Broadway Bretton, Inc. v Doe

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Broadway Bretton, Inc. v Doe 2023 NY Slip Op 31979(U) June 5, 2023 Supreme Court, New York County Docket Number: Index No. 312512-22 Judge: Karen May Bacdayan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK CIVIL COURT - L&T 06/05/2023 09:47 AMINDEX NYSCEF DOC. NO. 19 NO. LT-312512-22/NY RECEIVED NYSCEF: 06/05/2023 CIVIL COURT OF THE CITY OF EW YORK COU TY OF EW YORK: HO SI G PART F J DEX BROADWAY BR ETTON, INC. 0 . 3 125 12-22 DECISION/O RDER Petitioner, -against·'JA E DOE .. Respon dent. MAY BACDAYA . JH C Novick Edelstein Pomeranrz, PC, fo r the respondent Nor thern Manhattan fmp rov1m1ent Company. for the respondent Reci tatio n, as required by CPLR 2219 (a) of the papers considered in review of this motion by 1YSCEF Doc os: 4, 5, 14-18. PROCEDUR AL POSTURE AND BACKGROU ND This is a nonpayment proceeding commenced by Broadway Bretton, Inc. (" petitioner") in August 2022 against respondent, a rent stabilized tenant. 1 Respondent appeared by counsel on December 16, 2023 . (NYSCEF Doc o. 5, notice of appearance.) Pursuant to a briefing schedule ordered by the court on December 21, 2022, respondent timely filed an amended answer on January 13 , 2023. (N YSC EF Doc No. 13 , briefing order; NYSCEF Doc No. 14, amended answer.) Respondent's intended motion for leave to conduct discovery was due to be filed and served by February 5, 2023 . Six days prior to the deadline, on January 30, 2023 , respondent provided notice that an appeal had been filed pending the denjal of her Emergency Rental Arrears Program ( 'ERAP") application. (NYSCEF Doc o. 15 .) This had the effect of staying the proceeding until such time as the Offi ce of Temporary and Disability Assistance ("OTDA") rendered a decision on her appeal. (See Adm in Ord r of Chief Adm in Jud ge of Cts AO 34/22 5; L 2021, ch 56, part BB, subpart A , § 8 as amended by L 2021 , ch 417 part A, § 4.) motion was ever fil ed. The appeal was denied on Apri l 25 , 2023. Respondent's true identity has been cha nged, and her file sealed, to protect her identity. [* 1] 1 of 4 o FILED: NEW YORK CIVIL COURT - L&T 06/05/2023 09:47 AMINDEX NYSCEF DOC. NO. 19 NO. LT-312512-22/NY RECEIVED NYSCEF: 06/05/2023 On May 17, 2023, petitioner moved to restore the proceeding to the trial calendar and to vacate the ERAP stay. (NYSCEF Doc served via o. 16, notice of motion [sequence l ].) The motion was YSCEF and made returnable the next. day. Respondent did no oppose the vacatur of the stay, but sought to have the court order another briefing schedule regarding an objection to personal jurisdiction (regarding her defense that the affidavit of service was not timely filed pursuant to RPAPL 735 [2] [b]), and discovery (regarding her affirmative defenses and counterclaims re lated to fraudulent overcharge). YSCEF Doc o. 14, amended answer~, 19- 31.) Petitioner object d to respondent s request given that a briefing order had been issued five months prior to the court appearance and any motion had been due three and a half months before the appearance . The court took respondent's oral application on submission. DISCUSSION At the outset, in order to narrow the i sues before the court respondent 's request to move for dismis al of the petition based on this court 's lack of personal jurisdiction is declined . Respondent has waived her personal jurisdiction defenses. By not asserting an objection to personal jurisd iction in her initial answer dated September 9 2022, respondent waived her right to contest personal jurisdiction. YSCEF Doc I o. 4 prose answer.) Even if the court were to overlook the respondent's fai lure to raise a personal jurisdiction defense while unrepresented , respondent's attorney filed a notice of appearance five months ago on December 22, 2023, and did not rai ea personal objection defense until January 13 , 2023 when she filed an amended answer which petitioner accepted in order to expedite motion practice. Pursuant to CPLR 320 (a) , "[t]he defendant appears by erving an answer or a notice of appearance or by making a motion which has the effect of extend ing the time to answer .. . . "(Choo Jiunf; v f'ing An Ins. 179 AD3d 517, 517 [ I st Dept 2020] [" by appearing by notice of pro hac vice adm ission in this dispute, failing twice, to file timely pre-answer motions to dismiss, and defending on the merits (internal citations omitted)"]; ( lm. Home i\Jorrg. Senicing. Inc. ,. Ark/is, 150 ADJd 1180, 1181 (2d Dept 2.) Pursuant to CPLR 320 (b) "an appearance of the defendant is equival nt to personal service of the ummons upon him , unl ess an objection to jurisdiction under (CPLR 3211 (a) (8) is asserted by motion or in the answer as provided in (CPLR 3211)." (id.; see also McGowan v Hoffmeister, 15 AD3d 297 [l st Dept 2005] (" While permission to amend an answe r is to be freely given pursuant to CPLR 3025 (b), the waiver of a jurisdictional defense cannot be nullified by a subs quent amendment to a pleading adding the missing affirmative defense .") [* 2] 2 of 4 INDEX FILED: NEW YORK CIVIL COURT - L&T 06/05/2023 09:47 AM NYSCEF DOC. NO. 19 NO. LT-312512-22/NY RECEIVED NYSCEF: 06/05/2023 Respondent's justification for breaching the briefing order --- that an ERAP stay was in effect --- i weak. The purpose of the ERAP statute is to prevent as many eviction · as possibl as a result of the COVIO - 19 pandemic. It is not intended to excuse litigants from statutory requirements, or co urt orders . There is nothing in the ERAP statute explicating a toll or suspen ion of an attomcy ·s procedural obligations or obligation, under a court order. (See NY Stat § "'63 [" Generally , omissions in a tatute cannot be supplied by construction"].) Having amended the statute once, certainly the legislatw-e could have included that the filing of an ERAP application suspended pending litigation, statutory deadlines, and court orders if that was the intention. There is precedent for this which was invoked during the height of the pandemic. (See e.g. Executive Law§ 29-a.) However the legislature did not so specify; and canons of statutory construction require the court to conclude that this was not the legislature's intent. " [F]ailure of the Legi lature to include a substantive, significant prescription in a statute is a strong indication that its xclus.i on was intended. . . . (People v Finnegan, 85 Y2d 53, 58 [1995].) Moreover, as the Court of Appeal instructed in Miceli v State Farm A-lut. Auto . Ins. Co., 3 NY3d 725 (2004), "court-ordered time frames are not options, they are requirements, to be taken seriously by the partie . Too many ... hours of the courts, are taken up with deadlines that are simply ignored. " (Id. at 726-27 .) That said , initi al ly the court intended to bar further motion practice based on respondent 's disregard of the briefing order. Ho ever, the court finds that it would be undul y harsh in this instance, without notice, which respondent now has} for the court to hold respondent in default of its briefing order and prohibit the filing of a motion for leave to conduct discovery, something that en ues as of right in other forums. While motions may be decided on default for failure to fo llow a court's briefing order,3 there is no motion except for petitioner ' s motion before the court; and that motion is formally granted below. It would be an error for the court to, in effect, issue a decision on the merits of a motion --- i. e., whether or not re pondent is entitled to discov ry based on her interposed defenses --- that i not properly before it. Thus in the interests of justice and substantive fairness, the court orders a.final briefing schedule. 4 2 The court has amended its Part Ru les to reflect th is int erpretation of the sta t ute. Liberty Cmty. Assocs., LP v De Clemente, 139 AD3d 532 (1st Dept 2016); Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695 (2d Dept 2014). 4 See Part F Rules at VI, Motions - Filing, Br iefing, and Argument - avai lab le at htt ps ://www.nyco u rts .gov/COURTS/ nyc/ho using/Judge/pa rtru Ies/K Ba cdaya .pd f. 3 [* 3] 3 of 4 INDEX FILED: NEW YORK CIVIL COURT - L&T 06/05/2023 09:47 AM NYSCEF DOC. NO. 19 NO. LT-312512-22/NY RECEIVED NYSCEF: 06/05/2023 CONCLUSION Accordingly, it is ORDERED that petitioner' s motion to vacate the ERAP stay is ORA TED; and it is further ORDERED that respondent shall file her motion for leave to conduct discovery pursuant to CPLR 408 by June 26, 2023; and it is further ORDERED that petiti oner's opposition and any cross-motion shall be filed by July 15, 2023: and it is further ORD ERED that respondent s opposition to the cross-motion and reply to petitioner s opposition sha ll be filed by July 25 , 2020; and it is further ORDERED that petitioner' s rep ly shal l be filed by August 2, 2023. The parties shall appear in Part F, Room 523 , of the ew York City Civil Courthouse on August 4 2023 at 9: 15 a.m. in per on fo r oral argument. 5 This constitutes the decision and order of this court. Dated: June 5, 2023 ew York, NY The court has fashioned a robust yet manageable br iefing schedule in order allow respondent to file her motio n and, at the same time, ame liorate any perceived unfa irness to petitioner. If the parties seek to alter this schedu le, they must agree and alert the court by letter correspondence filed on NYSCEF concomitant wi t h an ema il to kbacdaya@nycourts .gov. If the parties cannot agree, they must adhere to the schedule. The court will not invo lve itsel f in the parties' negotiations in this regard. 5 [* 4] 4 of 4

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