Stockton v. McElderry, 2022-50161

CourtNew York City Court
Writing for the CourtHON. LYNDON D. WILLIAMS, J.
PartiesGerald Stockton, Administrator of the Estate of Benjamin Stockton, Petitioner-Landlord, v. Byran McElderry, Respondent-Tenant, Jane Doe, Respondent-Undertenant.
Docket Number0939-20,2022-50161
Decision Date24 February 2022

Gerald Stockton, Administrator of the Estate of Benjamin Stockton, Petitioner-Landlord,

Byran McElderry, Respondent-Tenant, Jane Doe, Respondent-Undertenant.

No. 2022-50161

Docket No. 0939-20

City Court of Mount Vernon

February 24, 2022

Unpublished Opinion

Attorneys for Petitioner:

Letiticia Arzu, Esq.

The Bozeman Law Firm PLLC

Attorney for Respondent:

Richard Boatti, Esq.

Boatti PLLC


Petitioner commenced this holdover action in September 2020 seeking to recover the residential premises after expiration of the lease agreement. The Petition provides that the tenancy ended on March 31, 2020 and that $8, 500.00 in arrears plus $10, 200 in use and occupancy is due and owing to petitioner. On September 25, 2020 the parties appeared. Respondent's name was amended from "Byron McEderry" to "Byron McElderry" to reflect the correct spelling of his name.

On February 24, 2021, respondent filed a COVID-19 Hardship Declaration.

On September 7, 2021, petitioner challenged respondent's hardship declaration.

The parties appeared at a COVID-19 hardship hearing on October 6, 2021. The Court found the respondent's hardship claim to be valid. The Court also set a motion schedule for respondent's summary judgment motion.

On October 25, 2021, respondent filed a Notice of Amended Motion for Summary Judgment.

On November 3, 2021, Petitioner's Counsel, Leticia Arzu, filed a letter with the Court, dated November 2, 2021, advising that petitioner was withdrawing the matter. The letter states, "This letter serves to inform you that we are withdrawing the referenced case. We asked the Respondent's attorney if he would be willing to sign a Stipulation withdrawing this case, but in order to do so, he is asking that our client pay his attorney's fees in the amount of $2, 044.00. A copy of his response to my email is attached."

On November 2, 2021, respondent's counsel, Richard Boatti, emailed the court clerks, stating in pertinent part, "The Respondent does not consent to any termination of this action that doesn't result in his attorney's fees getting paid by the Petitioner. Accordingly, the Respondent does not withdraw his Summary Judgment motion and wishes to have that motion adjudicated on the merits."

On November 15, 2021, petitioner filed an Affirmation in Opposition to Respondent's request for attorney's fees.

On December 1, 2021, respondent filed an Affirmation in Reply and In Further Support of Amended Motion for Summary Judgment.

By Decision and Order dated, December 21, 2021, the Court (J. Johnson) held that the Petitioner could not withdraw the matter without the consent of the respondent or leave of court. The court further held that the decision on the pending motions would be held in abeyance until the COVID-19 stay period expired on January 15, 2022.

On February 1, 2022, the parties appeared. Petitioner did not file a motion to discontinue. Petitioner's counsel conceded to the claims in respondent's summary judgment motion and did not make any arguments opposing the merits of the claim. Petitioner's counsel only opposed respondent's request for attorney's fees.

Summary Judgment Motion

In support of the motion for summary judgment, respondent argues that the Notice of Petition and Termination were defective because they do not properly list the respondent's legal name. The petition and notice of petition list him as "Bryan McEddery", but his true legal name is "Bryan McElderry". On September 25, 2020, the petition was amended to reflect the correct spelling as Bryan McElderry with the respondent's consent. Additionally, respondent argues that the termination notice...

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