DHALIWAL v. 234 204 NY LLC (2026)

Recitation, as required by CPLR R 2219(a), of the papers considered in the review of Petitioner's Order to Show Cause (m seq #1) for an order vacating the dismissal of this proceeding on default and Respondent's Cross-Motion (m seq #2) to dismiss or to join Jasvir Dhaliwal as a necessary party:

Papers Doc #

Order to Show Cause, Petitioner's Affirmation 1, 2

Notice of Cross-Motion, Attorney's Affirmation, Agent's Affirmation, Exhibits A-C 3, 4, 5, 6, 7, 8

Attorney's Affirmation in Opposition to Cross-Motion 9

Attorney's Reply Affirmation on Cross-Motion 10

Attorney's Sur-Reply Affirmation on Cross-Motion 11

For the reasons that follow, Petitioner's order to show cause (OSC) to vacate the order of dismissal (m seq #1) is granted, Respondent's cross-motion to dismiss or for joinder (m seq #2) is denied, and this proceeding is restored to this Court's calendar for trial on September 25, 2026 at 9:30 a.m.¹

PROCEDURAL HISTORY & BACKGROUND

This is an illegal lockout proceeding commenced by Mansukhir Dhaliwal pro se (Petitioner) by OSC and Verified Petition filed on February 9, 2026 alleging illegal lockout by 234 204 NY LLC (Respondent) from Apartment 3 at 234 East 204th Street in the Bronx (the apartment) on November 14, 2025. On the return date, February 23, 2026, the courts in New York City were closed due to a snowstorm. Court staff's attempts thereafter to contact Petitioner by email and telephone to re-calendar the case were unsuccessful and the case was dismissed, without prejudice, by Decision/Order dated March 10, 2026.

On April 6, 2026 Petitioner filed an OSC seeking to vacate the dismissal, supported by his affirmation asserting that the court was closed on February 23, 2026 due to a snowstorm and his illegal lockout claim had not been resolved. On the return date of the OSC, Petitioner appeared pro se, Respondent appeared by counsel, and the case was adjourned to May 20 on consent.

In the interim, on April 28 Respondent by counsel filed a cross-motion to dismiss pursuant to CPLR R 3211(a)(7) for failure to state a cause of action or, in the alternative, to join Jasvir Dhaliwal as a necessary party pursuant to CPLR §§ 406 and 1001. In supporting affirmations of its attorney and its agent Rajive Maret Respondent asserts that Jasvir Dhaliwal was the former tenant of record, whose only written lease was for the period of January 1, 2013 through December 31, 2013; although Petitioner's name appears on the first page of the lease, only Jasvir Dhaliwal signed that lease; Jasvir Dhaliwal and the tenant of Apartment 2 in the same building, Mohinder Singh, commenced an HP/harassment proceeding against Respondent, LT-003543-24/BX; Respondent and Jasvir Dhaliwal settled that proceeding on September 12, 2025 in an agreement providing that Respondent would relocate Jasvir Dhaliwal to another apartment on Jerome Avenue and pay him $90,000 and Jasvir Dhaliwal would vacate the apartment by September 30, 2025 and “leave the subject premises broom-swept and free of all occupants and belongings.” Mr. Maret and Respondent's attorney further assert that neither Jasvir Dhaliwal nor his attorney ever mentioned that Petitioner was also residing in the apartment; Jasvir Dhaliwal tendered the keys to Mr. Maret; and Mr. Maret personally inspected the apartment on September 30, 2025, “confirmed, with Jasvir Dhaliwal, that there were no other occupants in the subject premises and all personal belongings were removed”, and authorized release of the $90,000 payment to Jasvir Dhaliwal's attorney. Maret Affirmation at ¶¶ 17-21. Copies of the 2013 lease and the September 12, 2025 settlement agreement are attached to the motion papers.

Respondent's attorney argues that dismissal for failure to state a cause of action, pursuant to CPLR R 3211(a)(7), is warranted as “Petitioner has failed to prove that he was residing in the subject premises on September 12, 2025 or that he has any legal right to possession to the subject premises whatsoever.” Attorney's Affirmation at ¶¶ 26, 29, 35. In the alternative, Respondent's attorney argues that if the court does not dismiss the proceeding and allows it to proceed to trial, Jasvir Dhaliwal must be joined as a necessary party under CPLR §§ 401 and 1001(a) upon the ground that his absence will prevent complete relief from being accorded between the parties.

On May 20 Petitioner's OSC and Respondent's cross-motion were adjourned to June 11 at the request of Petitioner, as he was seeking to retain counsel. On June 11 Petitioner appeared by counsel, who filed his own affirmation and Petitioner's affidavit in opposition to Respondent's cross-motion. In his affidavit, Petitioner asserts that he had resided with his father Jasvir Dhaliwal in the apartment since January 1, 2013 and Respondent was aware of his lawful occupancy as his name is on the lease, both his name and his father's name appear on Respondent's billing statements (rent bill dated May 22, 2025 attached as Exhibit 1), a “Notice of Inspection” from the New York State Division of Housing and Community Renewal (DHCR) dated January 14, 2026 regarding Docket # MV 620234 S is addressed to Petitioner and Respondent (Exhibit 2), and Respondent named him along with his father in a “Ninety (90) Day Notice of Termination Based Upon Landlord's Intention Not to Renew Lease” dated June 9, 2025 (Exhibit 6). Petitioner further asserts that at the time his father and Respondent negotiated their settlement of LT-003543-24/BX, he had just been notified that he had been accepted to the New York City Department of Sanitation's academy for the Enforcement Division's Sanitation Police (Exhibit 3), commencing September 22, 2025 at a training facility in Brooklyn; due to the distance between the apartment and the academy he temporarily resided with his girlfriend in Brooklyn “for convenience and closer location to the academy”, Petitioner's Affidavit at ¶ 13; he did not surrender his residency of the apartment and neither his father nor Mohinder Singh (the other Petitioner in LT-003543-24/BX) had authority to negotiate on his behalf or represent to Respondent that he had vacated the premises; his father has a “limited command and knowledge of the English language”, Petitioner's Affidavit at ¶ 15; and his property that he had left at the apartment had been removed without his knowledge or consent.

Petitioner's attorney argues that Respondent's cross-motion to dismiss should be denied under the CPLR R 3211(a) standard that the Court must accept the facts as alleged to be true, accord Petitioner every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory. Petitioner's attorney further argues that the Petition, as supplemented by Petitioner's affidavit, asserts facts which state a cause of action for illegal lockout under RPAPL §§ 713(10) and 768; Respondent's motion is based on conclusory allegations which are belied by the lease that lists Petitioner's name at the top and “dispositively demonstrates lawful occupancy, at a minimum”, Attorney's Affirmation in Opposition at ¶ 5, as well as the other documents Petitioner includes with his opposition papers that demonstrate Respondent's knowledge of Petitioner's occupancy of the apartment; the burden of proof to establish abandonment is on Respondent; and Respondent asserts no facts to demonstrate that Petitioner “acted in any way which would give rise to a reasonable belief that Jasvir Dhaliwal possessed agency or authority to act on his behalf,” Attorney's Affirmation in Opposition at ¶ 26.

Petitioner's OSC and Respondent's cross-motion were adjourned to August 5, 2026 by two-attorney stipulation, with a schedule for further briefing. In a Reply Affirmation, Respondent's attorney argues that the proceeding should be dismissed as Petitioner failed to establish that he is entitled to the protections of RPAPL § 768 or New York City Administrative Code § 521 because he was not the tenant of record - he did not sign the 2013 lease — and has not shown that he had been residing in the apartment for thirty consecutive days or longer. Respondent's attorney reiterates the history of the HP/harassment proceeding under LT-003543-24/BX, during which Petitioner never appeared and was never mentioned by Jasvir Dhaliwal, who tendered the keys after an inspection of the apartment by Respondent's agent, leaving Respondent with no obligation to obtain a surrender or secure a warrant of eviction against Petitioner. Further, Respondent argues that the billing statement, the DHCR notice and the 90-day termination notice do not prove that Petitioner was actually residing in the apartment on September 30, 2025 when the locks were changed pursuant to the settlement agreement in LT-003543-24/BX; the email regarding the Department of Sanitation academy that Petitioner refers to as an acceptance letter is not addressed to him and does not mention him by name; Petitioner's statement that he temporarily resided with his girlfriend in Brooklyn is not supported by documentary evidence; and even if he had been a lawful occupant, Petitioner abandoned the apartment: he had not occupied it for almost two years prior to the commencement of this case and did not commence this proceeding until more than four months after the locks were changed.

In a Sur-Reply Affirmation Petitioner's attorney argues that Respondent continues to present conclusory arguments that do not warrant dismissal of this proceeding.

DISCUSSION

As an initial matter, Petitioner's OSC to vacate the dismissal is granted. To prevail on a motion to vacate a default under CPLR R 5015(a)(1), the movant must make a showing of a reasonable excuse for the default and a meritorious claim or defense. Adefioye v Volunteers of Am (222 AD2d 246, 634 NYS2d 696 [1st Dep't 1995]). Relief from a default rests within the sound discretion of the motion court, Frenchy's Bar & Grill v United Int'l Ins Co (251 AD2d 177, 675 NYS2d 31 [1st Dep't 1998]), and courts have the inherent power, in the interest of justice, to vacate a prior order, Alvarez v Fiat Realty Corp (157 AD2d 456, 550 NYS2d 825 [1st Dep't 1990]).

Here, there was a snowstorm on the initial return date, which constitutes a reasonable excuse for Petitioner's failure to appear in court. As discussed below in the context of Respondent's cross-motion to dismiss for failure to state a cause of action, Petitioner's claim of illegal lockout in violation of RPAPL § 713(10) - as plead in his original petition filed without counsel on the court's forms in February 2026 and supplemented by the papers filed in June 2026 after he retained counsel - has merit.

Further, there is a strong judicial preference for cases to be heard on their merits, Petrovic v Lee (36 Misc 3d 145[A], 959 NYS2d 91 [App Term 1st Dep't 2012]), and based on the facts and circumstances presented it is in the interests of justice to vacate the dismissal order entered on Petitioner's default in appearing on February 23, 2026.

Turning to Respondent's cross-motion, on a motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action, the pleading is to be afforded a liberal construction, CPLR § 3026, its allegations are accepted as true, the plaintiff (or petitioner) is accorded the benefit of every possible favorable inference, 511 W 232nd Owners Corp v Jennifer Realty Co (98 NY2d 144, 152, 746 NYS2d 131, 134, 773 NE2d 496, 499 [2002]), and the question is whether the pleading alleges facts which fit within any “cognizable legal theory,” Leon v Martinez (84 NY2d 83, 614 NYS2d 972 [1984]). “[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Guggenheimer v Ginzburg (43 NY2d 268, 275, 401 NYS2d 182, 185, 372 NE2d 17, 20 [1977]), quoted in Polonetsky v Better Homes Depot, Inc (97 NY2d 46, 54, 735 NYS2d 479, 483, 760 NE2d 1274, 1278 [2001]); M & E 73-75, LLC v 57 Fusion LLC (189 AD3d 1, 5, 128 NYS3d 200, 204 [1st Dep't 2020]).

Respondent supports its motion with copies of its lease with Petitioner's father, Jasvir Dhaliwal — which, while not signed by Petitioner, does list his name on page one — and a copy of its agreement with Petitioner's father settling LT-003543-24/BX, an HP/harassment proceeding in which Petitioner was not a party. Under CPLR R 3211(a), as explained by the Appellate Division, First Department,

Dismissal is warranted only if the documentary evidence submitted “utterly refutes plaintiff's factual allegations” (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 774 NE2d 1190, 746 NYS2d 858 [2002]; see Greenapple v Capital One, N.A., 92 AD3d 548, 550, 939 NYS2d 351 [1st Dept 2012]), and “conclusively establishes a defense to the asserted claims as a matter of law” (Weil, Gotshal, 10 AD3d at 270-271 [internal quotation marks omitted]).

Amsterdam Hosp Grp, LLC v Marshall-Alan Assocs, Inc (120 AD3d 431, 433, 992 NYS2d 2, 4-5 [1st Dep't 2014]).

Here, summary resolution of this illegal lockout proceeding is not warranted. The documents Respondent submits with its motion do not utterly refute Petitioner's claim of illegal lockout — in fact, the lease which includes Petitioner's name on page one establishes, at a minimum, that Respondent knew of Petitioner's existence - especially in light of the documents Petitioner submitted in opposition; rather, these documents raise questions of fact which can only be determined at trial. Dismissing this proceeding on this record at this juncture likely would be reversible error. See Goncalves v Soho Vill Realty, Inc (47 Misc 3d 76, 77, 9 NYS3d 522, 523 [App Term 1st Dep't 2015]).

Respondent's motion to join Jasvir Dhaliwal as a party also is denied. CPLR § 1001(a) requires joinder of parties where necessary to accord complete relief between the parties to the action or where they might be inequitably affected by a judgment. Complete relief between Petitioner and Respondent under RPAPL § 713(10) can be afforded without Jasvir Dhaliwal being added as a party to this illegal lockout proceeding. And while Jasvir Dhaliwal might be affected by a judgment in Petitioner's favor in this proceeding, he would not be “inequitably affected”; the rights and remedies as between Jasvir Dhaliwal and Respondent lie within the terms of their settlement agreement in LT-003543-24/BX, which includes an elaborate default provision at paragraph six thereof.

CONCLUSION

Based on the foregoing, it is hereby ORDERED that Petitioner's Order to Show Cause is granted; the order of dismissal is vacated; Respondent's cross-motion to dismiss or, in the alternative, to join Jasvir Dhaliwal as a party, is denied; by September 4, 2026 Respondent shall serve and file via email  ² its Answer to the Petition; and the case is restored to the calendar for trial on September 25, 2026 at 9:30 a.m.

This constitutes the Court's Decision and Order, which is being emailed to counsel for both parties.³

FOOTNOTES

1.   This is the date requested and agreed upon by counsel on August 5, 2026, when the OSC and cross-motion were argued and marked submitted.

2.   The Court's email address is: BX-HOUSING-528B@nycourts.gov; Petitioner's attorney's email address is: richard@zarcolawgroup.com.

3.   This case is not on NYSCEF.

Diane E Lutwak, J.