Javaherforoush v Sherrard

[*1] Javaherforoush v Sherrard 2022 NY Slip Op 50307(U) Decided on April 7, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2021-56 S C

Iraj Javaherforoush, Respondent,

against

Patrick Sherrard, Appellant, Manuela Sherrard, Tenant.

Patrick Sherrard, appellant pro se. Tini Law, P.C. (Francesco P. Tini of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated December 21, 2020. The order denied tenant Patrick Sherrard's motion to vacate (1) a final judgment entered December 13, 2019 against tenant Manuela Sherrard and (2) a judgment entered February 25, 2020 against tenant Patrick Sherrard upon his failure to appear or answer the petition in a nonpayment summary proceeding.

ORDERED that the order is modified by providing that the branch of tenant Patrick Sherrard's motion seeking to vacate the default judgment entered against him on February 25, 2020 is granted; as so modified, the order is affirmed, without costs.

Landlord commenced this nonpayment proceeding in August 2019 seeking possession of the subject apartment based on tenants' failure to pay $8,065 in rent. Tenant Manuela Sherrard appeared and subsequently entered into a stipulation of settlement with the landlord, which she failed to comply with. A final judgment awarding landlord possession and the sum of $10,260, in accordance with the stipulation, was entered in landlord's favor against Manuela Sherrard only, on December 13, 2019. Subsequently, a default money judgment was entered on February 25, 2020 awarding landlord the sum of $8,065 against Patrick Sherrard only. Mr. Sherrard moved to vacate both judgments. The District Court denied the branch of Mr. Sherrard's motion seeking to vacate the money judgment entered February 25, 2020 and implicitly denied the branch of his motion seeking to vacate the final judgment entered December 13, 2019. The February 25, 2020 money judgment in this nonpayment proceeding was improperly entered against Mr. Sherrard [*2]without a concomitant award of possession against Mr. Sherrard (see Carney Realty Corp. v Elite Tent & Party Rental, 2021 NY Slip Op 67327[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Fieldbridge Assoc., LLC v Sanders, 70 Misc 3d 140[A], 2021 NY Slip Op 50128[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Consequently, the branch of Mr. Sherrard's motion to vacate that judgment should have been granted. However, Mr. Sherrard does not have standing to move to vacate the final judgment entered against only Manuela Sherrard on December 13, 2019, and therefore the branch of Mr. Sherrard's motion seeking to vacate that final judgment was properly denied.

Accordingly, the order is modified by providing that the branch of tenant Patrick Sherrard's motion seeking to vacate the default judgment entered against him on February 25, 2020 is granted.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 7, 2022