Mohan v. Balgobin

Decision Date06 February 2023
Docket NumberL &amp,T Index No. 303571/2020
Citation2023 NY Slip Op 23041
CourtNew York Civil Court
PartiesDeonarine Mohan & Vasanti Mohan, Petitioners-Landlords, v. Ramesh Balgobin, Lilawatee Balgobin, Kishan Balgobin, "John Doe" & "Jane Doe," Respondents-Tenants.

Matilde Pena & Associates, P.C., By: Matilde Pena Attorney for Petitioner.

Urban Justice Center, Safety Net Project, By: Valerie Smosna Attorneys for Respondents.


Recitation as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion and Affidavits Annexed 1-9

Order to Show Cause and Affidavits Annexed

Answering Affidavits 10-11

Replying Affidavits 12-15



After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:


The Petitioners, Deonarine Mohan and Vasanti Mohan ("Petitioners") commenced this holdover proceeding against Ramesh Balgobin, Lilawatee Balgobin, Kishan Balgobin,"John Doe" and "Jane Doe" ("Respondents") alleging Respondents occupied the premises on a month-to-month tenancy that has been terminated. The ninety (90) day notice of termination ("notice of termination") is dated June 22, 2020 and expired on September 30, 2020. Petitioners and Respondents, Ramesh Balgobin and Lilawatee, Balgobin are represented by counsel. Respondents, Kishan Balgobin "John Doe" and "Jane Doe" have not appeared.

Petitioners move to strike Respondents' jury demand pursuant to Real Property Actions and Proceedings Law (RPAPL) §745, Uniform Justice Court Act (UJC) §1303, NY City Civil Ct. Act (CCA) §1303, and Civil Practice Law and Rules (CPLR) §4101.

The relevant history of this proceeding is as follows: This case was commenced by service of a Petition and Notice of Petition dated October 26, 2020. [1] Respondents filed a COVID-19 Hardship Declaration dated February 8, 2021. [2] The parties appeared for the first conference in the Intake Part on February 4, 2022, and this proceeding was adjourned for Respondents to retain counsel. On March 1, 2022, the parties appeared via counsel and this proceeding was adjourned for Respondents' counsel to interpose an answer. Respondents' counsel filed a verified answer and counterclaims on March 15, 2022. [3] The answer filed did not contain a jury demand. The parties then moved and cross moved for summary judgment which this Court denied. On October 28, 2022, Respondents' counsel filed a jury demand and no fee authorization affirmation. [4]


The issue before this court is whether Respondents' jury demand should be stricken in light of having filed an answer seven (7) months prior to filing the demand.

The time to file a jury demand in a summary proceeding is traditionally governed by conflicting language of CCA 1303 and RPAPL 745.

NY City Civ Ct Act § 1303 states "In a summary proceeding to recover possession of real property, the demand may be made by the tenant at the time of answering..." CCA 1303 (a) provides that if a party appears in person to answer, he or she "shall demand a jury trial at that time."

Distinctly, RPAPL 745[1] states "where triable issues are raised, they shall be tried by the court unless, at the time the petition is noticed to be heard, a party demands a trial by jury, in which case trial shall be by jury. At the time when issue is joined the court, at the request of either party shall adjourn the trial of the issue, not less than fourteen days, except by consent of all parties."

In order to interpret the conflicting languages of CCA 1303 and RPAPL 745, the Court amended DRP-103 [5] ("DRP"). DRP-103 states in relevant part:

"In a summary holdover proceeding to recover real property the Clerk is to accept a jury demand and the required filing fee as having been timely filed is the following instances:
a) By the Tenant/Respondent: At any time of answering. "The time of answering" is to mean the time when the case is first noticed to be heard or any subsequent adjourned date prior to the commencement of the trial."

"When interpreting a statute, the general rule is that the "unambiguous language of [the] statute is alone determinative" of the legislature's intent. 111-50 Realty Corp. v Melgar, 70 Misc.3d 981, 985 [Civ Ct 2020] citing Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000].

Further "In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Tompkins v. Hunter, 149 NY 117, 122-123, 43 N.E. 532); see also, (Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d 327, 689 N.E.2d 1373.)

At the onset of the court's analysis of DRP-103 the court notes the plain language that states a jury demand may be made "at any time of answering". The DRP proceeds to define the time of answering with language that mirrors RPAPL 743 which governs when an answer may be filed in a holdover proceeding.

RPAPL 743 states in relevant part an answer is to be asserted or filed "at the time when the Petition is to be heard." This statute has routinely been interpreted by the Courts to mean that the time for Respondent "to file an answer is extended by adjournment of the proceeding unless 'arrangements to the contrary have been made.'" (Crotona Parkway Apts. HDFC v Depass, 68 Misc.3d 1226 (A) [Civ Ct 2020].)

Pursuant to this language, an answer and accompanying jury demand may be filed any time before trial unless explicitly stated by stipulation or order. However, the plain language of DRP-103 does not provide that a jury demand may be made when an answer has already been filed. In the matter at bar, the Respondents filed an answer (7) months before the filing of a jury demand. Several months past the time of answering and Respondents have not moved to amend the answer. Accordingly, Respondents' jury demand is deemed untimely.

Acceptance of untimely jury demand

Respondents argue should the court find the jury demand to be untimely, under CCA 1303 (c) "the Court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result."

"Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" (Skrodelis v Norbergs, 272 A.D.2d 316, 316-17 [2d Dept 2000]).

Petitioners purport they are prejudiced by Respondents untimely rent demand as the proceeding will be delayed by the process of choosing jurors. Petitioners further argue the jury would focus on the familial relationships between the party instead of the legal issues at hand. Petitioners argue this court should follow the analysis set forth by the Appellate Term in (Washington v. Palanzo, 192 Misc.2d 577 [NY App. Term 2002]) In Palanzo, the Respondent filed an answer and jury demand on the day of trial and after several adjournments. The court held that the jury demand was untimely because the movant appeared pro se on the petition's return date and filed a document prepared by an attorney raising affirmative defenses and demanding the proceedings dismissal. The movant was then represented by counsel through several adjournments and waited to the day of trial to file an answer appended with a jury demand. The case a bar is distinguishable from Palanzo as the case at bar was scheduled by order for a pretrial conference when the jury demand was filed and not the eve of trial as in Palanzo. Further, Petitioners fail to provide a showing of injury, loss of evidence, or some disadvantage resulting from the delay. Nonetheless, the filing of jury demand seven months after filing an answer is significant. Respondents explain the delay by stating they believed the matter would be dismissed through motion practice. This rational is unavailing.

Respondents' suggestion the court seek guidance from (Gluck v. Wiroslaw, 113 Misc.2d 499, 449 N.Y.S.2d 567 [NY City Civ. Ct. 1982]) is also unavailing. In Wiroslaw the Respondent served a late answer that was deemed timely as no prejudice for the late answer was expressed. The court in Wiroslaw rationalized "the jury demand is deemed served at the time tenant answered, as required by the court rule above. Since we have already determined the answer to be timely, the jury demand should not be stricken."

This is distinguishable from the matter at bar where Respondents have filed an answer several months in advance of filing a jury demand and have not sought to amend the answer. In the instant proceeding neither party avails the court as to whether or not the court should deny or grant relief pursuant to CCA 1303 (c). Accordingly, the court turns its analysis to CPLR 4101.

Equitable defenses and Counterclaims requiring a trial by the court

Petitioners argue that should the court deem the jury demand timely, the court should strike the jury demand pursuant to CPLR 4101. CPLR 4101 states in relevant part "the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317, except that equitable defenses and equitable counterclaims shall be tried by the court."

Petitioners assert Respondents' verified answer and counterclaims [6] interpose affirmative defenses and related counterclaims which require to case to be tried by the court. Petitioners specifically note Respondents' second affirmative defense and first counterclaim seek the imposition of a life estate. Petitioners also note Respondents' fourth affirmative...

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