Opinion
HP 130/88.
Decided November 10, 2004.
David Rosenbaum, Esq., Borah, Goldstein, Altschuler, Schwartz Nahins, P.C., New York, NY, Respondent's Attorney.
David Gordon, Esq., Room 3Z-6, DHPD-HLB, New York, NY, Petitioner's Attorney.
The Respondent moves to vacate default judgments and orders of contempt dated November 29, 1989 and March 1, 1990 (Harriet P. George, J.), pursuant to CPLR 317 and 5015(a)(1) and for an order directing the reconstruction of the court file. Upon the motion, affirmation in opposition, together with exhibits, including Respondent's Exhibit "2" (consent order dated September 9, 1988) and case law submitted by Respondent's attorney (Exhibit "1") and the reply affirmation, and upon oral argument of the attorneys for the parties on October 15 and November 1, 2004, the Court decides as follows.
The Petitioner (hereinafter referred to as "HPD") brought five separate HP proceedings against the Respondent, Steven Green, the registered managing agent of the subject premises (HP 130/88, 754/86, 744/86 and 755/86). These cases were resolved by a consent order of Judge George dated September 9, 1988 (see Exhibit "2" and Exhibit "A" to Petitioner's Order to Show Cause dated December 14, 1989).
On July 17, 1989, HPD moved by Order to Show Cause to punish Respondent for contempt for failure to comply with the consent order. A hearing was conducted on August 3 and August 9, 1989. The matter was thereafter adjourned to October 12, 1989. On October 12, 1989, Respondent defaulted and the court conducted an inquest. The Respondent was found to be in contempt of the consent order. On November 29, 1989, Judge George issued an order awarding HPD a judgment for fines representing civil and criminal contempt penalties and an order of commitment (see Exhibit "A" to Petitioner's affirmation in opposition).
Respondent moved by Order to Show Cause on December 14, 1989 to vacate the order and judgment of November 29. The application was denied by Judge George. A further motion to vacate the order was denied on January 5, 1990 for failure of the Respondent to proceed (see Exhibit "E" to affirmation in opposition, the denial also being noted on page 1 of the Order to Show Cause dated December 14, 1989).
On March 1, 1990, Judge George issued another order, upon default in appearance of Respondent, imposing further penalties against Respondent and ordering his commitment (see Exhibit "H" to Respondent's Order to Show Cause).
On June 18, 1990, Judge George denied Respondent's motion to vacate the order and judgment of March 1, 1990, finding no justifiable excuse for the default or a meritorious defense (see Exhibit "H" to affirmation in opposition).
Respondent moved the Appellate Term to appeal the June 18th denial of his motion to vacate the order of Judge George dated March 1, 1990. By order of the Appellate Term dated April 24, 1991, the appeal was dismissed for failure to prosecute.
On August 27, 2003, Respondent brought another Order to Show Cause to vacate the order and judgment of November 29, 1989. Said application was denied by Judge Deighton Waithe for failure to demonstrate an excusable default or meritorious defense "particularly after more than a decade has passed since the contested Judgment was entered" (see Exhibit "C" to affirmation in opposition).
Respondent now moves again to vacate the orders and judgments of November 29, 1989 and March 1, 1990 and requests an order to reconstruct the file.
It is improper and inconsistent with the applicable rules to make repetitive motions for the same relief already denied by the court ( see, Camacho v. Mezarina, N.Y.L.J., January 10, 1990, at 25, col 6 (Civil Court, Queens County]). Respondent has already brought orders to show cause for the relief requested herein, which have been denied, the court having found that there was no excusable default or meritorious defense. Moreover, the Respondent appealed the denial of his application to vacate Judge George's order and the Appellate Term dismissed the appeal. This Court has no power to grant the same relief requested of the Appellate Term after submission of an appeal from the final judgment of this Court (CPLR Rule 4405; see, Kogut v. State of New York, 48 Misc 2d 93, affd. 24 AD2d 928, affd. 18 NY2d 769).
Even if, arguendo, the instant motion were the first one seeking vacatur of the order and judgment of contempt, the Respondent has failed to demonstrate an excuse for his default or any meritorious defense, pursuant to CPLR 5015(a)(1). The default may not be vacated pursuant to CPLR 317 because Respondent appeared in the proceeding, although he subsequently defaulted, there was no issue of traverse and he had actual knowledge of the orders issued (in fact, the file shows that Respondent was incarcerated pursuant to the order) ( see, Rodriguez v. G.W. Bridge Realty, Inc., 155 AD2d 271 [1st Dept 1989]). CPLR 317 precludes the vacatur of a default judgment more than five years after entry of the judgment. The judgments herein were entered almost fifteen years ago. The Respondent has not articulated any cognizable basis for relief at this juncture.
In the reply affirmation Respondent's attorney raises the issue of subject matter jurisdiction. The argument of lack of subject matter jurisdiction may be raised at any time during the proceedings, even on appeal ( Matter of Newham v. Chile Exploration Co., 232 NY 37). The Respondent argues that he is not personally liable for violating the consent order he entered into in 1988 because it was conditioned upon ownership of the premises being transferred to him personally. For this reason, Respondent argues, the Court lacks subject matter jurisdiction. This argument is without merit. Any infirmity in this particular case does not divest this Court of its jurisdiction over the subject matter of this petition.
Black's Law Dictionary (5th ed 1979) defines subject matter jurisdiction as the court's competence to hear and determine cases of the general class to which proceedings in question belong; the power to deal with the general subject involved in the action * * * *. Subject matter jurisdiction deals with the court's competence to hear a particular category of cases.
The Court of Appeals put it succinctly when it stated, "In other words, 'subject matter' does not mean 'this case,' but ' this kind of case'" ( Matter of Rougeron, 17 NY2d 264, 271 [citations omitted]).
The Housing Part of the Civil Court has jurisdiction over summary HP proceedings pursuant to NY Constitution, Article VI, § 15(b) and NYCCCA § 110. The particular facts of this case have nothing to do with subject matter jurisdiction ( see, Matter of Newham v. Chile Exploration Co., supra; Matter of Rougeron, 17 NY2d 264, supra; Thrasher v. U.S. Liability Ins. Co., 19 NY2d 159; Birchwood Towers No. 2 Assoc. V. Schwartz, 98 AD2d 699 [2d Dept 1983]; City of NY v. Metro Club, N.Y.L.J., July 10, 1989, at 33, col 3 (Civil Court, Queens County]).
Accordingly, the motion is denied in its entirety.
The foregoing constitutes the Decision and Order of the Court.