1521 Sheridan LLC v. Vasquez

• Decision Date: 22 June 2017
• Citation: 56 Misc.3d 1061,55 N.Y.S.3d 645
• Parties: 1521 SHERIDAN LLC, Petitioner–Landlord, v. Estela VASQUEZ, Respondent–Tenant.
• Court: New York Civil Court

56 Misc.3d 1061
55 N.Y.S.3d 645

1521 SHERIDAN LLC, Petitioner–Landlord,
v.
Estela VASQUEZ, Respondent–Tenant.

Civil Court, City of New York, Bronx County.

June 22, 2017.

55 N.Y.S.3d 646

Law Offices of Scott D. Gross Mineola, Attorney for Petitioner.

Richard N. Kahn, Esq., BOOM!Health Legal Services, Bronx, Attorney for Respondent.

DIANE E. LUTWAK, J.

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

55 N.Y.S.3d 647

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[A], 867 N.Y.S.2d 367, 2008 WL 3874712 (App.Term 2nd Dep't 2008), Besmanoff v. Allen, 143 Misc.2d 309, 543 N.Y.S.2d 608 (App.Term 2nd Dep't 1989), Leyin Ouyang v. Cromelin, 45 Misc.3d 1201[A], 2014 N.Y. Slip Op. 51416[U], 2014 WL 4744640 (Civ.Ct.N.Y.Co.2014), Boyd v. Sametz, 17 Misc. 728, 40 N.Y.S. 1070 (N.Y.Co. 2nd Dist.1896), and Terner v. Brighton Foods, Inc., 27 Misc.3d 1225[A], 910 N.Y.S.2d 409, 2010 WL 2012033 (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...