Opinion
Index No. L&T 307327-23
10-24-2023
WFHA ROCKAWAY L.P., Petitioner v. Lucille STEVENS, Respondent
Rosenblum & Bianco, L.L.P., Attorneys for Petitioner.
Rosenblum & Bianco, L.L.P., Attorneys for Petitioner.
In this nonpayment proceeding seeking rent for the period of June 2021 through February 2023, the Petition states that Respondent Lucille Stevens has defaulted on a written agreement of unspecified term. Now before the court is Petitioner's application for a default judgment following Respondent's failure to answer. For the reasons set forth below, the court denies Petitioner's request without prejudice to renewal upon providing proof there was an ongoing agreement to pay rent in effect as of commencement (see RPAPL 711(2), CPLR 409(a) ).
RPAPL 732(3) directs the court to "render a judgment in favor of the petitioner" in a nonpayment where the respondent does not answer within ten days of service. Given this statutory imperative, the Court of Appeals has held that the civil court is without discretion to schedule an inquest in lieu of adjudicating a default application as "the statute does not authorize the Judges to fashion additional, individualized protections upsetting the legislative scheme" ( Brusco v. Braun , 84 N.Y.2d 674, 682, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ). Notwithstanding this mandate, "[n]othing in the Brusco decision relieves the Civil Court of its obligation to review the papers for facial sufficiency prior to entering a default final judgment" ( Kentpark Realty Corp. v. Lasertone Corp. , 3 Misc.3d 28, 779 N.Y.S.2d 324, 326 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2004] ).
It is axiomatic that a default judgment may not be entered based on facially defective papers (see Merrbill Holdings, LLC v. Toscano , 100 N.Y.S.3d 610 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] ). While a non-amendable defect, such as the failure to serve a rent demand, will preclude entry of a default judgment and require dismissal (see Lakeview Affordable Hous., LLC v. Turner , 121 N.Y.S.3d 510 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ), other inadequacies in the papers may be cured upon resubmission (see Sella Props. v. DeLeon , 25 Misc.3d 85, 890 N.Y.S.2d 254 [App. Term, 2d Dept., 2d, 11th &13th Jud. Dists. 2009] ). The court may also request additional proof pursuant CPLR 409(a) "when confronted with such circumstances as a patent insufficiency in the pleadings and accompanying affidavit" ( Brusco v. Braun , 199 A.D.2d 27, 32-33, 605 N.Y.S.2d 13 [1st Dept. 1993], affd 84 N.Y.2d 674, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ; see also Morris Hgts. Restoration v. Torres , 25 Misc.3d 1233[A], 2009 WL 4263335 [Civ. Ct., Bronx Co. 2009] ).
In reviewing Petitioner's application, the court is mindful that in a summary proceeding "relief can be granted to a petitioner only where all the elements of the petitioner's cause of action have been made out, a requirement which is sometimes referred to as ‘jurisdictional’ " ( 1646 Union v. Simpson , 113 N.Y.S.3d 459 [App. Term, 2d Dept., 2d, 11th &13th Jud. Dists. 2019] [internal citations omitted]). One of the necessary elements of a petition is to plead "the interest of the tenant and the facts upon which the proceeding is based" ( Migliaccio v. Childs , 118 N.Y.S.3d 915 [App. Term, 2d Dept., 2d, 11th &13th Jud. Dists. 2019], citing RPAPL 741 ). A petition containing a material omission cannot support entry of a judgment because it fails to adequately apprise the tenant and the court of the basis of the landlord's claim (see Aero Mgt. v. Moghadasian , 160 N.Y.S.3d 741 [App. Term, 2d Dept., 2d, 11th &13th Jud. Dists. 2022] ).
In a nonpayment proceeding one of the core facts that must be pled and established is that there was "a rental agreement in effect at the time the proceeding [was] commenced pursuant to which rent is due and owing." ( Fairfield Beach 9th, LLC v. Shepard-Neely , 182 N.Y.S.3d 486 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2022] ); see also 6 W. 20th St. Tenants Corp v. Dezertzov , 169 N.Y.S.3d 778 [App. Term, 1st Dept. 2022] ; ( 265 Realty, LLC v. Trec , 975 N.Y.S.2d 370 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013] ). Merely alleging that the parties at some point in time executed a lease of indeterminate term is therefore insufficient, standing alone, to warrant entry of a default judgment because such statement does not enable the court to determine if the agreement remained in effect upon commencement of the proceeding. Here, the Petition pleads that the parties have entered into a "WRITTEN agreement" without stating its duration. The affidavit of merit provides no further clarity, failing to attach the agreement or state the expiration date, a problematic omission given that the Petition seeks rent for twenty-one months, a period longer than a typical one-year lease. In other words, if the "agreement" referenced in the Petition is the parties’ initial lease rather than a renewal, it has potentially expired and there may not have been an agreement to pay rent in effect when this proceeding was commenced. Thus, based on the proof offered in the default judgment application, the court simply cannot discern if Petitioner has stated a cause of action under RPAPL 711(2).
Nor does the fact that a tenant made payments after expiration of their lease support maintenance of a nonpayment proceeding solely by virtue of the creation of a month-to-month tenancy pursuant to RPL 232-a ; such a statutory tenancy is not the equivalent of an implied contract of indefinite duration (see Bleecker St. Tenants Corp. v. Bleeker Jones LLC , 65 A.D.3d 240, 882 N.Y.S.2d 42 [1st Dept. 2009] ["A month-to-month holdover tenancy that results by operation of law when a lease expires does not extend the term of the expired lease; rather, each month is a new term for a new period, each a separate and new contract"], revd on other grounds 16 N.Y.3d 272, 920 N.Y.S.2d 291, 945 N.E.2d 484 (2011) ; (ZB Prospect v. Olenick , 2023 N.Y. Slip Op. 23115, 79 Misc.3d 592, 191 N.Y.S.3d 895 [Civ. Ct., Kings Co. 2023] ); Shepard-Neely , 182 N.Y.S.3d 486 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2022] ); (152nd Assoc., L.P. v. Gassama , 119 N.Y.S.3d 801 [App. Term, 1st Dept. 2019] ). To extent the Appellate Term has concluded that that the requirement in RPL 232-b for a month-to-month tenant residing outside of New York City to provide 30 days’ notice prior to vacatur may give rise to an implied rental agreement for any period prior to the notice (see, e.g., Tricarichi v. Moran , 38 Misc.3d 31, 959 N.Y.S.2d 372 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012] ), this rationale is inapplicable within New York City, which is governed by RPL 232-a.
While the failure of Petitioner to plead or offer proof of an ongoing contractual arrangement to pay rent is not necessarily so fundamental an omission as to necessitate dismissal, it is a defect nonetheless that requires correction before the entry of a judgment (see Tello v. Dylag , 15 N.Y.S.3d 715 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2015] ); ( Jeffco Mgt. Corp. v. Local Dev. Corp. of Crown Hgts. , 881 N.Y.S.2d 364 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2009] ). Accordingly, Petitioner's application for a default judgment is denied without prejudice to renewal upon filing an affidavit of merit that sets forth sufficient information for the court to determine that a rental agreement was in effect as of commencement of this proceeding. This constitutes the decision and order of the court.