3905 ASSOC LLC v. CLARK (2022)

This non-payment proceeding was commenced by petition dated November 8, 2021. Respondent Roland Clark (Clark) answered in late November. After appearing at scheduled court dates on December 15, 2021, January 20, 2021, February 24, 2022 and March 10, 2022, respondent failed to timely appear on April 8, 2022.

Civil Court Directives and Procedures 222 (DRP-222), which became effective January 16, 2022, states that “No judgment or warrant will be issued on default without a motion by petitioner for such relief.” It has been broadly applied with the court requiring a compliant motion no matter when or under what circumstances the default occurs.

Defaults in Housing Court are of two varieties. A respondent can default by never answering the petition or appearing, or by failing to appear after having done so. (see Scherer and Fisher, Residential Landlord-Tenant Law in New York § 15:9 [2021 Update]).

In the Housing Court, where a respondent defaults in not answering (and not appearing), entry of judgment is not automatic. Rather, an application is made through the clerk's office and, upon proper papers, a judgment is issued [by the court]. (see 367 East 201st Street LLC v. Velez, 31 Misc. 3d 281, 288-289, 917 N.Y.S.2d 814 [Sup. Ct., Bronx County 2011]; Sella Propers. v. DeLeon, 25 Misc. 3d 85, 890 N.Y.S.2d 254 [App. Term, 2nd Dept. 2009]). However, when an answer is filed and a matter is noticed for trial, (see RPAPL § 745(1); Hognestad v. Rabideau, 55 Misc. 3d 977, 979, 53 N.Y.S.3d 824 [City Court, Albany County 2017]), the court may enter the default judgment upon respondent's failure to appear, without the intermediary application to the clerk's office. (see Scherer and Fisher, Residential Landlord-Tenant Law in New York § 15:9 [2021 Update]);

Since the DRP does not differentiate between the types of defaults, the reasonable inference is that it applies to both kinds.

DRP-222 was issued when many eviction protections for residential occupants expired [on January 15, 2022] with the sunset of Chapter 417 of the Laws of 2021, the successor to the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA). (L. 2020, Ch. 381; see generally, Sanchez-Tiben v. Washington, 73 Misc. 3d 721, 723-724, 155 N.Y.S.3d 741 [Civ. Ct., Bronx County 2021]).¹

Among the important functions of DRP motions is giving respondents additional notice that the petitioner still intends to seek their eviction and informing respondents they may qualify for a free attorney.²

DRP-222 also affords additional protections, via notice, to the class of respondents that might be in the military, by requiring non-military affidavits prior to the issuance of a default warrant of eviction. (see Civil Court Legal/Statutory Memorandum 152B (LSM 152B)).³

Given these considerations, applying DRP-222 to this case is unreasonable.

Respondent has appeared and filed an answer which notes, among other things, that he is not in the military; a DRP-222 motion should not be required prior to entry of the judgment.⁴

A court should not apply a statute so broadly as to reach unreasonable results. (see Sea Park East L.P. v. Foster, 74 Misc. 3d 213, 216, 160 N.Y.S.3d 792 [Civ. Ct., New York County 2021]; Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 246 N.E.2d 333 [1969] (“If the statute is so broadly drawn as to include the case before the court yet reason and statutory purpose show it was not intended to include that case, the court is justified in making an exception through implication.”)).

The court reasonably infers it must also apply Civil Court Directives as to avoid unreasonable results.

Consequently, petitioner is granted a final judgment of possession and in the amount of $14,821 representing arrears through April 2022; a warrant of eviction may issue forthwith.⁵

Respondent may, if he so wishes, file an order to show cause which seeks to vacate his default.⁶

SO ORDERED.

FOOTNOTES

1.   It must be noted that the Omicron variant was days removed from its peak when DRP-222 became effective. (see New York City May Have Hit Its Omicron Peak, Data Shows (forbes.com) [last accessed on April 13, 2022]).

2.   During the pandemic, the city of New York expanded “Right to Counsel,” making it broadly available to most respondents. Indeed, the DRP states that “if the respondent appears, counsel will be assigned”

3.   DRP-222 seems to require a non-military affidavit prior to issuance of a warrant of eviction. However, non-military affidavits are required prior to entry of judgment. (see LSM 152B; 301 West 111th Owners, LLC v. Wilson, 5 Misc. 3d 1020A, *1, 2003 N.Y. Slip Op. 51734(U), 2003 WL 23916327 [Civ. Ct., New York County 2002]).

4.   It is unclear whether pro-se answer forms included any language regarding military statutes at the time LSM 152B was issued. The answer here allows for respondent to note whether he is in the military or dependent on someone in the military. The court notes that the appearance prior to the respondent's non-appearance was within thirty (30) days. (see LSM 152B [where issue joined, a non-military affidavit required where last appearance was more than (30) days ago]).

5.   Execution of any warrant of eviction is stayed ten (10) days, rendering the earliest eviction date April 19, 2022.

6.   The court previously issued a short form order to the parties.

Shorab Ibrahim, J.