surety Co. , 144 AD 509, 510, 129 NYS 228 [1st Dept 1911] ; Torres v Sedgwick Avenue Dignity Developers LLC , 74 Misc 3d 1209[A], 2 ).
Among the items Martinez lacks knowledge of are whether petitioner is represented by Ita Flug, Esq., whether petitioner is the landlord, whether the apartment is subject to rent stabilization, and whether the unit is duly registered with DHCR. These "denials" are incredible since Martinez has been represented since July 14, 2021, has actively litigated legal issues, filed a Hardship Declaration, and filed an ERAP application. The truth or falsity of the allegations of the petition are easily ascertainable in this court's view.
The first affirmative defense—that petitioner cannot obtain a monetary judgment against her—is a technically correct statement, but not a defense to the judgment of possession petitioner seeks. (see, e.g. 47 Featherco LLC v Castillo , 53 Misc 3d 1211[A] ).
The second affirmative defense—that petitioner should be relegated to a holdover proceeding—is likewise without merit.
Consequently, petitioner is granted a final judgment possession against Martinez. A warrant of eviction may be sought at the clerk's office. Execution of all warrants is stayed (10) days. The earliest eviction date shall be March 31, 2022.
Petitioner alleges there is $39,292.50 due through March 31, 2022. A submitted rent ledger shows the same.
This constitutes the decision and order of the court. A copy will be posted in NYSCEF.
SO ORDERED,