Opinion
Index No. LT-067789-19/QU
10-19-2021
NORTHERN BLVD. REALTY, Petitioner(s), v. S. KIBBUTZ RESTAURANT INC.; Cheng; XYZ Corp ; "John" "Doe"; "Jane" "Doe," Respondent(s).
Petitioner's counsel: Daniel Leonard Feldman, 4146 Main Street, Suite 200, Flushing, NY 11355 Respondents: Alfred S. Lui, 33 Bowery, Suite C201, New York, NY 10002
Petitioner's counsel: Daniel Leonard Feldman, 4146 Main Street, Suite 200, Flushing, NY 11355
Respondents: Alfred S. Lui, 33 Bowery, Suite C201, New York, NY 10002
Wendy Changyong Li, J.
I. Papers
The following papers were read on non-party 135-XX LLC's motion for substitution and for issuance of warrants of eviction:
Papers Numbered
Non-party 135-XX LLC's Notice of Motion and Affirmation in Support dated May 25, 2021 ("Motion ") and electronically filed with the court on the same date. 1
Respondents’ Opposition N/A
II. Background
In a notice of petition and petition filed on September 19, 2019, Petitioner commenced a holdover proceeding against Respondents in connection with the premises located at 135-XX Northern Boulevard, 1st Fl./Basement, Flushing, NY 11354 ("Premises "). Pursuant to a stipulation dated February 5, 2020, Respondents S. Kibbutz Restaurant Inc. and Cheng "consent[ed] to the jurisdiction of [the] court and waive[d] all defenses and counterclaims they may [have] possess[ed] [and] agree[d] to vacate the premises by March 8, 2020". (Motion, Aff. of McCaffrey, Ex. A at 1.) On February 5, 2020, the court (U., J.) issued a warrant of eviction against Respondents S. Kibbutz Restaurant Inc. and Cheng, but stayed execution until March 9, 2020 (see id. Ex B at 1). On February 24, 2020, the court (G., J.) issued a warrant of eviction against Respondents XYZ Corp., John Doe and Jane Doe (see id. at 2).
On August 14, 2020, Petitioner conveyed the Premises to non-party 135-XX LLC (see id. Ex C). In an assignment dated August 14, 2020, Petitioner assigned to 135-XX LLC its "right, title and interest" in both the Premises and the instant proceeding (see id. Ex. D at 1). Petitioner also assigned its "right, title and interest as landlord in those certain leases and extensions thereof, if any ... and the rents arising therefrom" (see id. at 4). 135-XX LLC now moved to substitute itself for Petitioner in this proceeding and an order directing the clerk to issue a warrant of eviction against Respondents. Respondents did not oppose the Motion.
III. Discussion and Decision
A. Substitution
Since a "motion for substitution may be made by the successors or representatives of a party or by any party" ( CPLR 1021 ; U.S. Bank, N.A. v Duran , 174 AD3d 768, 769 [2d Dept 2019] ), 135-12 LLC is a proper party to move for substitution. In addition, since "the event requiring substitution occurred after final judgment" ( CPLR 1021 ), 135-XX LLC properly moved for substitution in this court. "Upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action" ( CPLR 1018 ; U.S. Bank, N.A. v Duran , 174 AD3d at 769 ). In the instant matter, the evidence showed that Petitioner transferred its interest to 135-XX LLC in both the Premises and the instant proceeding against Respondents, which furnished a sufficient basis for substitution of 135-XX LLC for Petitioner ( First Am. Tit. Ins. Co. v Chavannes , 176 AD3d 678, 680 [2d Dept 2019] ; Blue Mountain Homes, LLC v Betancourt , 47 Misc 3d 144[A], 2015 NY Slip Op 50687[U] *2 [App Term 2d Dept 2015], see U.S. Bank, N.A. v Duran , 174 AD3d at 769 ; Saxon Mtge. Servs., Inc. v Coakley , 83 AD3d 1038, 1038 [2d Dept 2011] ). Therefore, this Court grants 135-XX LLC's Motion to substitute it for Petitioner.
B. Issuance of the Warrants
135-XX LLC also requested that this Court order issuance of the warrants of eviction.
On September 2, 2021, Governor Kathy Hochul signed into law 2021 Senate-Assembly Bill S50001-A40001 ("Act "). Among other things, the Act amended various laws enacted in response to the Covid-19 pandemic, namely the Tenant Safe Harbor Act ("TSHA "), the Covid-19 Emergency Eviction and Foreclosure Prevention Act ("CEEFPA "), and Covid-19 Emergency Protect Our Small Businesses Act ("CEPOSBA ", collectively with TSHA and CEEFPA, the "Prior Acts "), extended the Prior Acts’ effective dates to January 15, 2022, and combined the Prior Acts into the Act. Relevant to the issues involved in our instant case, CEPOSBA is now Part B of the Act. Act, Part B, Subpart A § 6[1][a] provides for commercial landlord-tenant matters that:
In any eviction proceeding in which an eviction warrant or judgment of possession or ejectment has been issued prior to the effective date of this act, but has not yet been executed as of the effective date of this act, including eviction proceedings filed on or before March 7, 2020, the court shall stay the execution of the warrant or judgment at least until the court has held a status conference with the parties.
In the matter before this Court, the eviction warrants had already been issued in February 2020, prior to the effective date of the Act, but were never executed. Thus 135-XX LLC's request to issue warrants of eviction is denied as academic. To the extent that 135-XX LLC sought execution of the warrants of eviction, such execution is stayed until this Court conducts a status conference with both parties.
This Court notes that "[n]o officer to whom the warrant or execution is directed shall execute a warrant for eviction issued that does not comply with the requirements of this section" (Act, Part B, Subpart A, § 6[4]). Act, Part B, Subpart A, § 6[2] provides for commercial landlord-tenant matters that:
In any eviction proceeding in which a warrant or execution has been issued, including eviction proceedings filed on or before March 7, 2020, any warrant or execution issued shall not be effective as against the occupants, unless, in addition to other requirements under law, such warrant or execution states:
[a] [t]he tenant has not submitted the hardship declaration and the tenant was properly served with a copy of the hardship declaration pursuant to this section, listing dates the tenant was served with the hardship declaration by the petitioner or plaintiff and the court; or
[b] [t]he tenant is ineligible for a stay under this act because the court has found the tenant's hardship claim invalid, or that the tenant intentionally caused significant damage to the property, or the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behavior.
Thus, to ensure an effective warrant that may be executed, 135-XX LLC must be in compliance with the Act by demonstrating that Respondents have not filed a hardship declaration despite being served with it on specified dates, or that tenant infringed on other tenants’ or occupants’ use and enjoyment of the Premises or caused a safety hazard to others. Although 135-XX LLC presented an affidavit appended to its Motion and sworn April 28, 2021, in which Naudon, 135-XX LLC's managing member, attested that Respondents were using the Premises as a brothel, 135-XX LLC failed to explain or establish that Respondents had "intentionally caused significant damage to the property, or ... [had] persistently and unreasonably engage[d] in behavior that substantially infringe[d] on the use and enjoyment of other tenants or occupants or caused a substantial safety hazard to others, with a specific description of the behavior" (Act, Part B, Subpart A § 6[2][b]).
IV. Order
Accordingly it is
ORDERED that the Motion to substitute is granted, and that 135-XX LLC, as transferee of interest in the Premises and the instant proceeding of Northern Blvd. Realty, predecessor in interest, is substituted for Petitioner in the above-entitled proceeding in the place and stead of Petitioner, Northern Blvd. Realty, without prejudice to any proceedings heretofore had herein; and it is further
ORDERED that all papers, pleadings and proceedings in the above-entitled proceeding be amended by substituting the name of 135-XX LLC, as transferee of interest of Northern Blvd. Realty, predecessor in interest, as Petitioner in the place and stead of said originally named Petitioner, without prejudice to the proceedings heretofore had herein; and it is further
ORDERED that counsel for Petitioner shall serve a copy of this order with notice of entry upon the clerk, who is directed to amend their records to reflect such change in the caption herein; and it is further
ORDERED that service upon the clerk may be made through New York State Courts Electronic Filing; and it is further
ORDERED that Petitioner's Motion to the extent it sought to issue a warrant of eviction is denied as academic, and it is further
ORDERED that Petitioner's Motion, to the extent it sought execution of the warrants of eviction, is denied pending a status conference with both parties before this Court and resolution of hardship declaration pursuant to 2021 Senate-Assembly Bill S50001-A40001 Part B, Subpart A § 6[2]; and it is further
ORDERED that the parties shall request via email referencing the above-entitled proceeding to XXX@nycourts.gov a Microsoft Teams invitation and appear for a virtual status conference on December 6, 2021 at 2:00pm; and it is further
ORDERED that Petitioner shall serve a copy of this order with notice of entry upon Respondents in the same manner as service of a notice of petition and petition ( RPAPL 735[1] ) and that the clerk is directed to notify Respondents of the above status conference.
This constitutes the court's Decision and Order.