1521 Sheridan LLC v. Vasquez

Decision Date22 June 2017
Docket Number62811/2016
Citation2017 NY Slip Op 27215
Parties1521 Sheridan LLC, Petitioner-Landlord, v. Estela Vasquez, Respondent-Tenant.
CourtNew York Civil Court


Law Offices of Scott D. Gross

151 Willis Avenue

Mineola, New York 11501

(516) 280-6410


Richard N. Kahn, Esq.

BOOM!Health Legal Services

540 East Fordham Road

Bronx, New York 10458

(718) 928-3706

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's motion to vacate the judgment and warrant and to dismiss:

Papers Numbered

Respondent's Order to Show Cause With Supporting Affirmation & Documents 1

Affirmation in Oppposition 2

In this Nonpayment Proceeding commenced by Notice of Petition and Petition dated October 19, 2016, Petitioner seeks rent arrears for the months of June 2016 through October 2016 based on a monthly rent of $1062.89, plus legal fees and late charges, for a total of $5671.40. The case was settled on the initial court date of November 9, 2016 in a Stipulation of Settlement which provided Petitioner with a possessory judgment and a monetary judgment for $5663.90, issuance of the warrant of eviction forthwith, execution stayed through December 26, 2016 for payment. On January 18, 2017 Respondent pro se sought to stay execution of the warrant of eviction and more time to pay the money judgment by taking out an Order to Show Cause, which was settled on February 10, 2017 in an agreement under which execution of the warrant was further stayed through March 13, 2017 for Respondent to pay rent due through February 2017 of $7652.57. Respondent's second Order to Show Cause was denied on April 27, 2017 due to improper service.

Respondent, now represented by counsel, has brought a third Order to Show Cause seeking vacatur of the judgment and warrant and dismissal of the petition as Petitioner has divested itself of title to the premises and the new owner has not sought leave pursuant to CPLR 1018 to be substituted in as Petitioner. A copy of a Bargain and Sale Deed dated March 20, 2017, with an acknowledged signature of Benzion Kohn, identified as Manager of 1521 Sheridan LLC1 , is attached to Respondent's Order to Show Cause as Exhibit B, documenting the transfer of 1511 Sheridan Avenue in the Bronx from "1521 Sheridan LLC" to "Sheridan 1511 LLC". Respondent's attorney cites to Muzio v Rogers (20 Misc 3d 143, 867 NYS2d [App Term 2nd Dep't 2008]), Besmanoff v Allen (143 Misc 2d 309, 543 NYS2d 608 [App Term 2nd Dep't 1989]), Leyin Ouyang v Cromelin (45 Misc 3d 1201[A], 2014 NY Slip Op 51416[U] [Civ Ct NY Co 2014]), Boyd v Sametz (17 Misc 728 [NY Co 2nd Dist 1896]), and Terner v Brighton Foods, Inc (27 Misc 3d 1225[A], 910 NYS2d 409 [Civ Ct Kings Co 2010]), as authority for the relief sought.

Petitioner opposes, arguing that Respondent "has provided no legal basis for this court to vacate the money judgment that Petitioner obtained when it was the rightful owner of the premises." Petitioner does not cite to any cases supporting its position, but argues that the cases Respondent's attorney cites are distinguishable, as none of them involve a nonpayment proceeding where, as here, the transfer of title took place after the issuance of the judgment.

The Order to Show Cause was adjourned on May 12, 2017 to June 15, 2017 for further briefing, with supplemental opposition due by May 26, 2017 and reply by June 9, 2017. No supplemental opposition or reply were served and filed, and on June 15, 2017 Petitioner's counsel did not appear for argument. Respondent's counsel appeared and provided the court with a copy of a document the new owner's attorney had given him entitled "Assignment and Assumption of Arrears, Causes of Action and Pending Litigation" (hereinafter "the Assignment"), in which Petitioner 1521 Sheridan LLC assigned to Sheridan 1511 LLC "all right, title and interest of Assignor in and all arrears, due and payable to Assignor in connection with the Property as well as any interest in and to the causes of action alleged, or which could be alleged, or which litigation is pending as relating to such arrears." The Assignment further states that "Assignee is hereby permitted to amend the caption of any such cause of action." The Assignment is signed by Benzion Kohn2 , Managing Member of Petitioner 1521 Sheridan LLC as Assignor, but the copy provided to the court contains neither a signature of any representative of the Assignee nor a complete execution date — it includes the month of March and the year 2017, but does not specify the day.

The new owner, Sheridan 1511 LLC, has not made a motion under CPLR § 1018 to be substituted as Petitioner and Respondent's counsel reported to the court on June 15, 2017 that, instead, the new owner commenced a new nonpayment proceeding against Respondent, also calendared in Part K for that same day. The court system's database confirms this, and shows that the new case is entitled Sheridan 1511 LLC v Estela Vasquez, L & T Index # 27701/2017, seeks rent arrears of $11,171.37 and was adjourned in Part K on June 15, 2017 to August 9, 2017. An examination of that court file, of which the court takes judicial notice, indicates that the Petition was filed May 12, 2017 and seeks rent at the monthly rate of $1062.89 for August 2016 through May 2017 plus a balance of $292.47 for July 2016.

Petitioner is correct that none of the five cases cited by Respondent are directly on point and none warrant the vacatur of Petitioner's monetary judgment. Four of those five decisions involve holdover, not nonpayment, proceedings, in which the only issue was possession, and in the one nonpayment proceeding (as well as in three of the four holdover proceedings) the transfer of title to the properties in question had taken place prior to judgment. See Muzio v Rogers (20 Misc 3d 143[A], 867 NYS2d 376 [App Term 2nd Dep't 2008])(affirming lower court's dismissal after trial of a nonpayment proceeding where evidence established that petitioners lacked standing as they had transferred the property prior to the commencement of the proceeding); Besmanoff v Allen (143 Misc 2d 309, 543 NYS2d 608 [App Term 2nd Dep't 1989])(reversing lower court's award in holdover proceeding of judgment of possession to petitioner based on respondent-tenant's undisputed assertion that landlord had sold the premises and no substitution of parties had been made); Leyin Ouyang v Cromelin (45 Misc 3d 1201[A], 2014 NY Slip Op 51416[U](Civ Ct NY Co 2014])(where the evidence at trial established that petitioner had conveyed title to the premises after commencing the holdover proceeding, rather than granting respondent-tenant's motion to dismiss court directed substitution of the new owner under CPLR § 1018); Boyd v Sametz (17 Misc 728 [NY Co 2nd Dist 1896])(summary proceedings to recover possession dismissed where petitioner had conveyed title to the property before commencing the proceedings); Terner v Brighton Foods, Inc (27 Misc 3d 1225[A], 910 NYS2d 409 [Civ Ct Kings Co 2010])(in holdover proceeding, court granted respondent-undertenants' motion to dismiss based on lack of standing where the unrefuted evidence established that petitioners had transferred their interests in the premises three weeks before commencing the case).

Nor has the court's own research turned up any authority for vacating Petitioner's monetary judgment. Certainly, case law makes it clear that the purpose of nonpayment proceedings is to recover possession for failure to pay rent. See, e.g., Patchogue Assoc v Sears, Roebuck & Co (37 Misc 3d 1, 951 NYS2d 314 [App Term 2nd Dep't 2012])("Regardless of a landlord's intent, the purpose of a nonpayment summary proceeding is to recover possession of the subject premises"); 615 Nostrand Ave Corp v Roach (15 Misc 3d 1, 4, 832 NYS2d 379, 382 [App Term 2nd Dep't 2006])("in a summary proceeding, a monetary award in favor of landlord can only be made concomitant with an award of possession"); New York University v Farkas (121 Misc 2d 643, 644, 468 NYS2d 808, 810 [Civ Ct NY Co 1983])("The invention of the summary proceeding was designed to provide the landlord with a simple, expeditious and inexpensive means of regaining possession of his premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of...

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