J.A.M. ASSOCIATES, LLC, Petitioner, v. Milton GOMEZ and XYZ Corp., Respondents.
Motion Sequence Nos. 001 and 002 are hereby consolidated for purposes of this decision and order.
In Motion Sequence No. 001, petitioner seeks (1) to restore this proceeding to the calendar, and (2) for the Court to issue a default judgment and warrant of eviction against both respondents. In Motion Sequence No. 002, respondents seek to vacate any inquest judgment against any of the respondents, and (2) restore this proceeding to the calendar.
On April 6, 2022, petitioner appeared on Motion Sequence No. 001. Upon respondents’ failure to appear and in the absence of any written opposition, the Court found respondents to be in default and proceeded at that time to an inquest. The Court reserved decision on the inquest judgment and warrant of eviction.1
On April 13, 2022, respondent Milton Gomez sought an order to show cause to vacate any default or inquest judgment that may have been entered and to restore the proceeding to the calendar. The Court (Rivera, J) signed the requested order to show cause, which included a stay of all proceedings pending the determination of respondents’ application to vacate and restore, and directed the parties to appear on April 28, 2022.
On April 28, 2022, petitioner appeared by counsel, and Edwin Guzman appeared on behalf of the respondent business, which he identified as ‘Chiquito Barber Shop,’ a business in his name, and also sought leave to appear on behalf of respondent Gomez, indicating that Mr. Guzman, and not respondent Gomez, had actually signed what the Court had believed was an affidavit in support of respondents’ Motion Sequence No. 002. Mr. Guzman explained that he was the co-owner of the barbershop with respondent Gomez, although the lease to the premises had been executed solely by respondent Gomez. The Court deemed at that time that Mr. Guzman could appear solely on behalf of himself (a non-party), and Chiquito Barber Shop (named as “XYZ Corp.”), a business solely owned by Mr. Guzman, but not on behalf of respondent Gomez.2
At the April 28, 2022 conference on the motion, Mr. Guzman requested that the caption be amended to reflect the true name of the anonymous respondent. Petitioner agreed and the Court concurred. Accordingly, the application to amend the caption is granted to reflect the identification of the previously anonymous business as Chiquito Barber Shop. The Court also set a June 6, 2022 control date in this proceeding to permit respondent Gomez an opportunity to properly seek relief in his own name, but respondent Gomez never filed any papers seeking to challenge the Court's prior default finding or the outcome of the inquest.
The branch of petitioner's motion (Motion Seq. No. 001) seeking a judgment of possession and warrant of eviction against the signatory to the lease, Mr. Gomez, is granted on default. Petitioner demonstrated a prima facie entitlement to possession and warrant of eviction as against the leaseholder. Mr. Gomez failed to file any papers in opposition to petitioner's motion, and also failed to appear at either the April 6, 2022 or April 28, 2022 appearances. Further, the affidavit in support of what was initially presented as Mr. Gomez's motion to vacate the inquest judgement was in fact executed by Mr. Guzman and Mr. Guzman, a non-attorney, cannot represent Mr. Gomez, and cannot execute an affidavit in respondent Gomez's behalf.3 Additionally, the facts adduced at the hearing indicate ample evidence in support of the petition, and respondent Gomez's service-based defenses are not supported in the limited record before the Court.
The branch of petitioner's motion seeking a judgment of possession and warrant of eviction against the occupant business is more problematic and must be denied. For reasons that are not clear to the Court, petitioner failed to identify and name as a defendant the occupant business entity (Chiquito Barber Shop), and instead, named the occupant business as an anonymous “XYZ Corp,” even though that business had occupied the premises for many years and a quick Google search of the location at issue clearly indicates the name of the business, EG Chiquito Barber Shop. XYZ Corp., which is now known to be Chiquito Barber Shop, is a sole proprietorship owned solely by Mr. Guzman. As a sole proprietorship, which is essentially merely a “d/b/a” of the natural person, service is governed by CPLR 308, which requires service upon the person of the sole proprietor: Mr. Guzman. Steele v. Hempstead Pub Taxi, 305 AD2d 401, 401 (2d Dept. 2003), citing Kaczorowski v. Black & Adams, 293 AD2d 358 (1st Dept. 2002). CPLR 308 further requires that if substitute service is made upon a person of suitable age and discretion (such as purported agent of the sole proprietorship at the business location), service must also be made upon the sole proprietor by mail to the residence of said proprietor. Accepting the affidavit of service as true, service upon Chiquito Barber Shop was effectuated by way of substitute service upon a person of suitable age and discretion (identified as “Victor” (not Milton) Gomez, a purported “employee” of Chiquito Barber Shop), and then mailed to the residence of Milton Gomez. Petitioner did not mail any petition to Mr. Guzman's residence, and the subsequent mailing of the notice of petition and petition to Mr. Gomez at his residence, which is not the same residence as Mr. Guzman, does not constitute effective service pursuant to CPLR 308. Further, to the extent that petitioner is asserting the business entity is a partnership or other legal form, petitioner has the burden to prove such relationship or other legal form. See also, Velez v. Mitchell, 2021 NY Slip Op 30898(U), *5 (Sup. Ct., New York Co. 2021), citing F & K Supply Inc. v. Willowbrook Dev. Co., 304 AD2d 918, 920 (3d Dept. 2003) (party asserting existence of partnership bears the burden of proving partnership).
For these same reasons that Chiquito Barber Shop's motion to vacate the default and inquest judgment (Motion Sequence No. 002) must be granted for lack of jurisdiction, the Court must also dismiss the action as against this respondent pursuant to CPLR 3211(a)(8) and 5015(a)(4). This dismissal, however, is without prejudice to petitioner executing the warrant of eviction granted here against Mr. Gomez. This dismissal is also without prejudice to petitioner properly serving Chiquito Barber Shop (and/or Mr. Guzman) and obtaining jurisdiction over, and to seeking the same eviction relief against, that respondent.
As petitioner did not seek a monetary judgment in its motion papers for Motion Sequence No. 001, or at the inquest, repeatedly seeking only a judgment of possession and a warrant of eviction, and did not provide evidence at the inquest to establish the amount of any possible monetary judgment, the Court finds that petitioner abandoned any claim for a money judgment as against both respondents.
Accordingly, it is:
ORDERED that this proceeding is restored to the calendar; and it is further
ORDERED that the clerk is directed to amend the caption of this proceeding from J.A.M. Associates LLC v. Milton Gomez and XYZ Corp. to J.A.M. Associates LLC v. Milton Gomez and EG Chiquito Barber Shop, a/k/a Chiquito Barber Shop; and it is further
ORDERED that petitioner's motion for a default judgment as against Milton Gomez is granted for the limited purpose of nonmonetary relief only, and the clerk is directed to enter judgment of possession in this proceeding in favor of the petitioner and against respondent Milton Gomez; and it is further
ORDERED that a warrant of eviction shall issue forthwith against respondent Milton Gomez, the execution of which is stayed until July 15, 2022, and that the earliest date of execution pursuant to court order is July 15, 2022; and it is further
ORDERED that the Court's default judgment on liability and inquest marking as against respondent EG Chiquito Barber Shop, also known as Chiquito Barber Shop and formerly referred to in this proceeding as “XYZ Corp.” is vacated; and it is further
ORDERED that the petition is dismissed, without prejudice, as against respondent EG Chiquito Barber Shop, also known as Chiquito Barber Shop (formerly referred to as “XYZ Corp.”); and it is further
ORDERED that all other relief sought by the parties is denied.
This constitutes the Decision and Order of the Court.
1. To the extent the Court indicated at the inquest that it would likely grant petitioner's motion for an inquest judgment and a warrant of eviction by default against both respondents due to respondents’ non-appearance, the Court's April 13, 2022 stay halted proceedings in this matter and, in any event, the Court possesses inherent power to modify its decisions upon further consideration.
2. A check of the Bronx County Clerk's publicly-available online records, of which the Court takes judicial notice, indicates that Chiquito Barber Shop is organized as a sole proprietorship known as EG Chiquito Barber Shop and operated solely by Mr. Guzman.
3. Mr. Guzman freely admitted that he initialed the paragraphs of the affidavit form “MG” on his elderly father's (Mr. Gomez's) behalf. Although Mr. Guzman did not have authority to do this, the Court finds that this was done in good faith by Mr. Guzman.
Jeffrey S. Zellan, J.
Was this helpful?