1168 Rockaway Ave. Corp. v Singh

[*1] 1168 Rockaway Ave. Corp. v Singh 2017 NY Slip Op 50125(U) Decided on January 31, 2017 Civil Court Of The City Of New York, Kings County Montelione, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2017
Civil Court of the City of New York, Kings County

1168 Rockaway Avenue Corp., Petitioner-Landlord,

against

Nirmal Singh, Respondent-Tenant, "John Doe" and "Jane Doe," Respondents-Tenants.



105051-2015



Petitioner-landlord is represented by the Law Firm of Heitner & Breitstein, by Eugene M. Banta, Esq, 26 Court Street, Brooklyn, NY 11242 (718-748-8080)

Respondent-tenant is represented by the Law Offices of Marc Aronson, 107 Smith Street, Brooklyn, NY 11201 (718-237-1960)
Richard J. Montelione, J.

Petitioner-landlord's motion to amend the caption to add Newton Miller, in place and stead of "John Doe," and for a warrant of eviction against all named respondents, came before the Court on January 4, 2017. In addition to the oral arguments of counsel, the Court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Papers Numbered

Petitioner-landlord's notice of motion dated December 20, 2016; attorney affirmation of Eugene M. Banta, Esq., affirmed on December 21, 2016; affidavit of John Goldberg, sworn to on December 19, 2016; Exhibit A-D 1

Respondent-tenant's attorney affirmation of Marc Aronson, Esq., affirmed on January 3, 2017; affidavit of Newton Miller, sworn to on January 3, 2017; and Exhibit A 2

The petitioner-landlord moves to amend a judgment of possession and warrant of eviction by amending the caption to substitute "Newton Miller" in lieu of "John Doe." The respondent-tenant objects asserting that the court does not have jurisdiction because the petitioner-landlord knew about this respondent and failed to name this person or his business in any predicate notices or pleadings. Newton Miller is the president of "Stibby's Auto Repair" and the name of this business is listed on the store front of the building as shown in a photo submitted to the [*2]court.

The respondent-tenant argues that under Redstone Garage Corp. v New Breed Automotive, Inc., 2016 NY Slip Op 51776(U) (AT, 2nd Dept. 2016), the court has no jurisdiction because the petitioner was aware of the respondent and failed to name the respondent in the predicate notice, notice of petition or petition.

Both parties, through an attorney stipulation dated March 16, 2016, "(i)n consideration of the petitioner's agreement to adjourn the trial," consented to the payment of use and occupancy. Subsequently, the court, per the Hon. Harriet L. Thompson, issued a self-executing order dated October 24, 2016 directing payment of use and occupancy. The relevant part of the order reflects, "(i)f not paid (use and occupancy), answer stricken and petitioner may enter a final judgment of possession (and the proceeding is) adjourned for trial for November 29, 2016." There are self-executing orders setting use and occupancy from at least two judges with a penalty of striking the answer if the use and occupancy was not paid. Even in the absence of a self-executing order, the respondent is collaterally estopped from raising a jurisdictional defect because there is a stipulation settling the matter between the attorneys on behalf of the respective parties, which included Stibays Auto Repair Inc. This stipulation was "so ordered" by the court on July 30, 2016. The settlement agreement, however, provided for a lease to be signed by July 31, 2016 and it was not. Given that respondent Newton Miller's counsel's signature appears on the court's order issued on July 30, 2016 "on consent," the court will not accept respondent's arguments that the court has no jurisdiction over Newton Miller or Stibays Auto Repair Inc. See Biener v Hystron Fibers, Inc., 78 AD2d 162, 167 [1st Dept 1980], where court held,

A 'party may by agreement consent to the jurisdiction of a court which would not otherwise have authority over him' (Matter of Bauer [MVAIC], 31 AD2d 239, 241; see Gilbert v Burnstine, 255 NY 348). Where the parties enter into a stipulation recorded in the minutes of the court, the settlement agreement terminates all of the claims of the parties theretofore made in the action, and the agreement becomes enforceable as a contract binding on all the parties thereto (Langlois v Langlois, 5 AD2d 75, 78). 'Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights.' (Matter of New York, Lackawanna & Western R.R. Co., 98 NY 447, 453.)

There is no dispute that the respondent Newton Miller failed to pay use and occupancy as required by the court's most recent order setting use and occupancy. There is no cross motion to vacate this order or to vacate the default in failing to pay use and occupancy. The defense of lack of jurisdiction, which is an affirmative defense, is therefore stricken. See Is. Wholesale Wood Supplies, Inc. v Blanchard Indus., Inc., 101 AD2d 878 (2nd Dept 1984). The respondent-tenant has offered no arguments regarding the effect of the stricken answer.

Furthermore, under RPAPL § 745 (2) (Consol., Lexis Advance through 2016 released chapters 1-519),

In the city of New York: (a) In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy, which may be established without the use of expert testimony, unless the respondent can establish, at an immediate hearing, to the satisfaction of the court that respondent has properly interposed one of the following defenses or established the following grounds (Emphasis Added):(i) the petitioner is not a proper party to the proceeding pursuant to section seven [*3]hundred twenty-one of this article; or(ii) (A) actual eviction, or (B) actual partial eviction, or (C) constructive eviction; and respondent has quit the premises; or(iii) a defense pursuant to section one hundred forty-three-b of the social services law; or(iv) the court lacks jurisdiction (Emphasis Added).

A review of the records does not show that respondent-tenant ever requested a hearing to remove the imposition of use and occupancy by establishing, "at an immediate hearing, to the satisfaction of the court, that respondent has properly interposed (the defense of lack of jurisdiction)." RPAPL § 745 (2). In fact, there is an attorney stipulation agreeing that respondent "shall pay use and occupancy" dated March 16, 2016 as well as subsequent court orders directing the payment of use and occupancy.

Issue: When a tenant fails to pay use and occupancy set by the court under penalty of striking an answer, does the tenant still retain a defense of lack of jurisdiction?

Redstone Garage Corp. v New Breed Automotive, Inc., supra, is distinguishable because it does not appear to involve a failure of a tenant to pay use and occupancy or a self-executing court order directing that the tenant's answer be stricken in the event of a failure to do so or a "so ordered" stipulation. Once an answer is stricken, respondent is deemed to waive his jurisdictional defense and admit liability (see Cillo v Resjefal Corp., 13 AD3d 292, 294, 787 NYS2d 269 [1st Dept 2004], which involves a self-executing discovery order striking the answer if there is a failure to respond to discovery demands, quoting in part Rokina Opt. Co. v Camera King, 63 NY2d 728, 730, 469 NE2d 518, 480 NYS2d 197 [1984]["[o]nce (defendant's) answer was automatically stricken as a result of his default, he, upon failing to vacate such default, was deemed to 'admit all traversable allegations in the complaint, including the basic allegation of liability,' but not damages"]; cf. Ramos v Stern, 100 AD3d 409, 409 [1st Dept 2012]).

This court finds that a tenant who files an answer with a jurisdictional defense, but fails to request an immediate hearing pursuant to RPAPL § 745 (2) at the time the court considers setting use and occupancy, or fails to move pursuant to CPLR 5511 to set aside the default regarding a self-executing order to strike the answer, submits to the jurisdiction of the court (cf. 1234 Broadway LLC v Caroline K., 47 Misc 3d 673 [Civ Ct, Bronx County 2015][where court set aside default in paying use and occupancy because tenant suffered from a disability the GAL failed to file an answer]; see also CPLR 5511 ["[a]n aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party." [Emphasis added]).

Based on the foregoing, the clerk is directed to amend the caption to substitute "Newton Miller" and "Stibbys Auto Repairs" for "John Doe" and to likewise amend the judgment of possession and warrant of eviction to name "Newton Miller" and "Stibbys Auto Repairs" as respondents.

This constitutes the Decision and Order of the Court.

Dated: January 31, 2017

Richard J. Montelione, A.J.S.C.