Opinion
Index No. SC-909-20/BX
06-07-2023
Andrea Zarate, Claimant, v. A&E Tiebout Realty LLC, Defendant.
Unpublished Opinion
JEFFREY S. ZELLAN, J.
Defendant presents a proposed order to show cause seeking an order staying enforcement of the judgment in this action entered on or about September 9, 2022 (and published at 2022 NY Slip Op 51401(U)) pending appeal of that judgment, or, in the alterative, permitting defendant to post a bond pending appeal, or declaring a mistrial in this action and ordering a new trial. Defendant also seeks a temporary stay of enforcement of the judgment pending the determination of defendant's motion. For the reasons set forth below, defendant's application for a temporary stay is denied, and the Court declines to sign the proposed order to show cause without prejudice to defendant posting an undertaking in the full amount of the outstanding judgment pursuant to CPLR 5519, for which defendant does not need permission from the Court.
At the outset, the Court notes that defendant appears to have sought a stay from the Appellate Term, First Department pending appeal pursuant to CPLR 5519, which was denied in a decision and order dated May 31, 2023 and published at 2023 NY Slip Op 67716(U). In that same ex parte application, defendant also sought leave to post an appellate bond for which, again, defendant does not need permission pursuant to CPLR 5519. To the extent the Appellate Term's decision does not already preclude the instant application, the Court would deny defendant's application independent of the Appellate Term's decision.
The consideration of a proposed order to show cause is within the Court's discretion, and "[i]n exercising its discretion, and before signing an order to show cause, the court must look not only at questions of alternate means of service, but must also look at the relief requested and the authority of the person seeking such relief to do so, and then ascertain if under the set of facts most favorable to the movant the relief could be granted." Mallory v. Mallory, 113 Misc.2d 912, 913 (Sup. Ct., Nassau Co. 1982). See also, Matter of Citigroup Global Markets, Inc. v. Fiorilla, 178 A.D.3d 567,570 (1st Dept. 2019) (citing Mallory and noting that "the most that can be said...is that the signing of the order to show cause signified the court's agreement that, if everything in the papers were accurate, it would be possible to grant [movant] the relief he sought"). If the Court would not be able to grant the relief sought, even assuming the accuracy of everything in the moving papers, the Court must refuse to sign the order, leaving the party to normal motion practice. Mallory, supra. See also, Agapito v. Crouch, Index No. SC-1078-20/BX, slip op., at *1 (Civ. Ct., Bronx Co. May 11, 2022) (declining order to show cause because relief sought was unavailable). Here, defendant's application is deficient for a number of reasons, which the Court addresses in turn.
Defendant's Appeal is Untimely and Thus Unlikely to Succeed, Mooting the Application
As defendant notes, "[t]he standard for obtaining a stay consists of three requirements: (1) the likelihood of success on the merits, (2) irreparable injury in the absence of injunctive relief, and (3) the balancing of equities between the parties." (Aff. in Supp., ¶ 11). The First Department has long been unequivocal that "litigants should be on notice that stays pending appeal will not be granted or, where the stay is automatic, continued, in cases where the appeal is meritless or taken primarily for the purpose of delay." Herbert v. New York, 126 A.D.2d 404, 407 (1st Dept. 1987). See also, M.C. v. Diocese of Rockville Ctr., Index No. 900041/2019, 2020 NY Misc. LEXIS 12619, *8 (Sup. Ct., Nassau Co. Jul 30, 2020) (citing Herbert and others in noting that "[t]he primary factor considered under various statutes permitting discretionary stays is whether the party seeking the stay has demonstrated that the appeal has merit"). As defendant's appeal in this action is untimely, it is accordingly unlikely to succeed, and is not a basis for a stay.
Though defendant's untimely notice of appeal is dispositive, defendant's application would fare no better if the appeal was timely, as nothing in defendant's papers establishes a likelihood of success on the merits for the reasons stated in the decision and order that defendant seeks to appeal, particularly on an appeal from Small Claims Court under a "substantial justice" standard. The First Department has recognized that a claim exists where "the alleged noise emanating from a neighboring apartment was so excessive that plaintiff [tenant] was deprived of the essential functions that a residence is supposed to provide" and defendant landlord failed to take reasonable steps to abate the neighbor's interference plaintiff's quiet use and enjoyment of the apartment. Armstrong v. Archives L.L.C., 46 A.D.3d 465, 465 (1st Dept. 2007) (internal quotations and citations omitted); see also, Brown v. Blennerhasset Corp., 113 A.D.3d 454, 455 (1st Dept. 2014) (affirming a cause of action by a plaintiff-tenant that "adequately alleges that [defendant-landlord] deprived plaintiff of her right to quietly enjoy her apartment by failing to take effective steps to abate allegedly excessive noise emanating from the neighboring apartment"). At trial in the instant action, defendant offered no evidence of any kind of defendant engaging in any measures to abate the alleged interference with plaintiff's quiet use and enjoyment except for oral testimony of a witness who admittedly had no personal knowledge of any of the events in question and could not produce copies of a single document demonstrating any such alleged measures. Rather, defendant relied on the assertion, which plaintiff repeats in its papers in support of this motion, that because plaintiff and plaintiff's neighbors lived in rent stabilized apartments evictions were not feasible, and therefore defendant had no duty to do anything as such efforts would be futile. Notwithstanding various abatement measures short of eviction that may have been available, defendant's argument that claimant's right to the quiet use and enjoyment of her home is diminished because she and her fellow building tenants are protected by the State's rent stabilization laws (and, a priori, that market rate tenants' rights are greater than their stabilized counterparts) is bewildering and facially contrary to the public policy of this State. (See, Aff. in Supp., ¶ 13).
Although notice of entry does not appear to have been served in this action until April 11, 2023, the time to appeal a small claims judgment runs from the earlier of: "1) service by the court of a copy of the judgment appealed from upon the appellant; 2) service by a party of a copy of the judgment appealed from upon the appellant; or 3) service by the appellant of a copy of the judgment appealed from upon a party." CCA § 1703(b). The judgment in this action was entered on September 9, 2022. The Court's electronic case tracking system indicates that notice of that judgment was generated by the clerk's office on September 9, 2022, which is presumed to have been mailed on that same day. Defendant did not notice the appeal at issue until over 200 days later, on April 11, 2023. Further, the Court's electronic case tracking system also indicates that a representative of defendant contacted the clerk's office seeking copies of trial exhibits on or about September 23, 2022, which is corroborated by the instant moving papers and constitutes a clear indication that defendant had notice of the Court's judgment at least by September 23, 2022. (Aff. in Supp., ¶ 17). Served by mail (as the notice of judgment appears to have been by the clerk's office), defendant had until Friday, October 14, 2022 (or October 28, 2022 if the Court were to calculate the time to appeal from September 23, 2023). See, CCA § 1703(b). Defendant's notice of appeal was thus nearly six months late, which is not waivable. See, CPLR 5514(c).
Absent a viable appeal - which defendant's entire application relies upon - the instant application is moot in its entirety. See, Herbert, supra. Accordingly, there is no basis upon which defendant's motion could be granted, and the proposed order to show cause should be declined on that basis. See, Agapito, supra.
Defendant's Application for a Mistrial is Unfounded as the Record Can be Settled Otherwise
Defendant argues in the alternative that it is entitled to a mistrial because the Court file that defendant requested from the clerk for purposes of perfecting the appeal lacks copies of certain trial exhibits. (Aff. in Supp., ¶ 17). Defendant is wrong. A mistrial from the trial court is neither a necessary nor appropriate remedy at this juncture.
The Court has been advised by the clerk's office that defendant has sought copies of trial exhibits in this action and that the court file is, apparently, incomplete. To be clear, the Court returned all exhibits in its possession to the clerk's office when it issued the judgment at issue here.
An appeal may proceed upon "any relevant exhibits, or copies of them," and it is the responsibility of the appellant to perfect the record for appeal. CPLR 5526 (emphasis added). There is nothing preventing defendant from preparing a record (and the Court settling the record) with copies of the trial exhibits (which are identifiable from the stenographic record) obtained elsewhere. Indeed, CCA § 1704(a), which governs the assembly and settlement of the record, expressly includes, inter alia, supplementing copies from the clerk's office with the appellant's own copies of any missing materials and/or pursuing a stipulated statement in lieu of a record with exhibits on appeal. Defendant has not offered any indication that it has lost its own copies of the trial exhibits, nor is there any indication that plaintiff no longer has such documents. Defendant must first seek to settle the record following the established procedural scheme set forth for small claims appeals and any concerns about assembling trial exhibits must be first addressed through the settlement process. After the defendant assembles the record as best as it can, and after the settlement process is completed, appellant can note any alleged omissions from the record in its papers to the Appellate Term and the Appellate Term will determine whether the record is sufficient to rule on the appeal.
Notably, the decision and order at issue for appeal was not based on documentary evidence, but rather the testimony of claimant and the lack of testimonial or documentary evidence from defendant but for defendant's sole exhibit - a letter from DHCR - which was found to be largely irrelevant.
Defendant May Stay Enforcement by Posting an Undertaking Without Court Order
Defendant also seeks the alternative remedy of being granted leave to post a bond to halt enforcement of the judgment. (Aff. in Supp., ¶ 2). Timeliness and other issues concerning defendant's anticipated appeal aside, defendant may obtain a stay of enforcement without a court order by giving an undertaking for the full amount of the judgment. See, CPLR 5519(a)(2). There is accordingly no need for the Court's intervention. To the extent that the instant application seeks to post a lesser undertaking pursuant to CPLR 5519(c) or 6313(c), the most favorable reading of defendant's papers does not support permitting a lesser undertaking for the reasons already discussed and is denied.
Accordingly, the Court declines to sign the proposed order to show cause.