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Civil Court, City of New York,

SAHA, Plaintiff(s), v. BAY OF BENGAL AUTO REPAIR, Defendant(s).

Index No. CV-030382-21QU

Decided: June 27, 2022

Pro Se Plaintiff Defendant's Counsel: Angelo Roberto Picerno, 3640 Main Street Suite 508, Flushing, NY 11354

I. Papers

The following papers were read on Defendant's order to show cause seeking various Reliefs (as defined below):


Plaintiff's Order to Show Cause signed on December 8, 2021 (“OSC”) together with all supporting exhibits 1

II. Background

This matter was first brought to this Court's attention on June 8, 2022 by Part 34 clerk trying to figure out which judge took submission of the OSC and where was the decision. Investigation revealed that the OSC was signed on December 8, 2021 for January 4, 2022 appearance. According to court's case summary, the judge (“OSC Signing Judge and Deciding Judge”) who signed the OSC also presided over this matter on January 4, 2022, however, adjourned this matter to February 8, 2022. The OSC Signing Judge and Deciding Judge presided over the February 8, 2022 hearing, however, further adjourned this matter to March 24, 2022. Another judge presided over the March 24, 2022 hearing and took the OSC on submission. This Court did not sign the OSC nor have presided over any of the hearings. Equally, this Court is not aware of this matter until June 8, 2022, however, pursuant to Supervising Judge's directive, this matter is now before this Court for determination.

Here, the OSC seeks to “stay the sale or destruction of property pending hearing of the OSC” and “selling or destruction of said chattel be stayed” (collectively, the “Relief”). According to court's system, no opposition was filed. This Court's decision is based on all electronic filings available through UCMSLC as of June 27, 2022. According to the OSC affidavit and supporting documents, it appears that there were a notice of lien sale, as well as an affirmation and bill of sale (collectively, “Notice of Lien Sale”) in connection with a pending lien sale of an automobile, which presumably belonged to the Plaintiff, and a letter from the Department of Motor Vehicle dated October 4, 2021 (“DMV Letter of 10/04/21”) addressed to Plaintiff regarding “Bay of Bengal Auto Repair & Body Shop Inc.” as an “official warning letter” with the “following violations[:] Regulation 82.5(c) Willfully failed to complete invoice as required in that on 9/25/20 Bay of Bengal Auto Repair and Body Shop Inc. issued an invoice that failed to contain the status of any part used which is not new (i.e., used, rebuilt, A/M,) Name of customer, the repair shop registration number and the odometer reading both in and out on Saha's 2020 Toyota Rav 4, New York Plate No.XXX, VIN XXX.” (“Vehicle”) (see DMV Letter of 10/04/21.)

III. Discussion

Subject Matter Jurisdiction of Civil Court over Plaintiff's OSC

In its OSC, pro se Plaintiff presented copy of the Notice of Lien Sale, the DMV Letter of 10/04/21 and prayed for Reliefs; however, it failed to raise any legal argument as to why this Court should grant the Relief requested. In the interest of justice, this Court will address the legal issue de novo.

Plaintiff's OSC sought to “stay the sale or destruction of property”. It is unclear from the face of the Plaintiff OSC, which kind of property Plaintiff was referring to. However, Plaintiff OSC affidavit signed by Plaintiff directed to the DMV Letter of 10/04/21 and cited the contents of the DMV Letter of 10/04/21. It appears that the “property” referred to in Plaintiff's OSC was the Vehicle with a mechanic's lien, together storage fees. As a result, Plaintiff's OSC essentially sought a stay of a mechanic lien sale.

Although no party has challenged the subject matter jurisdiction of Plaintiff's OSC based on submission, this Court must address this issue in order to decide on the OSC, “since any judgement rendered without subject matter jurisdiction would be void ab initio” (Maloney v Rincon, 153 Misc 2d 162, 581 N.Y.S.2d 120 [1992]) and the subject matter jurisdiction, “unlike personal jurisdiction, cannot be waived by a party's failure to object” (Maloney v Rincon at 163, 581 N.Y.S.2d 120, citing Gager v White, 53 N.Y.2d 475, 485, 442 N.Y.S.2d 463, 425 N.E.2d 851).

NY Constitution, article VI, § 15 states that the Civil Court of the City of New York has “jurisdiction over actions and proceedings for the recovery of chattels and actions and proceedings for the foreclosure of mechanics liens and liens on personal property where the amount sought to be recovered or the value of the property does not exceed twenty-five thousand dollars exclusive of interest and costs ․” (NY Const, art VI, § 15[b]). New York Lien Law provides that an owner of a chattel “may commence a special proceeding to determine the validity of the lien[;] [and that] [t]he special proceeding may be brought in any court which would have jurisdiction to render a judgment for a sum equal to the amount of the lien ․” (NY Lien Law § 201-a). Here, the court would have had the subject matter jurisdiction over a special proceeding to determine the validity of the lien placed on the Vehicle if such special proceeding were commenced in the court (Maloney v Rincon at 163, 581 N.Y.S.2d 120). However, in our instant matter, Plaintiff did not initiate the special proceeding for a determination of the validity of the mechanic's lien imposed on the Vehicle, but instead moved to stay the sale of the mechanic lien. Thus, this Court was left to determine the court's subject matter jurisdiction over Plaintiff's OSC, where an order to stay a lien sale was prayed for.

As the court in Maloney v Rincon states, there is a “statutory gap” in terms of whether “the Civil Court [has] the subject matter jurisdiction to enjoin a lien sale” (Maloney v Rincon at 163, 581 N.Y.S.2d 120). Although higher courts are silent on this issue, most Civil Courts of the City of New York believe, after legislative intent and history were investigated, that they lack the power to grant “preliminary injunctive relief” staying a mechanic's lien sale (Maloney v Rincon at 164, 581 N.Y.S.2d 120, cited by Mobile Woods Ambulette Trans. Corp. v. E-Z Parking Mgmt., 2003 N.Y.L.J. Lexis 2702; Mongelli v. Cabral, 166 Misc.2d 240, 632 N.Y.S.2d 927; Hollyer v. Leacock, 1994 N.Y.L.J. Lexis 9383, 1994 WL 16859299). Here, Plaintiff's OSC moved to stay the sale of a lien; thus, Plaintiff was essentially requesting the court to issue an injunction order or restraining order to stop the sale of the lien.

It is a well-established principle that “[t]he Civil Court of the City of New York is a court of limited jurisdiction, having no general equity jurisdiction except as specifically provided by law” (W.H.P. 20, Inc. v. Oktagon Corp., 251 A.D.2d 58, 673 N.Y.S.2d 691, citing Kwoczka v Dry Dock Sav. Bank, 52 Misc.2d 67, 275 N.Y.S.2d 156). Although New York City Civil Court Act § 203 provides New York City Civil Courts with the power to establish, enforce or foreclose mechanic's lien filed upon a real property if the value of the mechanic's lien does not exceed $25,000 (NY City Civ Ct Act § 203[e]), here, the Vehicle is not a real property; therefore, New York City Civil Court Act § 203 does not apply. In addition, pursuant to New York Lien Law § 19, “[an] owner [of a property] or any other party in interest may apply to the supreme court of this state, or to any justice thereof in which the notice of lien is filed, for an order summarily discharging of record the alleged lien” (NY Lien Law § 19, emphasis added).

New York City Civil Court Act § 209 provides the Civil Court with the power to issue orders “of attachment or of arrest, a warrant to seize a chattel as provided in § 207 of the lien law, and an order of seizure of a chattel” (NY City Civ Ct Act § 209 [a]). However, it provides the Civil Court with no power to issue an “injunction or restraining order” (NY City Civ Ct Act § 209 [b]) unless “pursuant to [CPLR] 7102 (d) [order of seizure], CPLR 7103(c) [returning chattel in custody of sheriff] and CPLR 7109 [unique chattel]” (NY City Civ Ct Act § 209 [b] [1]; Mobile Woods Ambulette Tran. Corp. v. E-Z Parking Mgmt., 2003 N.Y.L.J. Lexis 2702). “Thus, pursuant to CCA 209(b)(1) [i.e. New York City Civil Court Act § 209 (b) (1)], in order for Civil Court to grant a stay, plaintiff had to have moved for an order of seizure pursuant to CPLR 7102(d) and by implication, met all its requirements” (Mobile Woods Ambulette Tran. Corp. v E-Z Parking Mgmt. at 5). Here, Plaintiff did not move for an order of seizure from the court; instead, Plaintiff's OSC only prayed for a stay of the lien sale. As a result, the court does not have subject matter jurisdiction over Plaintiff's OSC; therefore, this Court must deny the OSC.

IV. Order

Accordingly, it is

ORDERED that Plaintiff's Order to Show Cause is denied for lack of subject matter jurisdiction.

Defendant is on notice that if it is decided after due process that Defendant does not have the right to possess or sell the Vehicle, Defendant may be found liable pursuant to relevant laws.

This constitutes the DECISION and ORDER of the Court.

Wendy Changyong Li, J.

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