Opinion
Index No. 312512-22
06-05-2023
BROADWAY BRETTON, INC. Petitioner. v. "JANE DOE" Respondent
Novick Edelstein Pomerantz. PC. for the respondent Northern Manhattan Improvement ('ompany, for the respondent
Unpublished Opinion
Novick Edelstein Pomerantz. PC. for the respondent
Northern Manhattan Improvement ('ompany, for the respondent
DECISION/ORDER
HON. KAREN MAY BACDAYAN. JHC
Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 4, 5. 14-18.
PROCEDURAL POSTURE AND BACKGROUND
This is a nonpayment proceeding commenced by Broadway Bretton, Inc. ("petitioner ') in August 2022 against respondent, a rent stabilized tenant. Respondent appeared by counsel on December 16, 2023. (NYSCEF Doc No. 5, notice of appearance.) Pursuant to a briefing schedule ordered by the court on December 21, 2022, respondent timely tiled an amended answer on January 13, 2023. (NYSCEF Doc No. 13. briefing order; NYSCEF Doc No. 14, amended answer.) Respondent's intended motion for leave to conduct discovery was due to be filed and served by February 5, 2023. Six days prior to the deadline, on January 30, 2023, respondent provided notice that an appeal had been filed pending the denial of her Emergency Rental Arrears Program ("ERAP") application. (NYSCEF Doc No. 1 5.) This had the effect of staying the proceeding until such time as the Office of Temporary and Disability Assistance ("OTDA") rendered a decision on her appeal. (See Admin Order of Chief Admin Judge of Cts AO 34/22 ¶ 5; L 2021, ch 56, part BB, subpart A, § 8, as amended by L 2021, ch 417. part A, § 4.) No motion was ever filed. The appeal was denied on April 25, 2023.
Respondent's true identity has been changed, and her file sealed, to protect her identity.
On May 17, 2023. petitioner moved to restore the proceeding to the trial calendar and to vacate the ERAP stay. (NYSCEF Doc No. 16, notice of motion [sequence 1].) The motion was served via NYSCEF and made returnable the next day. Respondent did no oppose the vacatur of the stay, but sought to have the court order another briefing schedule regarding an objection to personal jurisdiction (regarding her defense that the affidavit of service was not timely filed pursuant to RPAPL 735 [2] [b]), and discovery (regarding her affirmative defenses and counterclaims related to fraudulent overcharge). (NYSCEF Doc No. 14, amended answer ¶¶ 1931.) Petitioner objected to respondent's request given that a briefing order had been issued five months prior to the court appearance and any motion had been due three and a halt months before the appearance. The court took respondent's oral application on submission.
DISCUSSION
At the outset, in order to narrow the issues before the court, respondent's request to move for dismissal of the petition based on this court's lack of personal jurisdiction is declined. Respondent has waived her personal jurisdiction defenses. By not asserting an objection to personal jurisdiction in her initial answer dated September 9, 2022, respondent waived her right to contest personal jurisdiction. (NYSCEF Doc No. 4, pro se answer.) Even if the court were to overlook the respondent's failure to raise a personal jurisdiction defense while unrepresented, respondent's attorney filed a notice of appearance five months ago on December 22, 2023, and did not raise a personal objection defense until January 13, 2023 when she filed an amended answer which petitioner accepted in order to expedite motion practice. Pursuant to CPLR 320 (a), "[t]he defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. . . ." (Chao Jiang v Ping An Ins., 179 A.D.3d 517, 517 [1st Dept 2020] ["by appearing by notice of pro hac vice admission in this dispute, failing, twice, to file timely pre-answer motions to dismiss, and defending on the merits (internal citations omitted)'']; (Am. Home Mortg. Servicing. Inc. v Arklis, 150 A.D.3d 1180, 1181 (2d Dept 2.) Pursuant to CPLR 320 (b) "an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under (CPLR 3211 (a) (8) is asserted by motion or in the answer as provided in (CPLR 3211)." (Id., see also McGowan v Hoffmeister, 15 A.D.3d 297 [1st Dept 2005] ("While permission to amend an answer is to be freely given pursuant to CPLR 3025 (b), the waiver of a jurisdictional defense cannot be nullified by a subsequent amendment to a pleading adding the missing affirmative defense.")
Respondent's justification for breaching the briefing order - that an ERAP stay was in effect - is weak. The purpose of the ERAP statute is to prevent as many evictions as possible as a result of the COVID-19 pandemic. It is not intended to excuse litigants from statutory requirements, or court orders. There is nothing in the ERAP statute explicating a toll or suspension of an attorney's procedural obligations or obligations under a court order. (See NY Stat § 363 ["Generally, omissions in a statute cannot be supplied by construction"].) Elaving amended the statute once, certainly the legislature could have included that the filing of an ERAP application suspended pending litigation, statutory deadlines, and court orders if that was the intention. There is precedent for this which was invoked during the height of the pandemic. (See e.g. Executive Law § 29-a.) However, the legislature did not so specify; and canons of statutory construction require the court to conclude that this was not the legislature's intent. "[F]ailure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended. . . (People v Finnegan, 85 N.Y.2d 53, 58 [1995].) Moreover, as the Court of Appeal instructed in Miceli v Stale Fann Mui. Auto. Ins. Co., 3 N.Y.3d 725 (2004), "court-ordered time frames are not options, they are requirements, to be taken seriously by the parties. Too many . . . hours of the courts, are taken up with deadlines that are simply ignored." (Id. at 726-27).
That said, initially the court intended to bar further motion practice based on respondent's disregard of the briefing order. However, the court finds that it would be unduly harsh in this instance, without notice, which respondent now has, for the court to hold respondent in default of its briefing order and prohibit the filing of a motion for leave to conduct discovery, something that ensues as of right in other forums. While motions may be decided on default for failure to follow a court's briefing order, there is no motion except for petitioner's motion before the court; and that motion is formally granted below. It would be an error for the court to, in effect, issue a decision on the merits of a motion - i.e., whether or not respondent is entitled to discovery based on her interposed defenses - that is not properly before it. Thus, in the interests of justice and substantive fairness, the court orders a final briefing schedule.
The court has amended its Part Rules to reflect this interpretation of the statute.
Liberty Cmty. Assocs., LP v DeClemente, 139 A.D.3d 532 (1st Dept 2016); Matter of 144 Stuyvesant, LLC v Goncalves, 119 A.D.3d 695 (2d Dept 2014).
See Part F Rules at VI, Motions - Filing, Briefing, and Argument - available at https://www.nycourts.gov/COURTS/nyc/housing/Judge/partrules/KBacdaya.pdf.
CONCLUSION
Accordingly, it is
ORDERED that petitioner's motion to vacate the ERAP stay is GRANTED: and it is further
ORDERED that respondent shall file her motion for leave to conduct discovery pursuant to CPLR 408 by June 26, 2023; and it is further
ORDERED that petitioner's opposition and any cross-motion shall be filed by July 15, 2023: and it is further
ORDERED that respondent's opposition to the cross-motion and reply to petitioner's opposition shall be filed by July 25, 2020; and it is further
ORDERED that petitioner's reply shall be filed by August 2, 2023.
The parties shall appear in Part F, Room 523, of the New York City Civil Courthouse on August 4, 2023 at 9:15 a.m. in person for oral argument.
The court has fashioned a robust yet manageable briefing schedule in order allow respondent to file her motion and, at the same time, ameliorate any perceived unfairness to petitioner. If the parties seek to alter this schedule, they must agree and alert the court by letter correspondence filed on NYSCEF concomitant with an email to kbacdaya (atnvcourts.gov. If the parties cannot agree, they must adhere to the schedule. The court will not involve itself in the parties' negotiations in this regard.
This constitutes the decision and order of this court.