BNH Partners LLC v Bubble Pop Laundromat Inc
Annotate this CaseDecided on May 4, 2023
Civil Court of the City of New York, New York County
BNH Partners LLC, Petitioner,
against
Bubble Pop Laundromat Inc, Respondent.
Index No. LT-309181-22/NY
Attorney for Petitioner: Borah, Goldstein, Altschuler, Nahins & Goidel, PC, 377 Broadway, 6th Floor, New York, NY 10013
Attorney for Respondent: Marc Aronson Esq, 107 Smith Street, Brooklyn, NY
Ilana J. Marcus, J.
Respondent, a laundromat, makes the instant post-eviction Order to Show Cause (OSC) for an order permitting respondent access to the subject premises at 354 East 116th Street, Ground Floor, New York, NY 10029 ("the subject premises") for the limited purpose of obtaining its possessions. Petitioner opposed and respondent submitted reply. After the initial submission of the OSC, this court permitted further submissions on the issue of service of a post-eviction Marshal's Notice of Levy and Sale ("marshal's notice"). The court heard oral argument on this motion on April 28, 2023. Upon due deliberation, the court grants respondent's OSC to the following extent:
By way of background, this court issued a decision and order dated November 14, 2022, that granted petitioner summary judgment, awarded it a final judgment of possession and issued a warrant of eviction with an earliest execution date of November 24, 2022 (see NYSCEF Doc. No. 62). On December 14, 2022, after an attorneys' fees hearing, where respondent did not appear, the court awarded petitioner attorneys' fees in the amount of $22,765.87 (see NYSCEF Doc. No. 50).
In the instant order to show cause, respondent, by its president, Hyong Joo Lee, asserts that after petitioner executed the warrant of eviction, petitioner retained possession of [*2]respondent's personal property inside the subject premises and refused respondent access to remove it (see Lee Aff). The property at issue includes twenty-eight washing machines, twenty-eight dryers, ten carts, one hot water tank and one hot water heater (see id.). Respondent argues the lease does not permit petitioner to retain this property after respondent vacated the premises (see id.). Respondent further accuses petitioner of using the property and operating the laundromat (see id.).
In opposition, petitioner argues that it is entitled to maintain possession of respondent's personal property because of the pending monetary judgment against respondent for attorneys' fees. Petitioner argues that it imposed a levy upon respondent's personal property to satisfy the judgment should respondent fail to pay it. Petitioner submits a copy of a marshal's report, which states "Assets to levy on, if no payment, will sell," as proof of the levy.
In its reply, respondent argues that petitioner failed to properly serve respondent with the marshal's levy pursuant to CPLR § 5232(a). Respondent further argues that petitioner failed to submit proof of service of the marshal's levy with its opposition.
In further response, petitioner submits an affidavit of service of the marshal's levy by Martin Beinstock, City Marshal in the City of New York, affirming that on January 10, 2023, at approximately 11:00 am, he served the marshal's notice at 354 East 116th Street, Ground Floor, New York, NY 10029, by handing the document to "Lilly," who the Marshal described as "on the premises" and who "accepted the Marshal's Notice on behalf of the Respondent" (NYSCEF Doc. No. 77). The notice was also posted outside of the premises (see id.).
In reply to petitioner's affidavit of service, respondent submits another affidavit by Hyong Joo Lee that points out respondent was evicted from the subject premises on January 4, 2023, and states respondent has not been on the premises since that date. As such, respondent argues it was impossible to serve respondent with the marshal's notice at the subject premises on January 10, 2023 (see NYSCEF Doc. No. 78). Notably, petitioner's initial affirmation in opposition to the OSC asserted that it evicted respondent from the premises on January 4, 2023 (see NYSCEF Doc. No. 69, ¶2).
After a warrant of eviction is issued in a summary proceeding, the landlord is entitled to possession of the real property therein and has no right to use or maintain the tenant's personal property remaining in the subject premises (see Reich v Cochran, 114 AD 141 [1st Dept 1906]; see also Robert F. Dolan, Rasch's New York Landlord and Tenant, Including Summary Proceedings §§ 29:7, 46:11 [5th ed 2022]). After a warrant is executed and personal property remains in the space, the landlord has the option to either direct the marshal to effect an eviction or seek a delivery of "legal possession" (see The City of New York, Department of Investigations, New York City Marshals Handbook of Regulations, Chap IV, § 6-4, available at https://www.nyc.gov/assets/doi/Marshals/MarshalsHandbook4_24_13_Dir_Guidelines.pdf [accessed May 1, 2023]). In the case of an eviction, both the tenant and the tenant's personal property are removed (id.). In the case of a "legal possession," only the tenant is removed and the remaining property "remains under the care and control of the landlord as bailee for the tenant" (id.).
Where the landlord elects to have the tenant's property removed from the premises and the property is capable of being moved, the marshal must hire a bonded moving company licensed by the New York State Department of Transportation to move the property to a bonded warehouse at the landlord's expense (id.). In that instance, the landlord is entitled to recover reasonable expenses incurred from the tenant (see Ide v Finn, 196 AD 304 [1st Dept 1921]). A [*3]marshal is not permitted to remove any property attached to the realty that would cause damage to the realty if removed (see New York City Marshals Handbook of Regulations, Chap IV, § 6-6[d]).
Where the marshal effects a "legal possession" and the tenant's personal property remains in the premises, the landlord or its representative must endorse the back of the warrant as follows:
Possession of the tenant's premises with the contents intact is hereby acknowledged. The landlord accepts responsibility for all the property on the premises, releases the marshal from any liability, and agrees to save the marshal harmless from any action resulting from the enforcement of this warrant.Signature of landlord, or his or her attorney or agent(New York City Marshals Handbook of Regulations, Chap IV, § 6-4). The landlord may then remove and store the subject property in a safe location and recover the associated reasonable costs from the tenant (see Ide v Finn, 196 AD 304).
Pursuant to CPLR § 5232, a landlord may seek a levy upon a tenant's personal property as collateral for payment when it is awarded a money judgment that remains unpaid. Only a marshal is permitted to effect a levy (see CPLR §§ 5230, 5232, and 8011[b]; CCA § 1504). To effect a levy on personal property, the marshal must serve a copy of the execution upon the respondent in the same manner as a summons (see CPLR § 5232). The respondent must then pay the judgment owed to the marshal or sheriff, or risk its property being sold (see id.).
If the respondent pays the money owed, the respondent satisfies the execution and may recover its property (see id.). If respondent does not voluntarily pay the judgment, the landlord shall move the court within 90 days of service of the execution for an order requiring respondent pay the money or relinquish its personal property to the marshal or sheriff to sell (see CPLR §§ 5225, 5232, and 5233). If the property is ultimately sold, the proceeds of the sale shall be distributed first to the marshal or sheriff for any fees, expenses or taxes incurred to enforce the judgment; then to the landlord to satisfy its money judgment; and any excess shall be returned to the respondent (see CPLR § 5234).
Here, respondent was evicted on January 4, 2023 (see NYSCEF Doc. No. 69). Given the nature of respondent's property, it could not be removed by the marshal, as doing so without professional assistance would cause damage to the realty (see New York City Marshals Handbook of Regulations, Chap IV, § 6-6[d]). Therefore, petitioner remains in possession of respondent's personal property.
Again, to effect the levy, the marshal must serve a copy of the execution upon respondent in the same manner as a summons (see CPLR § 5232). Service of a summons upon a corporation requires personal service as directed in CPLR § 311. CPLR § 311 dictates that petitioner serve respondent by delivering the marshal's notice "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service," or to the secretary of state as the corporation's agent (CPLR § 311[a][1]).
Here, the affidavit of service of the marshal's levy fails to establish that it was properly served on respondent. The marshal served "Lilly," without stating whether Lilly is someone authorized to accept service pursuant to CPLR § 311. Moreover, the marshal alleges that he served respondent at the subject premises 6 days after petitioner evicted respondent from the [*4]subject premises— a claim that respondent argues was impossible. Without proper service, petitioner cannot establish that its current levy is enforceable (CPLR § 5232).
Petitioner does not have the right to use respondent's personal property or retain possession of it without a levy (see CPLR § 5201 et. seq.; Reich v Cochran, 114 AD 141 [1st Dept 1906]). As such, petitioner shall permit respondent limited access into the subject premises to retrieve its personal property, or alternatively, remove respondent's personal property itself and store it in a safe location for respondent to retrieve.
Accordingly, it is hereby
ORDERED, that respondent's Order to Show Cause is granted to the extent that petitioner shall permit respondent limited access into the subject premises to retrieve its personal property, or alternatively, petitioner shall remove respondent's personal property from the subject premises and store it in a safe location for respondent to retrieve.
This constitutes the decision and order of the court.
DATED: May 4, 2023
ENTER:
New York, NY
____________________
ILANA J. MARCUS
Judge of the Civil Court
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