SUTPHIN LLC, Petitioner(s), v. BILAL, McBride, XYZ Corp., N.A.I. Book Store, Devarie, “John” “Doe,” and “Jane” “Doe,” Respondent(s).
Sutphin LLC, Petitioner(s), v. Bilal, McBride, XYZ Corp., N.A.I. Book Store, Devarie, Johnson, and “Jane” “Doe,” Respondent(s).
The following papers were read on Respondent Johnson's motions to restore the action to the calendar for trial on a date certain and for a traverse hearing:
Petitioner's Order to Show Cause to restore to the calendar the proceeding under index number LT-050257-20/QU and Affidavit in Support dated May 18, 2021 (“Store Front Order to Show Cause”). 1
Petitioner's Order to Show Cause to restore to the calendar the proceeding under index number LT-050258-20/QU and Affidavit in Support dated May 18, 2021 (“Basement Order to Show Cause,” collectively with the Store Front Order to Show Cause, the “OSC”). 2
In notices of petition dated January 2, 2020 and filed with the court on January 7, 2020, Petitioner commenced these commercial holdover proceedings for premises known as [XXX] Sutphin Blvd, Jamaica, NY 11435 (“Premises”) to recover possession and $1,500.00 in legal fees (RPAPL 711). Petitioner sought possession of the First Floor Store Front in the proceeding under index number LT-050527-20/QU (“Store Front Proceeding”) and the Basement under index number LT-050528-20/QU (“Basement Proceeding,” collectively with the Store Front Proceeding, the “Proceedings”). Johnson, who appeared as Respondent “John” “Doe” in the Store Front Proceeding and Johnson in the Basement Proceeding, now moved to restore the Proceedings to the calendar and requested a traverse hearing for both proceedings. Petitioner did not oppose Respondent Johnson's OSC.
After an inquest on February 11, 2021, the court (G., J.), in two separate decisions and orders dated March 1, 2020 and two separate judgments entered March 3, 2021, granted Petitioner a judgment of possession of the Premises in both proceedings against all respondents, issued a warrant of eviction forthwith, stayed execution of the warrant of eviction for seven (7) days, and indicated that the earliest eviction date would be March 23, 2021 (CPLR 749[a]). Johnson moved by orders to show cause dated March 16, 2021 to stay the eviction and restore the actions to the calendar, but the court declined to sign such orders to show cause. On May 18, 2021, Johnson moved by OSC to stay the eviction, restore the action to the calendar, and requested a traverse hearing for the Proceedings on the grounds that the court lacked personal jurisdiction over him, and that Petitioner failed to personally serve him with the 10-day notice. The court (K., J.) signed the OSC and scheduled the matter for May 25, 2021. When Petitioner failed to appear on that date after third call, this Court adjourned the matter to June 2, 2021, and instructed Johnson to notify Petitioner by phone, email and overnight mail. On June 2, 2021, after this Court conducted oral argument with Petitioner and Johnson, the OSC was deemed to be fully submitted.
III. Discussion and Decision
A. Jurisdiction of the Court
Pursuant to CPLR 2221 (a)(2), this Court has the jurisdiction to hear and decide the OSC which was signed by Judge K. affecting Judge G.’s decision and order (see O'Ferral v City of New York, 8 AD3d 457, 458 [2d Dept 2004]; CPLR 2221 [a]).
In the interest of judicial efficiency, this Court decides the OSC in one decision and order because it asked for identical relief and involved the same parties.
B. Proceedings Not Stayed
§ 3 of the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (“Act”) provides:
Any eviction proceeding pending on the effective date of this act, including eviction proceedings filed on or before March 7, 2020, or commenced within thirty days of the effective date of this act shall be stayed for at least sixty days, or to such later date that the chief administrative judge shall determine is necessary to ensure that courts are prepared to conduct proceedings in compliance with this act and to give tenants an opportunity to submit the hardship declaration pursuant to this act.
(see Matter of Cabrera v Humphrey, 192 AD3d 227, 234 [3d Dept 2021]). As such, the eviction proceeding in our instant case was stayed for at least sixty (60) days. “[A]ll pending commercial proceedings prior to the effective date were provided a 60-day stay through May 9, 2021, and filings within 30-days of the effective date were provided a 60-day stay from the date of filing” (Memorandum of Chief Administrative Judge, May 24, 2021 at 4 n. 2). Since the Proceedings were pending before the effective date of the Act, the stay in this case expired after May 9, 2021.
Act § 7 also provides:
In an eviction proceeding in which an eviction warrant or judgment of possession or ejectment has not been issued, including eviction proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, the eviction proceeding shall be stayed until at least August 31, 2021.
Since the judgment of possession and warrant of eviction were issued as of March 3, 2021, however, Johnson had not filed a hardship declaration, the Proceedings are not stayed by Act § 7.
C. Johnson's OSC to Restore and Request Traverse Hearing
Johnson contended that he was entitled to restore the Proceedings to the calendar on the grounds that he was not served with the petition or notice to quit and that the process server did not exercise due diligence, and requested a traverse hearing (OSC, Affidavit of Johnson at 1).
It is well established that a process server's affidavit of service demonstrates proper service and raises a presumption of proper service (Wells Fargo Bank, N.A. v Guerrero, 189 AD3d 1669, 1670 [2d Dept 2020]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1186 [2d Dept 2019]). In the instant matter, the affidavits of service indicated that the notice of petition and petition in the Proceedings were served on January 11, 2020 by conspicuous place service (see CPLR 308). Here, Johnson's conclusory denial that he was not served with the petition is insufficient to rebut the presumption of proper service (Flanagan v Delaney, 194 AD3d 694, 697 ; Wells Fargo Bank, N.A. v Guerrero, 189 AD3d at 1670; Zhuoya Luo v Wensheng Wang, 176 AD3d 1016, 1018 [2d Dept 2019]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3D at 1186) and does not warrant a traverse hearing (Countrywide Home Loans, Inc. v Smith, 171 AD3d 858, 859 [2d Dept 2019]). In order for this Court to grant a traverse hearing, “the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service” (Wells Fargo Bank, N.A. v Guerrero, 189 AD3d at 1670; PennyMac Corp. v Barbosa, 189 AD3d 863, 865 [2d Dept 2020]).
In addition, the issue of personal jurisdiction may be waived by appearance in the proceeding without raising a defense of lack of personal jurisdiction (see JPMorgan Chase Bank, N.A. v Lee, 186 AD3d 685, 686 [2d Dept 2020]; Eastern Sav. Bank, FSB v Campbell, 167 AD3d 712, 714 [2d Dept 2018]; New York City Hous. Auth (Boulevard Houses) v Dancil, 55 Misc 3d 136[A], 2017 NY Slip Op 50499[U] *1 [App Term 2d Dept 2017]). According to Judge G.’s decision and order dated March 1, 2021 for the Store Front Proceeding, Johnson personally appeared at the inquest held on February 11, 2021 for the Store Front Proceeding, claiming that he was “currently occupying the property in the basement which was the subject of the inquest under [the Basement Proceeding]” (G. decision for Store Front Proceeding at 1), challenged the validity of the deed to petitioner's property, and claimed liens existed on the Premises. According to Judge G.’s decision and order dated March 1, 2021 for the Basement Proceeding, Johnson also personally appeared for the Basement proceeding and asserted that all the tenants had not been served with the petition, in addition to arguments presented in the Store Front Proceeding, but presented no evidence supporting any of his assertions. By participating in the inquest in the Proceedings without raising a lack of personal jurisdiction defense for either proceeding, Johnson appeared informally by actively litigating the Proceedings before the court (see JPMorgan Chase Bank, N.A. v Lee, 186 AD3d at 686; Jaramillo v Asconcio, 151 AD3d 947, 949 [2d Dept 2017]; New York City Hous. Auth. (Boulevard Houses) v Dancil, 2017 NY Slip Op 50499[U] *1, see Eastern Sav. Bank, FSB v Campbell, 167 AD3d at 714). Johnson's participation in the merits of the Proceedings indicated an intent to submit to the court's jurisdiction and conferred personal jurisdiction on the court (see JPMorgan Chase Bank, N.A. v Lee, 186 AD3d at 686; Eastern Sav. Bank, FSB v Campbell, 167 AD3d at 714).
Accordingly, it is
ORDERED that Respondent Johnson's orders to show cause under index numbers LT-050257-20/QU and LT-050258-20/QU are both denied.
This constitutes the Decision and Order of the court.
Wendy Changyong Li, J.
Was this helpful?