LLC v. YAISHAWN MELENDEZ (2026)

In this nonpayment proceeding respondents have moved to stay the execution of a judgment and warrant pursuant to CPLR § 2201. In support of the motion, respondents have filed the pro se Order to Show cause dated July 1, 2026, the affidavit of respondent Yoshabel Martinez, sworn to June 30, 2026, with two exhibits annexed thereto, to wit: Exhibit "A," the affirmation of Desiree Weisz-Epstein, Esq., dated March 25, 2026, and, Exhibit "B," petitioner's rent ledger for the subject premises. In opposition to the motion petitioner has submitted the affirmation of petitioner's counsel, Desiree Weisz-Epstein, Esq., and the affirmation of Joel S. Fisher, petitioner's managing member, dated July 20, 2026, with one unlabeled exhibit annexed thereto, to wit: an email exchange between respondent Martinez and petitioner's counsel, Weisz-Epstein.

Oral argument of the motion was had on July 27, 2025.

Upon reading the foregoing papers, hearing the arguments of the parties, and with due deliberation thereon, the Court decides as follows.

Procedural History

This proceeding was commenced by the filing of a Notice of Petition and Petition, both dated December 27, 2024. After two preliminary court appearances, on January 13, 2025 and February 3, 2025, the matter was settled in open court on March 10, 2025.

By affirmation of petitioner's counsel dated March 25, 2026, petitioner applied for a judgment of possession and warrant of eviction, alleging that respondents breached the terms of the stipulation of settlement, and after expiration of a cure period failed to cure the default. Consequently, on May 18, 2026, the Court issued a Judgment of Possession, and Warrant of Eviction.

Significantly, the proposed judgment submitted by petitioner, which the Court signed, was limited to the issue of possession — there was no reference to a money judgment for arrears, or to further proceedings to determine the amount of same.

On July 1, 2026, the Court received a proposed Order to Show Cause, signed by the Court (Santos, J.) on that date, which brought on the instant motion.

On July 29, 2026, the Court received a letter, dated July 28, from petitioner's counsel stating inter alia as follows:

Please note that the as the Petitioner's attorney, I ask the court to have the matter regarding the Warrant of Eviction against the appearing respondent and defaulting respondent withdrawn and the Motion granted to the with respect to the execution of the Warrant of Eviction.

Additionally, I respectfully ask the court and your honor to grant leave to restore the matter for a trial or hearing on the merits and the facts and granting leave for Petitioner to make a motion on notice to amend the petition to include all rents through current date and /or date of the hearing.

The Court notes that the above letter is incomprehensible in that at that point in time petitioner had no motion pending which could be withdrawn, and alternatively, if by the letter petitioner's counsel meant to request that respondents' motion be "withdrawn," it was not petitioner's motion to withdraw.

Thereafter, in an email received by the Court on August 5, 2026 respondents' counsel, advised that respondents had surrendered possession of the subject premises but continue to contest the amount of arrears allegedly due.

The Stipulation of Settlement

The terms of the oral stipulation of settlement placed on the record on March 10, 2025 are as follows: (1) respondents acknowledged rent arrears, as of March 10, 2025, in the amount of $23,555.00; (2) respondents acknowledged that requested repairs had been made by petitioner; (3) respondents agreed to pay $3,275.00 by March 15, 2025; (4) respondents agreed to pay $325.00 per month, commencing April 15, 2025, until all arrears were fully paid; (5) respondents would pay current rent, as it came due, on the 1st day of each month; (6) for all payments required under the stipulation, time would be of the essence; (7) petitioner would consider renewal of the respondents' lease in six months, provided all payments in that period were made as stipulated; and (8) in the event of a default, petitioner would give respondents five days' notice to cure.

Relief Requested by the Parties

The relief sought by respondents' motion is solely an order "staying the execution of a judgment and warrant pursuant to CPLR § 2201." In support of the motion, respondent Martinez's affidavit simply avers that the total amount of rent owed as of the making of the affidavit, June 30, 2026, is $2,000.00, and that allowing an eviction "would not be just." Of course, as in the interim respondents surrendered possession, this last averment is now moot.

In opposition to the motion, petitioner's counsel, in her affirmation in opposition, alleges that respondents breached the stipulation of settlement and requests denial of the motion and execution of the warrant. The accompanying affidavit in opposition of petitioner's managing member likewise avers that respondents breached the stipulation of settlement and requests denial of the motion, permitting the eviction to proceed and a "money judgment to execute forthwith" in the amount of $22,630.00.

The threshold question thus presented to the Court is as follows: where in the context of a motion that has been rendered moot by the movants' subsequent actions, can the Court consider the responding party's request for relief, articulated in its opposing papers, despite the absence of a formal notice of cross-motion therefor?

Discussion

A party responding to a motion who seeks affirmative relief in connection with the motion must do so by way of a formal cross-motion. CPLR 2215 provides inter alia that "a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers." Additionally, CPLR 2214 requires that any notice of motion specify the time and place of the hearing, supporting papers, relief demanded, and grounds therefor—requirements that equally apply to cross-motions.

While the necessity of a formal cross-motion is the general rule, Courts have recognized judicial discretion to entertain requests for affirmative relief that do not strictly comply with CPLR 2215. In Fried v. Jacob Holding, Inc., 110 AD3d 56, 970 N.Y.S.2d 260 (2nd Dept. 2013), the Appellate Division, Second Department, acknowledged that courts did not err in considering requests for affirmative relief made without a formal cross notice of motion where the opposing party had actual notice of the nature of the request and submitted opposition to it, and was therefore not unduly prejudiced.

More recently, in Charles Bardylyn Enters., Inc. v. Rockingham Ins. Co., 228 AD3d 818, 214 N.Y.S.3d 403 (2nd Dept. 2024), the Second Department reiterated that while "generally, a formal notice of motion or cross-motion should be used to request relief, courts 'retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215,' " citing, inter alia, Fried, supra, and held that the Supreme Court was found to have improvidently exercised its discretion by denying affirmative relief solely on the ground that it was not presented as a proper cross-motion.

Similarly, in Wechsler v. People ex rel. Com'r of Env't Conservation of State of New York, 13 AD3d 941, 787 N.Y.S.2d 433 ( 3rd Dept. 2004), the Third Department entertained a cross-motion for summary judgment despite the absence of a formal notice of cross-motion, finding no error where the cross-motion provided actual notice to the opposing party and they had responded to it.

In the case at bar, the respondents' motion was based largely on the calculation of rent arrears, i.e., that the they do not owe the amount of rent claimed by petitioner. In its opposing papers petitioner likewise focuses on the amount of arrears and disputes respondents' calculations.

Under theses circumstances, the Court is of the opinion that no prejudice attaches to Its consideration of the petitioner's opposing papers as a cross-motion and accordingly deciding the issues presented thereby on the merits.

The Court will now turn to the issue of the amount of rent arrears due and owing from respondents. Respondents claim that their current rent is $2,950.00 per month and that the arrears owed as of June 30, 2026 are $2,000.00, citing petitioner's rent ledger, a copy of which is annexed as an exhibit to their motion papers. Petitioner claims that the monthly rent was increased from $2,950 per month to $3,030 per month, effective July 1, 2025, and attaches to its papers a copy of an email trail to respondents advising of the increase. The email exchange also shows that petitioner sent the aforementioned rent ledger to respondents. In its opposing papers, petitioner claims that respondents "severely" underpaid their payment obligations and gives four specific instances of monthly payments that fell below the requirements of the stipulation of settlement. The four examples given correspond to entries in the rent ledger attached to respondent's papers. Without further detail given, petitioner claims that the total amount of arrears, as of July 20, 2026, is $22,630.00 (Fisher Aff. ¶ 8). The Court notes that at an appearance held on July 6, 2026, petitioner was granted leave to amend its petition to include the July rent as due and owing. The last transaction entered on the rent ledger is dated April 6, 2026 reflecting a payment by respondents in the amount of $1,200.00.

Petitioner's rent ledger shows that the balance due from respondents, as of April 6, 2026, is $20,280.00 (Martinez Aff., Exh. "B."). Respondents have not submitted evidence of any payments made after that date. Additionally, pursuant to the stipulation of settlement respondents were obligated to pay $3,355.00 per month for the months of May, June and July (current rent of $3,030.00 plus payment towards arrears of $325.00). Accordingly, as of July1, 2026, the total amount due from respondents would be $30,345.00.

Respondents argue that the total paid by them for the period of March 30, 2025 and March 30, 2026 totaled $40,225.00, and that therefore they overpaid petitioner. A review of the rent ledger, which respondents themselves rely upon and submitted to the Court, shows however that they have failed to take into account their obligation to pay the current rent as it became due.

By reason of the foregoing, the Court determines that respondents' motion is moot, that in Its discretion petitioner's responding papers will be considered as a cross-motion, and upon the merits, respondents owe rent arrears in the sum of $30,345.00. However, as noted above, in its opposition papers petitioner makes demand only for the lesser amount of $22,630.00.

Accordingly, it is hereby

ORDERED, that the respondents' motion for a stay of execution of the Judgment and Warrant of Eviction is denied as moot; and it is further

ORDERED, that petitioner is entitled to amendment of the Judgment heretofore entered in this proceeding to the extent of including therein a money judgment against respondents in the amount of $22,630.00; and it is further

ORDERED, that petitioner is directed to settle a Judgment in accordance with the foregoing, on notice to respondents, within 60 days of the date hereof.

Dated: October 4, 2026

Garnerville, New York

ENTER.

Hon. GEORGE G. COFFINAS,

Town Justice, Town of Haverstraw

George G. Coffinas, J.