Parkash 2125 LLC v. Galan

Decision Date06 September 2018
Docket Number12916/2018
Citation84 N.Y.S.3d 724,61 Misc.3d 502
Parties PARKASH 2125 LLC, Petitioner, v. Gisela GALAN, Respondent.
CourtNew York Civil Court

61 Misc.3d 502
84 N.Y.S.3d 724

PARKASH 2125 LLC, Petitioner,
v.
Gisela GALAN, Respondent.

12916/2018

Civil Court, City of New York.

Decided on September 6, 2018


84 N.Y.S.3d 725

Gisela Galan, respondent pro se.

Anurag Parkash, Jamaica, for petitioner.

Michael Weisberg, J.

The decision and order on this motion are as follows:

The Appellate Division has stated that the constitutional right to due process requires that "for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding" ( 170 W. 85th St. Tenants Assn. v. Cruz , 173 A.D.2d 338, 339, 569 N.Y.S.2d 705 [1st Dept. 1991] ). The requirements of due process notwithstanding, the actual text of the warrant of eviction issued to the marshal "command[s]" the removal of not only the named respondent against whom judgment

84 N.Y.S.3d 726

has been issued, but also "all other persons" from the designated property. Who, then, may the city marshal evict pursuant to a judgment and warrant issued in a summary eviction proceeding?

I

Petitioner in this nonpayment summary eviction proceeding named and served only one individual with the notice of petition and petition: Respondent Gisela Galan, the tenant of record, who failed to answer or otherwise appear. A default judgment was entered against her and a warrant issued commanding her removal and "all other persons" in the apartment. Her son later moved to vacate the default judgment, which motion was settled with an agreement whereby execution of the warrant was stayed on condition of payment of arrears by a date certain. In the agreement Respondent's son alleged that no one else was living in the apartment.

This allegation proved false, as at least two occupants were living in the apartment at the time the marshal executed the warrant of eviction. The marshal removed everyone from the apartment. Two individuals, Alexander Pabon and Nicole Rivera, have moved to be restored to possession of the apartment. At a hearing held on the motion, Pabon testified that he moved into the apartment around May 2015, paying Respondent's son $600.00 per month in rent. Respondent lived in the apartment at the time, but moved out a few months later in the Fall of 2015. Respondent's son moved out in early 2018. Rivera testified that she moved into the apartment in late-March or early-April 2018 (after commencement of the proceeding) and that she also paid rent to Respondent's son, in the amount of $650.00 per month. Both Pabon and Rivera testified that they had no knowledge of the proceeding until they were evicted. Petitioner called no witnesses.

II

Cruz 's limitations as to a warrant's effectiveness was not new law in 1991. Eighty years earlier, in an action for damages based on illegal eviction, the Court of Appeals in Fults v. Munro, 202 N.Y. 34, 95 N.E. 23 (1911) evaluated the language of the warrant of eviction that commanded the sheriff "to remove all persons from the said property and to put the said petitioner into full possession thereof." Reversing dismissal of the plaintiff's complaint, the Court held that this language "does not mean literally all persons, but only those in actual possession who are made parties to the proceeding and their guests, agents, servants, and the like" ( id. at 43, 95 N.E. 23 ).

Fults is not an obscure case and its holding is not unknown. Rasch's Landlord and Tenant contains the following entries for "general rule" and "persons removeable" each citing Fults for authority:

"All persons in possession of real property who derive their title through the tenant should be made parties to the proceeding, otherwise their dispossession under the warrant issued therein will be wrongful. They are proper parties." (2 Robert F. Dolan, Rasch's Landlord and Tenant--Summary Proceedings § 38:29 [5th ed 2018] ).

and

"The statutes governing summary proceedings contemplate the joinder of the tenant, and all who derive title through him, in such proceedings instituted by a landlord. These parties cannot lawfully be removed without being given their day in court or an opportunity to object to the proceedings. Therefore, notwithstanding the provision of the Real Property Actions and Proceedings Law that the executing officer shall "remove all persons," it has been held that this section
84 N.Y.S.3d 727
does not justify removal of an occupant of property involved in a summary proceeding who should have been, but was not, made a party to the proceeding." (3 Robert F. Dolan, Rasch's Landlord and Tenant--Summary Proceedings § 46:10 [5th ed 2018] ).

III

Nonetheless, contrary to Fults and Cruz , the warrant issued by the court, as printed from the Unified Case Management System of the Unified Court System, invariably and automatically "command[s]" the removal of the named respondent against whom judgment has been issued "and all other persons" from the designated property.1 The language of the warrant is required by RPAPL § 749(1), which provides that "upon rendering a final judgment for petitioner, the court shall issue a warrant ... commanding the [marshal] to remove all persons, and ... to put the petitioner into full possession." It is the court's experience that, consistent with the language of the statute and the warrant, the marshal to whom the warrant is issued will remove all persons in the subject apartment without regard to whether those persons were named in and served with the petition or whether judgment was entered against them. Some city marshals have confirmed the accuracy of the court's observations: on two occasions over the past three years a small group of marshals has met with the judges of the Housing Court at court-sponsored "seminars," and at these seminars the marshals have confirmed this course of action, justifying their actions by the plain language of the warrant.

The court has confirmed that the language of the warrant always contains the "and all other persons" language, even when judgment has been rendered against only one of two or more respondents. For example, in a hypothetical nonpayment proceeding against John Doe and Jane Doe, it may happen that John Doe answers the petition, appears in the proceeding, and consents to entry of a judgment. Based on this judgment, the petitioner may apply for issuance of a warrant of eviction, prior to any disposition as to Jane Doe. Depending on how the clerk enters the judgment, the judgment will order "that a warrant of eviction shall issue removing John Doe from the described premises" or "that a warrant of eviction shall issue removing all named respondents from the described premises" (emphasis added).2 ,3

But whether the judgment orders removal of "John Doe" or instead "all other persons" has no effect on presence of the "all other other persons" text contained in the warrant itself, as illustrated below. Continuing with the foregoing example: though not required, often a petitioner will wait to apply for issuance of the warrant until after it has also obtained a default judgment against Jane Doe. But where petitioner chooses to not wait for this occurrence, the warrant may issue even though there is no disposition as to Jane

84 N.Y.S.3d 728

Doe. When this happens, the warrant contains the following language directed toward the marshal: "you are commanded to remove the respondent(s) listed below: John Doe." But even though in this example no judgment has been obtained against Jane Doe, the proceeding has not been discontinued against her, and there is otherwise no disposition as to her status in the proceeding, the warrant next states "[a]nd all other persons from the following described premises."

This is the case even when a respondent is specifically listed in the case management system as someone against whom the warrant is not effective. When the clerk is creating the judgment form she also has to choose from all respondents which will be the "parties on warrant." As a default, all respondents are set to be "parties on warrant," even where judgment is being entered only against one of those parties. The clerk must manually uncheck any names that will not be "on warrant." But even if the clerk does uncheck the name of any party against whom judgment has not been entered, although that person's name will not appear on the warrant as someone whom the marshal is directed to remove, the warrant will still include the catch-all "and all other persons."

The above is no mere hypothetical. It is precisely what happened in Ultimate Redevelopment Inc. v. Jose Cruz and Binolka Jaquez , Index no. 59757/17 (Civ Ct. Kings Co 2017), an unrelated nonpayment proceeding previously before this court in which both respondents were tenants of record. One tenant answered, appeared, and consented to a judgment of possession and issuance of a warrant of eviction. The other tenant defaulted. The petitioner applied for and obtained issuance of a warrant based on the judgment it obtained on consent. It also applied for, but never obtained, a judgment against the defaulting party....

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