Tzifil Realty Corp. v. Mazrekaj

• Decision Date: 24 February 2023
• Docket Number: 2023-50278
• Citation: 2023 NY Slip Op 50278 (U)
• Parties: Tzifil Realty Corp., Appellant, v. Hassan "Andy" Mazrekaj, Respondent.
• Court: New York Supreme Court — Appellate Term

2023 NY Slip Op 50278(U)

Tzifil Realty Corp., Appellant, v. Hassan "Andy" Mazrekaj, Respondent.

No. 2023-50278

Supreme Court of New York, Second Department

February 24, 2023

Unpublished Opinion

Felipe E. Orner, for appellant.

Hassan "Andy" Mazrekaj, respondent pro se (no brief filed).

PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS MARINA CORA MUNDY, JJ

Appeal from an order of the Civil Court of the City of New York Kings County (Heela D. Capell, J.), entered November 22 2021. The order denied petitioner's motion seeking the court's recusal, denied petitioner's separate motion dated September 17, 2021, seeking, among other things, an award of use and occupancy and that the court decide the pending recusal motion, granted occupant's cross motion to sever petitioner's claim for use and occupancy, and dismissed petitioner's claim for possession (see CPLR 409 [b]) in an RPAPL 713 (11) summary proceeding.

ORDERED that the order is modified by providing that so much thereof as dismissed petitioner's claim for possession is vacated, petitioner's claim for possession is reinstated, occupant's cross motion to sever petitioner's claim for use and occupancy is denied, and the matter is remitted to the Civil Court for a new determination of petitioner's September 17, 2021 motion other than the branch thereof regarding recusal; as so modified, the order is affirmed, without costs.

Petitioner commenced this summary proceeding pursuant to RPAPL 713 (11) in December 2019 to recover possession of a superintendent's apartment from occupant, the former superintendent whose employment had been terminated by petitioner. Insofar as is relevant to this appeal, petitioner subsequently moved for Judge Heela D. Capell to recuse herself. In a separate order to show cause signed on September 17, 2021, petitioner moved for, among other things, the court to render a decision on the previously filed motion for Judge Capell to be recused, "an immediate trial" of the proceeding, the entry of a determination of the amount of monthly use and occupancy, and a judgment for 21 months of use and occupancy then owed. It was undisputed that occupant vacated the premises in September 2021. Occupant cross-moved to sever petitioner's use and occupancy claim. In an order dated November 22, 2021, the Civil Court (Heela D. Capell, J.) denied petitioner's motion seeking the court's recusal, denied petitioner's September 17, 2021 motion seeking, among other things, "an immediate trial" of the proceeding and a judgment awarding use and occupancy then owed, granted occupant's cross motion to sever petitioner's claim for use and occupancy, and dismissed petitioner's claim for possession.

The "record is inadequate to enable this Court to review" petitioner's recusal arguments on appeal (KISSM Realty Corp. v Brooklyn Community Mgt., LLC, 129 A.D.3d 781, 782 [2015]), as the underlying motion papers seeking recusal were not contained in the reproduced record. Contrary to petitioner's arguments on appeal, the Civil Court did not err by not entertaining petitioner's request that sanctions be imposed against occupant and occupant's attorney, because, as a threshold issue, the imposition of sanctions must be made upon notice to afford the parties "a reasonable opportunity to be heard on the issue of sanctions" (Singh v North Shore Univ. Hosp., 76 A.D.3d 1004, 1006 [2010]; see Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [d]) and petitioner merely mentioned sanctions in the body of its motion.

The Civil Court appears to have concluded that, because occupant vacated the premises during the pendency of the proceeding petitioner's claim for possession had to be dismissed. Thus, the court granted occupant's cross motion to sever petitioner's claim for use and occupancy and dismissed what remained of the petition-petitioner's claim for possession (see CPLR 409 [b]). However, in a summary proceeding, the court retains jurisdiction to award...