In a summary nonpayment proceeding commenced in Housing Court, a petitioner seeking entry of judgment, based upon a tenant’s failure to appear or answer, must submit a proper affidavit attesting to the facts of the default, Brusco v. Braun, 199 AD2d 27 (1st Dept. 1993) aff’d 84 NY2d 674 (1994). Contrary to this requirement, it has been this author’s experience that attorneys for petitioners routinely submit and resubmit, insufficient affidavits, resulting in denials of such applications, wasted resources and delays in processing cases. As an affidavit which fails to contain proof in evidentiary form is prima facie insufficient to support the entry of a default judgment, State v. Williams, 73 AD3d 1401 (3d Dept. 2010), it is crucial that a petitioner seeking the entry of a default judgment so that a default warrant of eviction may issue, support its application upon a proper affidavit of merit.
Entry of default judgments are generally governed by Civil Practice Law and Rules (CPLR) §3215(f) (Siegel, New York Practice §295). However, CPLR §3215(f) is inconsistent with Real Property Actions and Procedure Law (RPAPL) §732(3) which provides that in nonpayment summary proceedings “[i]f the respondent fails to answer within five days from the date of service…of the notice of petition and petition, the judge shall render judgment in favor of the petitioner…” RPAPL §732(3) controls in nonpayment summary proceedings, as it abrogates the less “specific statute (CPLR §101 [CPLR 'shall govern…except where the procedure is regulated by inconsistent statute']; McKinney’s Cons Laws of NY, Statutes §397 ‘A special statute…in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies’” Brusco, 84 NY2d 674 (1994). Therefore “a judge has no discretion to withhold entry of a default judgment pursuant to RPAPL §732(3) when a petition, proper in form and substance, demonstrates grounds for relief…” Brusco, at 676.
