Opinion
11060149
04-04-2019
EAST RAMAPO CENTRAL SCHOOL DISTRICT, Petitioner, v. MOSDOS CHOFETZ CHAIM, INC., Respondent.
Christopher H. Feldman, Esq., Harris Beach, PLLC, 445 Hamilton Street, Suite 1206, White Plains, NY 10601, Attorney for Petitioner Phillip J. Murphy, Esq., 11 Esquire Road, Suite, New City, NY 10956, Attorney for Respondent
Christopher H. Feldman, Esq., Harris Beach, PLLC, 445 Hamilton Street, Suite 1206, White Plains, NY 10601, Attorney for Petitioner
Phillip J. Murphy, Esq., 11 Esquire Road, Suite, New City, NY 10956, Attorney for Respondent
Richard Clarino, J.
Upon the Order to Show Cause, dated November 13, 2018, based on the affirmation of Phillip J. Murphy, Esq., attorney for YESHIVA CHOFETZ CHAIM, INC. (hereinafter referred to as "YESHIVA"), the Notice of Cross-Motion, dated November 29, 2018, submitted by Douglas E. Gerhardt, Esq. and Christopher H. Feldman, Esq., of Harris Beach, PLLC, attorney for petitioner, EAST RAMAPO CENTRAL SCHOOL DISTRICT (hereinafter referred to as "EAST RAMAPO"), the Notice of Cross Motion Reply to Answering Papers and Opposition to Cross Motion, dated December 6, 2018, submitted by Phillip J. Murphy, Esq., the Reply Affirmation in Support of Cross Motion, dated December 12, 2018, submitted by Christopher H. Feldman, Esq., the Decision and Order of the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts, dated October 5, 2018, the agreed-upon timetable of events dated January 18, 2019, and upon all the papers and proceedings previously filed and held herein, YESHIVA's and petitioner's applications are decided as follows:
ABBREVIATED BACKGROUND OF PROCEEDINGS
On May 19, 2011, almost eight years ago, petitioner, a Rockland County school district, commenced this summary proceeding to remove respondent, MOSDOS CHOFETZ CHAIM, INC. (hereinafter referred to as "MOSDOS"), from premises it owns and known as Old Colton Kitchen Building No. 2, a/k/a Central Kitchen Building No. 1, Merrill L. Colton Elementary School, located at 40A Grandview Avenue, a/k/a 40 Grandview Avenue, Town of Ramapo. A final judgment awarding petitioner, inter. alia., possession of the premises was entered on December 8, 2011 and affirmed by the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts on June 15, 2016 (See, East Ramapo Central School District v. Mosdos Chofetz Chaim, Inc., 52 Misc 3d 49 ).
After the Appellate Term affirmed this court's final judgment, numerous and protracted legal proceedings were commenced in this court, bankruptcy court and supreme court by MOSDOS and YESHIVA. YESHIVA is a non-party which, it claims, became an occupant of the premises. Most of these proceedings have no relevance to the issues raised in the application now before the court and therefore will not be addressed herein.
One post-judgment/post-appeal application however, was brought by YESHIVA, by way of an order to show cause dated June 13, 2017, two days before the fourth scheduled sheriff's eviction. YESHIVA's order to show cause, submitted by Phillip J. Murphy, Esq. (the attorney who also represents MOSDOS) was based solely on an affirmation of Sima Weintraub, the executive director of YESHIVA. Weintraub alleged that YESHIVA took possession of the premises on an undisclosed date after MOSDOS "ceased operating at that address" and was paying MOSDOS to use the premises. Weintraub claimed that YESHIVA had no knowledge of this proceeding against MOSDOS until the sheriff sought to enforce the warrant of eviction in June, 2017.
The parties stipulated in their timetable that there have been eight unsuccessful attempts by the Rockland County Sheriff to execute the warrant and amended warrant of eviction.
Attorney Murphy, on behalf of YESHIVA, presented the aforesaid order to show cause to Hon. Craig E. Johns, a town justice for the Town of Clarkstown, a town that adjoins the Town of Ramapo. Judge Johns was not a justice of the Town of Ramapo Justice Court, the only court having subject matter jurisdiction of this case. However, after he signed the order to show cause, Judge Johns caused it to be filed with this court and all subsequent submissions and proceedings relating to the order to show cause were presented to and heard by Town of Ramapo Justice David J. Stein. Judge Stein thereafter rendered a decision and order dated July 13, 2017 denying YESHIVA's application. At the same time, Judge Stein signed an amended warrant of eviction in favor of petitioner and against both MOSDOS and YESHIVA. YESHIVA appealed to the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts.
On October 8, 2018, the Appellate Term, on its own motion, issued a decision and order dismissing the appeal on the ground that "...the order to show cause giving rise to the order appealed from was signed by a justice of a different court and not by a justice of the Justice Court of the Town of Ramapo, and was thus a nullity " (See, East Ramapo Central School District v. Mosdos Chofetz Chaim, Inc, Yeshiva Chofetz Chaim, Inc., Appellate Term Docket No. 2017-1626 RO C [emphasis added] ).
The Appellate Term's decision and order raised questions whether Judge Stein's decision and order and amended warrant of eviction are enforceable by this court and resulted in the proceedings now before the court.
On November 13, 2018, YESHIVA submitted the instant application to vacate the amended warrant based, inter. alia., on the Appellate Term's determination that the amended warrant of eviction was a nullity. YESHIVA also contends that the amended warrant is unenforceable and must be vacated because the court did not enter a judgment against YESHIVA. Petitioner opposes the application and cross-moves against YESHIVA and MOSDOS, for an order: a) affirming this court's July 13, 2017 decision and order and amended warrant of eviction, b) awarding licensing fees against MOSDOS in "an amount not less than $ 28,000", and c) awarding petitioner sanctions against respondent and its attorney, Phillip J. Murphy, Esq., for alleged frivolous conduct.
INTERVENTION OF NON-PARTY, YESHIVA CHOFETZ CHAIM, INC.
YESHIVA was not named as a respondent in this proceeding since it was not in possession of the premises when the proceeding was commenced in May, 2011. The final judgment and warrant of eviction was obtained only against MOSDOS. Although not a party, YESHIVA applied to this court on June 13, 2017 for relief from the judgment and warrant dated December 8, 2011, made at least two applications to the Appellate Term and thereafter brought this application to vacate the amended warrant signed July 13, 2017.
The documents and applications submitted by YESHIVA's attorney did not include and were not labeled or presented as a "motion to intervene". Nevertheless, the court deems YESHIVA's submitted documents seeking relief from the final judgment and amended warrant of eviction as an application or request to intervene in this proceeding.
CPLR Section 1012 (a) provides as follows:
Intervention as of right.
Upon timely motion, any person shall be permitted to intervene in any action ...
3. when ... the person is or may be bound by the judgment ...
CPLR Section 1013 provides as follows:
Intervention by permission
Upon timely motion, any person may be permitted to intervene in any action when ... the person's claim or defense, and the main action have a common question of law or fact ...
Intervention should be liberally allowed, particularly with the presence of common questions of law and fact, and is permitted as of right when interest in property may be adversely affected by a judgment (See, Teleprompter Manhattan CATV Corp. v. State Board of Equalization and Assessment, 34 AD2d 1033, Wells Fargo Bank Minn., N.A., v. Ray, 23 Misc 2d 454).
Clearly, YESHIVA's claim, first asserted on June 13, 2017, that it has the right to possess the premises, has questions of fact and law common to petitioner's and MOSDOS's claim for possession. Accordingly, the court determines that YESHIVA has, de facto, moved to intervene and is, in fact, an intervener and has become a party to this proceeding. Accordingly the caption of the proceeding is hereby amended to read as follows:
JUSTICE COURT: TOWN OF RAMAPO
COUNTY OF ROCKLAND: STATE OF NEW YORK
x
EAST RAMAPO CENTRAL SCHOOL DISTRICT,
Petitioner, Docket # 11060149
against
MOSDOS CHOFETZ CHAIM, INC. and
YESHIVA CHOFETZ CHAIM, INC.,
Respondents.
x
YESHIVA'S APPLICATION TO VACATE AMENDED WARRANT
Based on the clear language of the Appellate Term's decision and order dated October 5, 2018, and notwithstanding that all parties litigated the issues before a Town Justice of the Town of Ramapo having jurisdiction of the case, this court is bound to follow the Appellate Term's determination that the amended warrant and, presumably, the underlying decision and order of Judge Stein, were nullities. Therefore, the amended warrant and the underlying decision and order of Judge Stein, dated July 13, 2017 are vacated.
In any event, the amended warrant is ineffective against YESHIVA and must be vacated because the court did not enter a judgment for possession against YESHIVA, a prerequisite to the issuance of a warrant of eviction (See, RPAPL § 749[1] ).
Based on the foregoing, YESHIVA's application to vacate the amended warrant dated July 13, 2017 is granted.
PETITIONER'S CROSS-MOTION TO "AFFIRM" THE AMENDED WARRANT
For the reasons set forth above, petitioner's application to "affirm" the amended warrant is denied.
PETITIONER'S APPLICATION FOR MONEY JUDGMENT AGAINST MOSDOS
Petitioner seeks a money judgment against MOSDOS based on Judge Stein's decision and order dated July 13, 2017 which, as previously mentioned, has been ruled a nullity by the Appellate Term and vacated herein. Petitioner has made no showing in its cross-motion that MOSDOS was or is in possession of the premises during the period of time it claims that fees and monetary damages were owed to it. Moreover, YESHIVA never agreed to pay license fees.
Accordingly, petitioner's motion for a money judgment is denied without prejudice for petitioner to submit a claim against MOSDOS in bankruptcy court or to commence a plenary action for a money award against either or both parties.
PETITIONER'S CROSS-MOTION FOR SANCTIONS BASED ON FRIVOLOUS CONDUCT
Petitioner raises compelling arguments to demonstrate that respondent's attorney engaged in frivolous conduct over the past seven years, specifically relating to the attorney's apparently meritless, but nonetheless successful, attempts to forestall the sheriff's removal of respondents on eight occasions. However, this court has no authority to impose sanctions (See, Rules of the Chief Administrator § 130-1.1[a] ).
Based on the foregoing, petitioner's application for sanctions is denied.
ISSUANCE OF AN AMENDED JUDGMENT AGAINST RESPONDENTS, MOSDOS AND YESHIVA
Upon a review of the papers and proceedings filed with the court, the court finds that the judgment for possession in favor of petitioner should be binding as against both respondents, MOSDOS and YESHIVA for the following reasons:
Petitioner did not accept YESHIVA as a licensee or tenant nor has there been a genuine showing that petitioner was aware of YESHIVA's presence in the premises when the proceeding was commenced or at any time prior to June 13, 2017.
MOSDOS did not assign its license rights to YESHIVA nor did MOSDOS have the right to assign license rights to YESHIVA.
YESHIVA has not submitted a lease, sub-lease, assignment, contract, agreement or any other document to support its conclusory claim that it has an independent possessory interest in the premises.
Although Weintraub's affirmation alleges that YESHIVA had been paying rent to MOSDOS, no rental receipts, checks, ledgers, bank records or any other documents were submitted to support Weintraub's bare allegation.
YESHIVA's attorney, who also represented MOSDOS throughout this proceeding, was in a position to submit the aforesaid documents if, in fact, they existed.
Based on the foregoing, YESHIVA has not presented any credible facts or circumstances to show that it has a good-faith belief to lawfully possess the premises. Without proof to show that a landlord had knowledge of an occupant's possession prior to the commencement of the proceeding or a showing that an occupant has an independent possessory right in the premises, an occupant is not a necessary party and may be lawfully evicted (See, March Toys, Inc. v. Caiola, 92 AD2d 473, 523 W. 138 St. Realty Co. v. Castillo , 1990 NY Misc. LEXIS 808, Supreme Court of New York, Appellate Term, First Department).
The facts of this case are indistinguishable to those in March Toys v. Caiola, supra . In March Toys, landlord commenced a summary proceeding against a sub-tenant which took possession of the premises with landlord's consent. Prior to or after the proceeding was commenced, March Toys took possession of the premises without landlord's consent. Thereafter, a judgment for possession was awarded to landlord against the sub-tenant, March Toys then sought to enjoin the enforcement of the warrant of eviction against it claiming it wasn't a party to the proceeding. The Appellate Division held that without evidence of an assignment of the lease by landlord to March Toys, March Toys, regardless of whether it was an interloper, trespasser or subsidiary of the sub-tenant, "was without power to enjoin [landlord] from enforcing landlord's rights (See, March Toys v. Caiola, supra. at page 474).
Based on the foregoing, YESHIVA has no more rights to possession than does MOSDOS whose right to possess the premises were terminated by a judgment of this court and upheld on appeal.
In addition, YESHIVA and MOSDOS and were and continue to be closely related in both identity, purpose and interest that they should be treated as one and the same. The court's determination is based on the following facts:
Sima Weintraub, the executive director of YESHIVA was a founding member of MOSDOS along with Rabbi Mayer Zaks and Rabbi Aryeh Saks (See, Exhibit L of petitioner's cross-motion).
Sima Weintraub, Rabbi Mayer Saks and Rabbi Aryeh Saks are all trustees of MOSDOS (See, Exhibit L of petitioner's cross-motion).
Rabbi Mayer Zaks and Rabbi Aryeh Saks, trustees of MOSDOS were founding members of YESHIVA and are trustees of YESHIVA (See, Exhibit L of petitioner's cross-motion).
Both YESHIVA and MOSDOS list the same address in their certificate of incorporation: 82 Highview Road, Suffern, NY 10901 (See, Exhibit L of petitioner's cross-motion).
YESHIVA's organizational purpose is to ".. conduct ... a Yeshiva ... for ...instruction ... as taught by ... Rabbi Mayer Zaks and Rabbi Ayea Saks, in such courses as they may determine " (See, Certificate of Incorporation YESHIVA, Exhibit L of petitioner's cross-motion [emphasis added] ).
MOSDOS and YESHIVA are represented by the same attorney, Phillip J. Murphy.
Sima Weintraub's affirmation submitted June 13, 2017 alleged that when the sheriff served the 72-hour eviction notice scheduling the physical eviction for June 15, 2017, it "was the first inkling [YESHIVA] had that there was any trouble with the defendant [sic]". Considering the close relationship between MOSDOS and YESHIVA, the court finds that this allegation defies belief, logic and common sense. This is particularly true since the affirmation was signed after the fourth attempted eviction and after six years of extensive litigation.
The facts show that YESHIVA was or should have been aware of these proceedings when it took possession of the premises and, therefore, acquired no greater rights to possession than MOSDOS had (See, Rodriquez v. Dixie, N.Y.C., Inc., 26 AD3d 199, National Refund v. Plummer Realty, 22 AD3d 430, EEMA Industries v. Clarity Light Tech., 2018 NY Slip Op 31986(U) [Supreme Court, New York County, Ibonic Holdings, LLC v. Vessix, 2018 NY Slip Op 33215(U) [Supreme Court, New York County] ).
In Rodriquez, supra., the Appellate Division held that the although the non-party and defendant were separate entities, they shared the same address, the same owner and the same corporate counsel. As such, the non-party knew or should have known that it was an intended subject of the proceeding. Similarly, YESHIVA is deemed to have notice of petitioner's right to recover possession of the premises when it took possession.
Based on the foregoing, the court finds that justice requires the final judgment dated December 8, 2011 should be amended to award possession of the premises to petitioner and against both MOSDOS and YESHIVA, its companion entity. With respect to the money awarded in the said judgment against MOSDOS, the money has been paid by respondent . Accordingly, the amended judgment will contain no money award.
In an earlier proceeding, petitioner's attorney Christopher H. Feldman, submitted an undated affirmation, received by the court on November 9, 2016 acknowledging that MOSDOS paid petitioner the sum of $ 23,879.70 on February 15, 2012, after the judgment was signed.
The court notes that this proceeding has been ongoing for approximately eight years. The final judgment awarding possession of the premises to petitioner was rendered over seven years ago after extensive litigation, including a trial of all factual and legal issues. After a full review by an appellate court, the court's judgment was affirmed. Yet, YESHIVA, an entity closely related to MOSDOS with corporate officers in common to those of MOSDOS, remains in possession claiming to be an innocent victim of this proceeding. Any further delay in returning possession of the premises to petitioner would be contrary to the interests of justice.
To require petitioner to start this process all over again as against YESHIVA would, in the court's view, be an absurd result, particularly considering that if things don't go well for YESHIVA in the new proceeding, a new entity claiming possession would likely emerge requiring the commencement of still another new proceeding to delay, ad infinitum, petitioner's good faith effort to re-gain possession of the property it rightfully owns.
The court finds that the facts, the law and common sense dictate that the EAST RAMAPO CENTRAL SCHOOL DISTRICT have its building returned to it.
Based on the foregoing and on the court's own motion, it is hereby
ORDERED AND ADJUDGED that an amended judgment for possession be issued in favor of petitioner and against respondents, MOSDOS and YESHIVA, and it is further
ORDERED that an amended warrant of eviction be issued in favor of petitioner and against respondents, MOSDOS and YESHIVA, and it is further
ORDERED that any further applications relating to this proceeding made by any party be addressed only to the undersigned and submitted on at least 72 hours' notice by personal service or overnight mail to the opposing side, unless such application is made to a court having superior jurisdiction.
Amended judgment and amended warrant are signed herewith.
The aforesaid constitutes the Decision and Order of the Court