Triangle Props. #14, LLC v Beauty Salon Depot/ Beauty U.S.A

[*1] Triangle Props. #14, LLC v Beauty Salon Depot/ Beauty U.S.A 2010 NY Slip Op 51901(U) [29 Misc 3d 132(A)] Decided on November 8, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., TANENBAUM and LaCAVA, JJ
2009-1970 S C.

Triangle Properties #14, LLC, Respondent, The

against

Beauty Salon Depot/ Beauty U.S.A and ZORAYA E. GOMEZ, Appellants.

Appeal from an order of the District Court of Suffolk County, Second District (Stephen L. Ukeiley, J.), dated June 24, 2009. The order denied appellants' motion to vacate a default final judgment of possession and to be restored to possession, and for, among other things, an award of damages for wrongful eviction.

ORDERED that the order is modified by providing that the branch of appellants' motion seeking to vacate the default final judgment is granted; as so modified, the order is affirmed without costs.

In this commercial nonpayment summary proceeding, appellants failed to appear, and a default final judgment was entered on February 27, 2009, awarding
landlord possession and the sum of $7,667. It is undisputed that, after the final judgment was entered, landlord did not have the warrant executed, but rather resorted to a "self-help" eviction.

Subsequently, appellants moved to vacate the default final judgment and to be restored to possession, as well as for, among other things, damages for wrongful eviction, arguing that they had not received notice of the proceeding, that landlord was seeking to collect, among other things, legal fees from a prior summary proceeding, and that landlord had wrongfully locked them out. In opposition to the motion, landlord argued, among other things, that, at the time it had reentered the premises, it believed that appellants had abandoned the premises, and noted that the parties' lease gave landlord the right to reenter and regain possession in the case of appellants' abandonment of the premises. The District Court denied appellants' motion.

In support of their motion, appellants offered a detailed, non-conclusory affidavit stating that they had not received notice of the proceedings. Appellants also showed a meritorious defense in that landlord was improperly attempting, in this nonpayment summary proceeding, to collect legal fees incurred in a different proceeding (see e.g. 930 Fifth Corp. v King, 42 NY2d 886 [1977]; O'Connell v 1205-15 First Ave. Assoc., LLC, 28 AD3d 233 [2006]; Helmsley v Clayton & Co., 60 AD2d 808 [1978]). It is noted, in addition, that it appears that Zoraya E. Gomez is not a tenant but a mere guarantor, and a guarantor is not a proper party to a summary proceeding (Urstadt Biddle Props., Inc. v Excelsior Realty Corp., 21 Misc 3d 139[A], 2008 NY [*2]Slip Op 52354[U] [App Term, 9th & 10th Jud Dists 2008]; Phoenix Indus., Inc. v Ultimate Sports, LLC, 19 Misc 3d 129[A], 2008 NY Slip Op 50520[U] [App Term, 9th & 10th Jud Dists 2008]). Accordingly, appellants made a sufficient showing to vacate the default final judgment.

However, appellants failed to demonstrate that they were entitled to any of the other requested relief. As to appellants' request to be restored to possession, it is undisputed that appellants were not removed pursuant to a judgment or order of the court, and, therefore, the court was without authority, in this nonpayment proceeding commenced by landlord, to direct landlord to restore appellants to possession (see e.g. Ric-Mar Equity Ventures v Murrell, 184 Misc 2d 298 [App Term, 2d & 11th Jud Dists 2000]; Tsafatinos v Jimenez, NYLJ, Feb. 9, 1999 [App Term, 2d & 11th Jud Dists]). As to appellants' request to, in effect, assert a counterclaim for damages, such request was based upon landlord's allegedly improper self-help eviction. Since the counterclaim had nothing to do with the rent being sought by landlord in the instant proceeding, the District Court did not improvidently exercise its discretion in refusing to allow appellants to assert such a claim in this proceeding (see e.g. City of New York v Candelario, 223 AD2d 617 [1996]; V & J Inc. v 2320 Rte. 112, LLC, 13 Misc 3d 30 [App Term, 9th & 10th Jud Dists 2006]).

Accordingly, the order is modified by providing that the branch of appellants' motion seeking to vacate the default judgment is granted, and the order is otherwise affirmed.

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010