Brusco v. Braun

• Decision Date: 07 December 1993
• Citation: 605 N.Y.S.2d 13,199 A.D.2d 27
• Parties: In re Nicola S. BRUSCO, Petitioner-Appellant, For a Judgment, etc., v. Richard F. BRAUN, etc., et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 13

605 N.Y.S.2d 13

199 A.D.2d 27

In re Nicola S. BRUSCO, Petitioner-Appellant,

For a Judgment, etc., v. Richard F. BRAUN, etc., et al., Respondents-Respondents.

Supreme Court, Appellate Division,

First Department.

Dec. 7, 1993.

Before CARRO, J.P., and ELLERIN, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (William P. McCooe, J.), entered on or about September 1, 1992, which denied petitioner's application pursuant to CPLR article 78 to compel respondent Civil Court Judge Richard F. Braun to sign a default judgment in this residential nonpayment proceeding without conducting an inquest and which dismissed the petition, modified, on the law, to the extent of granting so much of the petition as seeks an order directing respondent Civil Court Judge to enter judgment of possession in favor of petitioner, including the rent demanded in the notice of petition and, except as so modified, affirmed, without costs.

In this proceeding in the nature of mandamus, petitioner challenges the authority of a judge to schedule an inquest following the tenant's default in answering a nonpayment proceeding brought pursuant to section 711(2) of the Real Property Actions and Proceedings Law. At issue is whether section 732(3) of that statute means precisely what it says.

The statute is clear and unambiguous, leaving no room for judicial interpretation (McKinney's Cons.Laws of N.Y., Book 1, Statutes § 76), and entry of judgment is enforceable by way of mandamus directed to the court (People ex rel. Allen v. Murray, 2 Misc. 152, 155-157, 23 N.Y.S. 160, aff'd, 21 N.Y.S. 797, aff'd, 138 N.Y. 635, 33 N.E. 1084 [1893]. Furthermore, we exercise the prerogative to administer and enforce compliance with procedures adopted by rule of this Court (RPAPL 732; Uniform Rules for Trial Cts. [22 NYCRR] § 208.42[d].

The facts are not in dispute. Petitioner commenced this summary proceeding to recover possession of real property (RPAPL 701 et seq.) on the grounds of nonpayment of rent in the amount of $3,626.04, comprising rent for the months of December 1991 through and including March 1992, plus legal fees. The attorney's affidavit of service recites that he personally served the petition and notice of petition on the tenant at 8:00 p.m. on March 16, 1992.

Following the tenant's failure to answer within five days in compliance with RPAPL 732(1), petitioner submitted a request for a final order directing entry of judgment in her favor (RPAPL 732[3]; 747[1] on March 27, 1992. The application was placed on the Judgment and Warrant Residential Default Applications Calendar and made returnable on April 13, at which time counsel for petitioner appeared before respondent Civil Court Judge Richard F. Braun. Counsel was informed that the matter would be scheduled for inquest and that inquest would not be heard until May 1. Counsel then made application to the court for judgment without inquest. The application was denied and the instant proceeding ensued.

It appears from the record before us that it is the practice of respondent Civil Court Judge to hold an inquest in every instance where application is made for entry of judgment by default in a residential nonpayment proceeding. In his affidavit in support of the petition for a writ in the nature of mandamus, counsel for petitioner contends that the court does not have discretion to conduct an inquest where a tenant defaults in answer to a nonpayment proceeding subject to the provisions of RPAPL 732. In answer to the petition, respondents assert only the affirmative defense that the petition fails to state a cause of action upon which relief may be granted.

Supreme Court dismissed the petition on the ground that mandamus does not lie to compel performance of a discretionary act (citing Klostermann v. Cuomo, 61 N.Y.2d 525, 539, 475 N.Y.S.2d 247, 463 N.E.2d 588). As authority for the proposition that the holding of an inquest upon default in a nonpayment proceeding is discretionary, the court relied on Matter of Park Holding Co. v. Arber, 145 Misc.2d 39, 545 N.Y.S.2d 1000. However, the reasoning of this case is fatally flawed, and its conclusion that inquest is a prerequisite to judgment in every summary proceeding to recover possession of real property is entirely erroneous.

RPAPL 732 is made applicable to nonpayment proceedings in Civil Court by the Uniform Rules for Trial Courts (22 NYCRR) § 208.42(d) pursuant to the authority vested in the Appellate Division of the Supreme Court. The statute provides: "If the respondent fails to answer within five days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service." (RPAPL 732[3].) This unequivocal provision mandates entry of a final judgment of possession in favor of the petitioner upon a tenant's default (McKinney's Cons.Laws of N.Y., Book 1, Statutes § 177[a]. The only discretion afforded by the statute is a stay in issuance of the warrant of eviction for up to ten days to permit the tenant further opportunity to tender the rent due and so avoid eviction (RPAPL 749[3]; see, J.A.R. Mgt. Corp. v. Foster, 109 Misc.2d 693, 442 N.Y.S.2d 723). The question of attorney's fees, which may be included in the judgment when the terms of the lease so provide, is an entirely separate matter that is the proper subject of a hearing (Simithis v. 4 Keys Leasing & Maintenance Co., 151 A.D.2d 339, 341-342, 542 N.Y.S.2d 595; Cier Indus. Co. v. Hessen, 136 A.D.2d 145, 526 N.Y.S.2d 77).

It should be noted that, unlike a holdover proceeding pursuant to RPAPL 711(1) or a proceeding where no landlord-tenant relationship exists pursuant to RPAPL 713, RPAPL 732 constitutes an exception to the general rule that a summary proceeding shall be decided at a hearing (RPAPL 731[2]; see, CPLR 409). It provides that a hearing is to be scheduled only in the event that the tenant answers "before the clerk" (RPAPL 732[1], [2]. Upon failure to answer within five days, the statute directs entry of judgment for the petitioner (RPAPL 732[3].

In Park Holding Co. v. Arber, supra, much was made of the Legislature's employment of the language "the judge shall render judgment in favor of the petitioner" (RPAPL 732[3]. The court opined (supra, at 43, 545 N.Y.S.2d 1000), without citation of authority, that the term "render" denotes "not a mere ministerial act" but "a judicial process which should be performed in accordance with CPLR 3215(b)", which sets forth the procedure for entry of a default judgment before the court. The opinion concludes, "Had the Legislature intended that final judgments of possession on default be granted without inquest by a mere ministerial act, it could have specified that such judgments could be granted and entered by the clerk and that application to a Judge for the rendering of a judgment was not necessary" (id.).

The distinction sought to be drawn between "render" and such kindred terms as "grant", "give" or "award" is purely semantic. "Render" and "give" are synonymous in the context of directing the entry of judgment (Garner, A Dictionary of Modern Legal Usage, at 474). A far more compelling explanation for addressing the statutory command to the judge is to provide consistency in the procedure for entry of judgment in special proceedings generally. The provisions of both RPAPL 747[1] and CPLR 411 state, in haec verba, "The court shall direct that a [final] judgment be entered determining the rights of the parties". Moreover, RPAPL 732(3) contains a provision to stay issuance of the warrant, and it is beyond cavil that the imposition of a stay is a matter uniquely entrusted to the discretion of a judge. The entry of judgment and the determination on the discretionary stay, collectively, cannot therefore be characterized as a "mere ministerial act" within the authority of the clerk, as supposed in Park Holding Co. v. Arber, supra.

If the rationale of Park Holding were to be accepted, a nonpayment proceeding would be treated no differently from any other summary proceeding to recover possession of real property. RPAPL 732 would then be rendered mere surplusage, a result which is unacceptable (see, Sanders v. Winship, 57 N.Y.2d 391, 396, 456 N.Y.S.2d 720, 442 N.E.2d 1231; McKinney's Cons.Laws of N.Y., Book 1, Statutes § 98[a].

Nor is the determination in Park Holding sustainable under the reasoning applied by this Court in Joosten v. Gale, 129 A.D.2d 531, 514 N.Y.S.2d 729. The Park Holding opinion notes (supra, at 44, 545 N.Y.S.2d 1000) that the petition in the underlying summary proceeding was verified by the petitioner's attorney on information and belief pursuant to RPAPL 741, and not by the landlord. In support of its conclusion that the pleadings will not sustain the entry of judgment, the court seizes upon the objection articulated in Joosten v. Gale, supra,--that a pleading verified by one without personal knowledge of the facts is not a proper basis for entry of judgment by default. However, this conclusion presumes the relevance of CPLR 3215 to a proceeding brought under the Real Property Actions and Proceedings Law, and specifically under section 732 of the statute. Applying the rules of statutory construction to the conflicting provisions, it is clear that CPLR 3215 is inconsistent with, and thus superseded by, the provisions of RPAPL 732 (McKinney's Cons.Laws of N.Y., Book 1, Statutes § 397), and the holding in Joosten is therefore inapposite to the proceeding before the court in Park Holding.

Similarly, had the Legislature intended CPLR 3215(b) to be applicable to summary proceedings, section 1402 of the New York City Civil Court Act, governing entry of default judgments generally, would indicate as much. This provision goes to some length to state the rather obvious pro...