Opinion
L & T 301625/20
09-24-2021
SEAVIEW TOWERS 2006, L.P., Petitioner, v. Kalia CALWARD, John Doe, Jane Doe, Respondents.
Neal B. Galfunt, Esq., Alizio & Galfunt, L.L.P., 1551 Franklin Avenue, Mineola, NY 11501, Attorneys for Petitioner
Neal B. Galfunt, Esq., Alizio & Galfunt, L.L.P., 1551 Franklin Avenue, Mineola, NY 11501, Attorneys for Petitioner
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to restore, for a default judgment, and for issuance of a warrant and execution thereon:
Papers Numbered
Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF No. 5-10)
Upon the foregoing cited papers, the decision and order on petitioner's motion is as follows.
PROCEDURAL HISTORY
This nonpayment proceeding was commenced in November 2020. Petitioner made the instant motion to restore and for a default judgment and related relief in May 2021. The motion appeared on the HMP calendar on July 14, 2021 and August 23, 2021. Respondents failed to appear on those dates and the motion was adjourned to September 24, 2021 in Part E. Before the September 24, 2021 court date, the court sent postcard notification and email notification to respondents. At the court date on September 24, 2021, the court attempted to call respondents at the telephone number provided by petitioner's attorney but the call failed to connect. Upon respondents' failure to appear by the court's default time, the court deemed petitioner's motion submitted on default and reserved decision.
DISCUSSION & CONCLUSION
Petitioner's motion first seeks to restore this proceeding to the court's calendar. This request is granted. Petitioner's request for a default judgment and related relief is currently governed by L 2021, ch 417, which includes a provision stating that "[n]o court shall issue a judgment in any proceeding authorizing a warrant of eviction against a respondent who has defaulted prior to January 15, 2022, without first holding a hearing after the effective date of this act, upon motion of the petitioner." (Part C, Subpart A, Section 5). Although petitioner's motion was made before the enactment of L 2021, ch 417, the court deems it to satisfy the motion requirement under the statute.
Since petitioner's motion does not establish each of the elements of petitioner's cause of action in this nonpayment proceeding (see 1646 Union, LLC v. Simpson , 62 Misc 3d 142[A], 2019 Slip Op 50089 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 265 Realty, LLC v. Trec , 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) such that the court could make a summary determination pursuant to CPLR § 409(b), the court deems a hearing to be required before the ultimate relief requested in petitioner's motion can be granted.
Although hearings were not required before default judgments could be granted in nonpayment proceedings after Brusco v. Braun , 84 NY2d 674 [1994] was decided by the Court of Appeals, the "hearing" requirement in L 2021, ch 417, which applies to all eviction proceedings, is an explicit derogation from RPAPL § 732(3) (which otherwise governs defaults in nonpayment proceedings). In Brusco , the Court of Appeals focused on the lack of a hearing requirement for nonpayment proceedings in RPAPL § 732 (in contrast to the reference to one for all other proceedings in RPAPL § 731 ) to support its holding. Brusco , 84 NY2d at 681.
Accordingly, petitioner's motion is granted to the extent of setting it down for a hearing on the ultimate relief requested. The hearing will be scheduled for October 21, 2021 at 3:00 PM in Part E, Room 404, 89-17 Sutphin Boulevard, Jamaica, New York 11435. Appearances may be virtual via Teams; provided, however, that any witness shall have video capability. Petitioner's attorney and/or witness shall also be prepared to address the subjects in Administrative Order 245/21 at the hearing. Any exhibits shall be emailed to the court no later than October 20, 2021.
This Decision/Order is being filed to NYSCEF. Petitioner's attorney shall serve a copy of this Decision/Order upon each respondent by first class mail no later than September 30, 2021. Timely service shall suffice as notice of the hearing pursuant to L 2021, ch 417, Part C, Subpart A, Section 5.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.