Islam v. Rodriguez

• Decision Date: 23 May 2022
• Docket Number: L&T Index No. 004800/20
• Citation: 2022 NY Slip Op 31621 (U)
• Parties: JWELLI A ISLAM, Petitioner/Landlord v. MARISOL RODRIGUEZ; MICHAEL WIGLEY; VICTOR MOLINA; "JOHN DOE"; "JANE DOE", Respondents/Occupants 760 Van Nest Avenue, Apt 1st Fl, Bronx NY 10462 Address
• Court: New York Civil Court

2022 NY Slip Op 31621(U)

JWELLI A ISLAM, Petitioner/Landlord
v.
MARISOL RODRIGUEZ; MICHAEL WIGLEY; VICTOR MOLINA; "JOHN DOE"; "JANE DOE", Respondents/Occupants

760 Van Nest Avenue, Apt 1st Fl, Bronx NY 10462 Address

L&T Index No. 004800/20

Civil Court of the City of New York

May 23, 2022

Unpublished Opinion

Attorney for Petitioner: Jayson Blau, Esq.

Attorneys for Respondent Marisol Rodriguez: Alana Murphy, Esq. Mobilization for Justice, Inc.

DECISION & ORDER

Hon. Diane E. Lutwak, HCJ:

Recitation, as required by CPLR 2219(A), of the papers considered in the review of Respondent Marisol Rodriguez's Order to Show Cause to Vacate Default Judgment and Warrant, Dismiss the Proceeding and/or Other Relief:

Papers	NYSCEF Doc #
Order to Show Cause	10, 23
Attorney's Affirmation in Support	11
Respondent's Affidavit in Support With Affidavit of Translation	12, 13
Memorandum of Law	14
Supporting Exhibits A-H	15-22
Petitioner's Affidavit in Opposition	25
Attorney's Affirmation in Opposition	26
Opposing Exhibits A-F	27-32
Attorney's Reply Affirmation	34

Upon the foregoing papers, and for the reasons stated below, Respondent Marisol Rodriguez's Order to Show Cause is decided as follows.

PROCEDURAL HISTORY & FACTUAL BACKGROUND

This licensee holdover eviction proceeding was commenced by Notice of Petition and Petition dated January 22, 2020, predicated upon a "Notice to Quit, Vacate and Surrender" dated December 19, 2019 advising Respondents that they "occupy the subject premises without a written lease", that Petitioner "is unaware of how you came to occupy the subject premises", that, "upon information and belief, you occupy the subject premises as a licensee purportedly granted by the prior owner of the subject premises, whom upon information and

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belief you have a personal relationship with" and that if Respondents did not move out by January 13, 2020 Petitioner would commence a summary eviction proceeding against them. The Petition alleges that the apartment is not subject to rent regulation as it is in a 3-unit building and became vacant after June 30, 1971.

The Petition was filed with the Court on January 28, 2020 and given a return date of February 19, 2020. The affidavit of service of the Petition and Notice of Petition asserts "conspicuous" service on Respondents by posting copies on the door to the premises on February 6, 2020 after two attempts at personal service - first on February 5, 2020 at 3:07 p.m. and second on February 6, 2020 at 6:41 a.m. - followed by additional copies sent on February 7, 2020 by first-class and certified mail. Proof of service was filed with the Court on February 10, 2020.

After Respondents failed to appear, on March 12, 2020 the Court held an inquest and issued a judgment of possession to Petitioner, warrant to issue forthwith. Before Petitioner submitted a warrant requisition, all evictions were stayed and in-person courthouse operations other than essential matters were postponed due to the COVID-19 pandemic, Governor Cuomo's "New York on Pause" Executive Order and orders of Chief Administrative Judge Lawrence Marks of the New York State Unified Court System. Thereafter, upon default, by Decision and Order dated February 8, 2022 the Court granted Petitioner's motion pursuant to current Court Administrative Orders and Directives and Procedures for issuance of a warrant of eviction with leave to execute forthwith.

Respondent Rodriguez thereafter retained counsel who, on March 10, 2022, filed a Notice of Appearance and Order to Show Cause (OSC) seeking vacatur of the default judgment and, upon such vacatur, dismissal of the Petition on the following grounds:

(1) pursuant to CPLR Rules 5015(a)(4) and 3211(a)(8), for lack of personal jurisdiction because service of the Petition was not completed between ten and seventeen days prior to the date the Petition was noticed to be heard as required by Sections 733 and 735(2)(b) of the Real Property Actions and Proceedings Law (RPAPL), citing, inter alia Riverside Syndicate, Inc v Saltzman (49 A.D.3d 402 852 N.Y.S.2d 840 [1^st Dep't 2008]), and Berkeley Assocs Co v Di Nolfi (122 A.D.2d 703, 505 N.Y.S.2d 630 [1^st Dep't 1986]); and/or

(2) pursuant to CPLR Rules 5015(a)(3) and 3211(a)(7) and RPAPL § 741 because she is not a licensee but, based on her prior ownership of the premises and other circumstances, is a tenant at sufferance, requiring a 30-day predicate notice under Real Property Law § 228, not a 10-day notice to quit.

Alternatively, if the Court vacates the default judgment but does not dismiss the proceeding, Respondent seeks leave to file a late Answer pursuant to CPLR § 3012(d). Alternatively, if the Court does not vacate the default judgment, Respondent seeks a stay of execution of the warrant for a reasonable period of time to allow her to "vacate with dignity", pursuant to CPLR

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§ 2201 and RPAPL § 749(3). Respondent explains that she provides full-time...