Opinion
14446 Index No. 34749/19E Case No. 2021–00042
10-21-2021
231ST RIVERDALE LLC, Plaintiff–Appellant, v. 7 STAR HOME FURNITURE INC., et al., Defendants–Respondents.
Law Offices of Jason J. Rebhun P.C., New York (Jason J. Rebhun of counsel), for appellant.
Law Offices of Jason J. Rebhun P.C., New York (Jason J. Rebhun of counsel), for appellant.
Renwick, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered on or about August 20, 2020, which denied plaintiff's motion for a default judgment and sua sponte dismissed the action upon the ground that sufficient relief for breach of the commercial lease was granted in a prior Civil Court proceeding, unanimously modified, on the law, to reinstate the action, and grant plaintiff leave to renew its motion, and otherwise affirmed, without costs.
Plaintiff did not demonstrate its entitlement to a default judgment as to the individual defendant who had guaranteed the corporate defendant's performance under the lease, because plaintiff did not satisfy the additional notice requirements (see CPLR 3215[g][3][i] ), including submitting an affidavit attesting that the additional notice was mailed in an envelope marked personal and confidential, and did not reflect that it contained a communication from an attorney or concerned an alleged debt.
Furthermore, as to both defendants, plaintiff's motion for a default judgment lacked the requisite affidavit from a party or verified complaint to support such a motion (see CPLR 3215[f] ; Feffer v. Malpeso, 210 A.D.2d 60, 619 N.Y.S.2d 46 [1st Dept. 1994] ; Whittemore v. Yeo, 117 A.D.3d 544, 986 N.Y.S.2d 69 [1st Dept. 2014] ). Plaintiff's otherwise timely motion under CPLR 3215 should have been denied, but with leave to renew (see e.g. Giordano v. Berisha, 45 A.D.3d 416, 845 N.Y.S.2d 327 [1st Dept. 2007] ; Williams v. North Shore LIJ Health Sys., 119 A.D.3d 937, 989 N.Y.S.2d 887 [2d Dept. 2014] ).
To the extent that the order sua sponte dismissed the complaint, that portion of the order is not appealable as of right (see CPLR 5701[a][2] ; Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ). However, under the circumstances, we deem the notice of appeal from that portion of the order to be a motion for leave to appeal, and grant such leave (see All Craft Fabricators, Inc. v. ATC Assoc., Inc., 153 A.D.3d 1159, 60 N.Y.S.3d 660 [1st Dept. 2017] ; Ray v. Chen, 148 A.D.3d 568, 569, 50 N.Y.S.3d 62 [1st Dept. 2017] ). No extraordinary circumstances justified sua sponte dismissal of the complaint, and the ground identified by Supreme Court—res judicata—did not warrant dismissal in any event (see Ray v. Chen, supra ). Notably, the parties’ 10–year commercial lease provided for various landlord remedies in the event that defendant corporate tenant materially breached the lease and such lease was terminated (see generally Holy Props. v. Cole Prods., Inc., 87 N.Y.2d 130, 637 N.Y.S.2d 964, 661 N.E.2d 694 [1995] ; New 24 W. 40th St. LLC v. XE Capital Mgt., LLC, 104 A.D.3d 513, 961 N.Y.S.2d 139 [1st Dept. 2013] ). To the extent plaintiff obtained some relief in a Civil Court action as to accrued unpaid rent and a warrant of eviction, Civil Court lacked the authority to grant the full remedies plaintiff seeks under the commercial lease terms (see generally N.Y. City Civ. Ct. Act § 204 ; 172 Van Duzer Realty Corp. v. Globe Alumni Student Assistance Assn., Inc., 24 N.Y.3d 528, 534, 2 N.Y.S.3d 39, 25 N.E.3d 952 [2014] ).