Opinion
Index No. LT-302807-21/QU
03-18-2022
MOSAVER REALTY, Petitioner(s), v. LUXURY KITCHEN C., Respondent(s).
Petitioner's counsel: Yvette Vera Dudley, 217-01 Merrick Blvd, Suite 202, Springfield Gardens, NY 11413 Respondent's counsel, N/A. Defendant failed to answer
Petitioner's counsel: Yvette Vera Dudley, 217-01 Merrick Blvd, Suite 202, Springfield Gardens, NY 11413
Respondent's counsel, N/A. Defendant failed to answer
Wendy Changyong Li, J.
I. Papers
The following papers were read on Petitioner's motion for a judgment of possession, money judgment and issuance of a warrant of eviction:
Papers/Numbered
Petitioner's Notice of Motion and Affirmation and Affidavit in Support dated June 28, 2021 ("Motion ") and electronically filed with the court on July 8, 2021. 1
II. Background
In a notice of petition and petition ("Petition ") date May 17, 2021 and filed on May 18, 2021, Petitioner commenced this commercial nonpayment proceeding against Respondent for premises known as [XXX] Merrick Boulevard, Jamaica, New York ("Premises "), to recover $15,827.26 in unpaid rent from December 2020 to April 2021, a water and sewer bill, and late fees from December 2020 to March 2021, and a judgment of possession ( RPAPL 711[2] ). Respondent failed to answer the Petition (see Motion, Aff. of Dudley, ¶ 4 ). Petitioner moved for a judgment of possession, money judgment and issuance of a warrant of eviction.
The Motion appeared on the Part 52 Calendar on August 20, 2021, at which Respondent failed to appear. The Court adjourned the Motion to September 23, 2021, and instructed Petitioner to notify Respondent of the adjournment. Petitioner notified Respondent of the adjournment by letter, which was served at the Premises upon a person of suitable age and discretion, telephone call, and certified mail with return receipt requested. The Motion was submitted without opposition.
III. Discussion and Decision
A special proceeding is required to remove a tenant from possession of premises (see RPAPL 711 ). The Petition was properly verified by Petitioner's attorney and contained all the required information (see RPAPL 741 ). In addition, on June 4, 2021, Petitioner properly served the Petition upon Respondent by service on a person of suitable age and discretion and mailed to Respondent at the Premises ( RPAPL 735[1][b] ). Petitioner also served the fourteen-day rent demand by conspicuous affixation of the notice with the required mailings ( RPAPL 711[2] ; 735[b][1]). Evidence of Petitioner's rent demand satisfied a condition precedent to the nonpayment proceeding (see 36 Main Realty Corp. v Wang Law Off., PLLC , 49 Misc 3d 51, 53 [App Term 2d Dept 2015] ). Finally, Petitioner supported its motion for a judgment with the affidavit sworn on personal knowledge which is required for a default final judgment ( 136-76 39th Ave., LLC v Ai Ping Wu , 55 Misc 3d 128[A], 2017 NY Slip Op 50363[U] *1 [App Term 2d Dept 2017]; Sella Props. v DeLeon , 25 Misc 3d 85, 87 [App Term 2d Dept 2009] ). The affidavit of Mosaver, president of Petitioner, established the amount of rent, bill and fees due (see Motion, Affidavit of Mosaver at 2). Since Respondent failed to answer the Petition, the court must "render judgment in favor of the [P]etitioner" at the motion of Petitioner "and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service ..." ( RPAPL 732[3], see Matter of Brusco v Braun , 84 NY2d 674, 681 [1994] ). Therefore, this Court grants Petitioner judgment of possession and a money judgment for the past due rent, fees and water bill ( Melick v Ken's Serv. Sta., Inc. , 44 Misc 3d 143[A], 2014 NY Slip Op 51329[U] *2 [App Term 2d Dept 2014]; 809-811 Kings Highway, LLC v Pulse Laser Skin Care , 25 Misc 3d 130[A], 2009 NY Slip Op 52121[U] *2 [App Term 2d Dept 2009]).
"Upon rendering a final judgment for petitioner, the court shall issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, ... stating the earliest date upon which execution may occur pursuant to the order of the court, and commanding the officer to remove all persons named in the proceeding ..." ( RPAPL 749[1] ; Matter of Menella v Lopez-Torres , 91 NY2d 474, 479 [1998] ). Accordingly, this Court also grants Petitioner's motion for issuance of a warrant of eviction ( 809-811 Kings Highway, LLC v Pulse Laser Skin Care , 2009 NY Slip Op 52121[U] *2). Respondent may prevent issuance of, or nullify an issued warrant of eviction by depositing the full judgment amount with the court ( RPAPL 749[3] ; Melick v Ken's Serv. Sta., Inc. , 2014 NY Slip Op 51329[U] *2; 3881 Richmond Ave. Realty, Inc. v Richmond Amboy Realty , 17 Misc 3d 132[A], 2007 NY Slip Op 52001[U] *2 [App Term 2d Dept 2007]). The earliest execution date is April 7, 2022 (see RPAPL 749[2] ).
IV. Order
Accordingly it is
ORDERED that Petitioner's Motion is granted on default; and it is further
ORDERED that the Clerk shall enter a final judgment in favor of Petitioner in the amount of $15,827.26; and it is further
ORDERED that the Clerk shall enter a judgment of possession in favor of Petitioner; and it is further
ORDERED that the warrant of eviction is issued forthwith and may execute after service of a marshal's notice of eviction; and that the earliest eviction date is April 7, 2022.
This constitutes the court's Decision and Order.