940 v. Ander Lamothe, Respondents, (2026)

Papers Numbered

Notice of Motion; Affirmation in Support; Exhibits NYSCEF # 15-20

Opposition to Motion NYSCEF # 22

Reply Affirmation NYSCEF # 23

Upon the foregoing cited papers, the decision and order on this motion is as follows:

Petitioner 940 CORP. ("Petitioner") commenced the instant summary proceeding against Respondent ANTOINE GASSANT ("Gassant") alleging rental arrears of $1,866.80 through June 2022. Gassant filed a pro se Answer asserting the following defenses: improper service of the Notice of Petition and Petition, conditions in the unit, and a general denial. See: NYSCEF Doc. No. # 4.

(NAICA) then filed a Notice of Appearance on behalf of ANDER LAMONT ("Lamont" or "Respondent"), an unnamed occupant. See: NYSCEF Doc. No. # 9.

Thereafter, Lamont filed an Answer, asserting various defenses inter alia succession and breach of the warranty of habitability (the "Attorney Answer"). See: NYSCEF Doc. No. # 11.

On March 20, 2023, Petitioner and Respondent entered into a stipulation of settlement whereby, Ander Lamothe ("Lamothe")¹ is substituted in place of Gassant and all pleadings are amended to reflect the same; that Lamothe resides at 940 Grand Concourse, Apartment 1N, Bronx, New York 10451; that Lamothe owes $3,733.60 through March 2023 and is to pay the same plus April's rent by April 30, 2023; upon compliance with said payment, Petitioner was to provide a lease in Lamothe's name; the "rental amount to be determined upon [Lamothe] showing of succession rights to rent amount of $373.36 per month [is] the current rent;" and the parties agreed to access dates for conditions alleged in the apartment (the "Stipulation of Settlement"). See: NYSCEF Doc. No. # 13.

On or about August 25, 2026, a consent to change attorney was filed for Lamothe, whereby Urban Justice Center ("UJC") was substituted as attorneys for Lamothe.

Concomitant with the filing of the consent to change attorney, Respondent files this application seeking inter alia: to restore the matter to the Court's calendar, excusing Respondent's delay in complying with the Stipulation of Settlement, due to the law office failure of NAICA, compelling Petitioner to provide a rent ledger; and scheduling a hearing to determine the amount Respondent owes in rent since the Stipulation of Settlement ("Respondent's Motion").

In support of Respondent's Motion, Respondent alleges that Respondent applied for a One-Shot Deal in April of 2023 and repeatedly sought assistance from his attorneys to obtain a rent ledger and guidance to no avail. Respondent submits an affidavit which annexes a set of emails with his attorney from June of 2025.

Respondent alleges that Petitioner thereafter commenced a summary holdover proceeding in November 2023 under index number LT-346220-23/BX (the "Companion Holdover"). NAICA also represented Respondent in the Companion Holdover. Respondent alleges that he repeatedly sought guidance from NAICA in that matter, but no additional responses were provided. Respondent then retained UJC and filed the instant application.

Respondent argues that Petitioner's failure to provide a rent ledger frustrated Respondent's ability to comply with the Stipulation of Settlement, that CPLR 2004 and 2005 give the Court discretion to provide Respondent with more time to comply with the Stipulation of Settlement, and that if the Court should restore the matter, it should hold a hearing to determine the collection of rent that accrued after the Stipulation of Settlement.

In opposition, Petitioner alleges that Respondent has not complied with the Stipulation of Settlement nor paid monies since entering into the Stipulation of Settlement. Petitioner further alleges that following the death of Gassant, Petitioner commenced the Companion Holdover. Through the Companion Holdover the New York State Division of Housing and Community Renewal (the "DHCR") denied Respondent's succession claim. Thereafter, Respondent commenced an Article 78 proceeding which challenged the DHCR proceeding but was ultimately denied and dismissed.

Further, Petitioner moved for summary judgment in the Companion Holdover proceeding which was denied by Decision and Order dated August 13, 2024 (the "First Denial"). Petitioner again moved for summary judgment and was denied by Decision and Order dated February 24, 2026 (the "Second Denial"). Thereafter, the Petitioner appealed both denials.

By Decision and Order dated May 20, 2026, the Appellate Term reversed the Second Denial and dismissed the First Denial as academic. In pertinent part, the Appellate Term relied on the dismissal of Respondent's Article 78 proceeding and the failure to comply with the Stipulation of Settlement in its decision, noting that Respondent failed to raise any issues of fact, Respondent is not a tenant, and that to the extent that Respondent sought to rely on the Stipulation of Settlement to grant him the possessory interest of a tenant, he did not comply with the terms therein.

Petitioner's Opposition asserts that Respondent relies on law office failure of NAICA, but provides no affidavit or affirmation from NAICA as to the purported law office failure. Petitioner further alleges that Respondent's three-year delay demonstrates repeated neglect and not an excusable default. Petitioner sets forth that there is no basis to extend the time to allow Respondent to comply as the Stipulation of Settlement was based upon both payment and a showing of succession rights- and alleges Respondent neither paid nor established succession rights as confirmed by the DHCR Order. Petitioner also argues that the frustration theory fails as Respondent was provided a rent breakdown in an earlier stipulation and that a licensee cannot claim breaches of warranty of habitability. Finally, Petitioner asserts that the subject-application is barred by res judicata and collateral estoppel.

In Reply, Respondent argues that the Stipulation of Settlement only conditioned a lease upon payment of the arrears and not upon an additional showing of Respondent's entitlement to succession. Respondent further states that Respondent has personal knowledge of NAICA's law office failure as set forth in his accompanying affidavit and that the purported delay in action was due to lack of meaningful guidance from NAICA, not due to intent to abandon. Finally, Respondent alleges that the findings in the holdover proceeding and the judgment therein do not preclude Respondent from seeking the relief herein, as the Stipulation of Settlement conferred independent rights to a lease which are separatee from the licensee claims in the Companion Holdover.

Discussion/Conclusion

CPLR§ 2004 states that regardless of when the application for extension is made, "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown." Factors considered for good cause are the length of delay, the reason for the delay, whether there is prejudice to the opposing party, whether the moving party was in default before seeking extension, and presence or absence of an affidavit of merit (Tewari v. Tsoutsouras, 75 NY2d 1, 549 N.E.2d 1143, 550 N.Y.S.2d 572 [1989])"

Wilmington Tr., Nat'l Ass'n v. Onyenaobiya, No. 21509/2020E, 2023 NY Misc. LEXIS 20723, at *2 (Sup. Ct. Mar. 22, 2023).

"As to defendants' contention of law office failure, while a court may accept law office failure that is not willful or deliberate as a reasonable excuse, conclusory and unsubstantiated assertions of law office failure are insufficient. Such claim office failure should be supported by a detailed and credible explanation of the default (see Byers v. Winthrop Univ. Hosp., 100 AD3d 817, 955 N.Y.S.2d 105 [4th Dept 2012]). State Farm Mut. Ins. Co. v. Anikeyeva, 2013 NY Slip Op 33939(U), 7-8 (Sup. Ct.)

"Bare allegations of incompetence by counsel cannot serve as the basis to set aside a default." Liu v. Chang, 227 AD3d 410, 208 N.Y.S.3d 191 (App. Div. 1st. Dep't. 2024).

A claim that a party is unaware that they needed to appear for a hearing is not a reasonable excuse for the default. Yakov T v. Tracy S., 227 AD3d 633, 213 N.Y.S.3d 273 (App. Div. 1st. Dep't. 2024) ("The record demonstrates that she and her attorney were present in court when the dated was selected.")

In the instant proceeding, it is undisputed that Respondent neither paid the sum pursuant to the Stipulation of Settlement nor was granted succession rights by the DHCR.

Respondent's Motion squarely rests the delay in the instant application on the law office failure of NAICA, relying on conclusory allegations that NAICA failed to respond to Respondent in applying for assistance following the Stipulation of Settlement and annexing a set of emails from June of 2025- two (2) years after entering into the Stipulation of Settlement. Moreover, Respondent contends that the lack of a rent breakdown frustrated his attempts to get assistance, but details no other efforts to obtain assistance. The Stipulation of Settlement clearly set forth the amount owed and when it was due, and Respondent details no other attempts to pay the same.

Further, while Respondent's Motion rests squarely on the purported law office failure of NAICA, as an excuse for the delay herein, Respondent's Motion is silent with respect to the fact that UJC appeared as counsel for Respondent in the Companion Holdover on or about December 22, 2025. The additional eight-month delay in seeking the relief herein is unexplained despite there being extensive motion practice in the Companion Holdover as well as the Appellate Term.

Moreover, while seeking to restore the matter Respondent fails to assert the ability to pay the arrears set forth in the Stipulation of Settlement nor does Respondent dispute Petitioner's claim that no money has been paid since the Stipulation of Settlement. Instead, Respondent seeks a hearing to determine the current rent owed due to purported breaches of the warranty of habitability. Of note, the Stipulation of Settlement is devoid of any agreement as to an abatement or the relevancy of Respondent's claims as to warranty of habitability, but rather set forth a specific amount that the parties agreed needed to be paid in order for Respondent to be issued a lease. Again, it is undisputed that this amount was not paid.

Respondent presents no evidence that that sum was paid, that Respondent has the ability to pay same, or any good cause for the more than three (3) year delay in making the subject- application. As such, Respondent's Motion is denied in its entirety.

This constitutes the Decision/Order of the Court

Dated: October 23, 2026

Bronx, New York

Hon. Alberto Gonzalez

FOOTNOTES

1.   NAICA's Notice of Appearance is for Ander Lamont, but the stipulation of settlement between the parties sets forth the Respondent's name as Ander Lamothe.

Alberto Gonzalez, J.