Nicholas E. Brusco (NYLJ/Rick Kopstein)
The summary nonpayment petition requires an answer within five days of service, in default of which the statute provides for judgment in favor of the petitioner. The statute also provides that the judge has authority to stay issuance of the warrant but not more than 10 days from the date of service. RPAPL §732(3). It is self-evident that the statute is designed for the speedy recovery of rental real property. However, any landlord-tenant practitioner can attest that turn-around time for issuance of a default warrant is measured in weeks rather than days of service of the nonpayment petition.
The Civil Court administration has imposed its own internal requirements detracting from the summary nature of the nonpayment proceeding. This article considers the legitimacy of the April 16, 2010 Directive of the New York City Administrative Judge which directs the clerks to require an affidavit of default as a prerequisite to issuance of every default judgment in a summary nonpayment proceeding. Such directive is not authorized by the Court of Appeals. Further, a Jan. 8 New York Law Journal article that concludes the Court of Appeals requires an affidavit of default prior to entry of default judgment in a summary nonpayment proceeding is mistaken.1
Origins of Affidavit
In Brusco v. Braun, 84 N.Y.2d 674, 621 N.Y.S.2d 291 (1994), an Article 78 mandamus proceeding (in which the author represented the petitioner) the Appellate Division, First Department, stated that the affidavit requirement “has much to commend it,” 199 A.D.2d 27 at 32, In fact, upon the Appellate Division’s Dec. 7, 1993, decision, the New York County Civil Court implemented a procedure for submission of an affidavit of default in lieu of the inquest prior to entry of every default judgment.2 However, the policy was short-lived. The Article 78 respondent-judge appealed, and 12 months later the Court of Appeals posited and answered the question of whether additional proofs or an inquest is within a judge’s discretion, as follows :
Thus, the dispositive question on this appeal is whether respondent Braun retains any discretion to withhold a judgment pursuant to RPAPL 732 (3) when a petition proper in form and substance demonstrates grounds for relief and the supporting papers establish proper service on the tenant. We hold that he does not.
Brusco v. Braun, 84 N.Y.2d at 679, 621 N.Y.S.2d at 293 (1994).
In reading the plain language of RPAPL §732(3), the Court of Appeals found that only two factual predicates need be determined by the court: whether the nonpayment petition was served and whether the tenant has failed to answer within the five-day statutory period. Both precedents having been satisfied, the respondent-judge had no further discretion to add any additional requirements.
The statute not only commands an action; it dictates the result. Where, as here, petitioner has proven service of the notice of petition and petition and the tenant has failed to appear, respondent has no discretion; judgment in favor of petitioner must be granted and mandamus lies to compel respondent to do that which the statute requires.
Brusco v. Braun, 84 N.Y.2d at 680, 621 N.Y.S.2d at 293 (1994).
The Court of Appeals mandated the respondent-judge to enter the default judgment without further proceedings pursuant to the plain language of RPAPL §732(3) and the respondent-judge complied. Upon the Dec. 22, 1994, decision of the Court of Appeals, the New York County Civil Court immediately ceased its requirement for submission of an affidavit of default by order of the Administrative Chief Judge.3 The Jan. 8, 2014, article by Housing Court Judge Susan Avery relies upon and cites to Appellate Division language in Brusco v. Braun, rather than the controlling Court of Appeals decision. This is the same faulted path followed by the Appellate Term, Second Department, in Sella Properties v. DeLeon, 25 Misc.3d 85, 890 N.Y.S.2d 254 (2009), which is the authority relied upon by Judge Fern Fisher, deputy chief administrative judge in her April 16, 2010 Directive requiring affidavits of default.4 As further support for an affidavit requirement, the Second Department in Sella Properties cites to a Kings County case5 where the court applied CPLR 3215 to require an affidavit of default.
Applicability of CPLR 3215 was the critical question in Brusco. If it were applicable, the court had the authority to require sworn testimony either in writing or before the court at an inquest prior to issuing the default judgment, as argued by the respondent-judge. The Court of Appeals expressly rejected the argument: “The CPLR provision does not apply because it has been abrogated by the more specific RPAPL 732.” 84 N.Y.2d at 681. Seizing upon the erroneous Second Department decision in Sella Properties, the current administrative judge overruled the 1995 administrative judge (without mention) in defiance of the Court of Appeals mandate without any explanation as to why the systematic requirement of default affidavits is necessary or even desirable.
The decision in Park Holding Co. v. Arber, 145 Misc.2d 39, 54 N.Y.S.2d 1000, (N.Y. Sup. Ct. 1989), cited in the Jan. 8 NYLJ article, conjures up this author’s memories of the nonpayment inquest. Prior to 1993, it was the practice of some New York County Civil Court judges to conduct inquests upon every request for default judgment in nonpayment proceedings. The practice had been initiated some years earlier by at least one Civil Court Judge even though RPAPL §741 plainly provides that the nonpayment petition may be verified by the petitioner’s attorney and same “is not an appropriate basis upon which to deny landlord a final judgment upon tenant’s default.” Central Park Gardens Inc. v. Ramos, NYLJ, April 9, 1984, p. 12, col. 6 (A.T. 1st Dept.).
The inquest procedure was spawned of Central Park Gardens and those other Appellate Term decisions upon CPLR §5704(b) motions brought by nonpayment petitioners whose default applications were repeatedly and wrongfully denied by the same few Civil Court judges for the same invalid reason: the sufficiency of verification solely by the petitioner’s attorney.
Defiantly,6 the same few judges would now take oral testimony at an inquest where they could delve into other areas and find new reasons7 for withholding judgment and, at a minimum, delay entry of the default judgment for weeks or months. The inquest judges borrowed provisions of CPLR 3215, titled “Default Judgments,” to graft an unauthorized requirement into the summary proceeding for a sworn statement or to make an “assessment” before the court. When challenged in Park Holding, the New York County Supreme Court erroneously agreed that CPLR 3215(b) allowed for the assessment or inquest. Park Holding was never appealed and the inquest judges righteously held their banner high. Thus, the special statute specifically designed for the speedy recovery of rental real property for nonpayment of rent was abrogated.
Process Gone Awry
When this author answered “Application” at the call of the “default calendar” on April 13, 1992, in the Brusco nonpayment proceeding and requested a default judgment pursuant to RPAPL §732(3) without inquest, the Civil Court Judge (later becoming the Article 78 respondent-judge) replied that there was authority for the inquest citing Park Holding, as did the Supreme Court, New York County in denying the resulting Article 78 mandamus petition.8
It was common knowledge that an uncontested eviction proceeding took months. Represented tenants could be quite correctly counseled to ignore a nonpayment petition and appear weeks later at the “default calendar” or even thereafter to submit an answer and have the case assigned to a trial part weeks or months after expiration of the five-day answer period required by RPAPL §732(1), without any questions asked. By doing nothing the nonpaying, defaulting tenant had leveraged his position with further accrued unpaid rent. The Appellate Division, First Department, noted this fact in finding that the inquest procedure “evaded the time limits imposed by RPAPL §732, allowing the defaulting tenant to forestall determination of the proceeding considerably longer than if she had appeared in answer to the petition.” Brusco v. Braun, 199 A.D.2d at 33.
Worse than the delay, the unauthorized procedure threw open the door for individual judges to add their own additional unauthorized requirements, procedural and evidentiary, leading to further withholding of the petitioner’s substantive right to the default judgment and warrant. Even after the Court of Appeals decision in Brusco, some judges continued their practice of requiring that the judgment be served upon the defaulting tenant prior to issuance or execution of the warrant of eviction. This lingering unauthorized requirement was stricken in Mennella v. Lopez Torres, 91 N.Y.2d 474, 672 N.Y.S.2d 834 (1998) (Ciparick, J. concurring), where the Court of Appeals again mandated the Civil Court to do that which the statute commands absent identification of a reason justifying deviation in the circumstances of the particular case. Mennella, 91 N.Y.2d at 479. The respondent-judge in Mennella was compelled “to issue a warrant of eviction…without further proceedings or the submission of any additional documents.” 229 A.D.2d at 158.
2010 Directive and Beyond
The 2010 Directive of the Administrative Judge purports to direct all judges to require a “default affidavit” as a prerequisite to the default judgment in every case. This is clearly erroneous as the Court of Appeals has mandated the individual respondent-judge to enter the default judgment as follows:
Inasmuch as there was no question regarding the sufficiency of the petition or the service and the tenant failed to answer, respondent was required by RPAPL 732(3) to render judgment in favor of petitioner.
Brusco v. Braun, 84 N.Y.2d at 681, 621 N.Y.S.2d at 294.
Thus, the administrative judge purports to direct each individual Civil Court Judge to ignore the statute and abdicate his judicial responsibility to apply the Court of Appeals mandate in every default where the petition is sufficient and service is proper.
The Jan. 8 article is an invitation to judges to embrace the “default affidavit” as a systematic “requirement” raising high the new colors under the banner of Sella Properties. It is an invitation to those judges so inclined to analyze those affidavits and add further unauthorized obstacles to the default judgment. It is an invitation to the landlord bar to be “good” practitioners by submitting tidy papers to satisfy these whims and whatever others may be forthcoming from other individual judges. It is an invitation to the tenant bar to scrutinize those papers after submission to find flaw upon which to amass yet further delay.
This author extends a different invitation: to apply the statute as mandated by the New York Court of Appeals.
Nicholas E. Brusco is a sole practitioner in Manhattan who represents building owners. He represented the petitioner in ‘Brusco v. Braun,’ which is discussed in this article.
1. S. Avery, “Affidavits in Support of Defaults in Nonpayment Eviction Proceedings,” NYLJ, Jan. 8, 2014, p. 4.
2. Memorandum of Charles E. Ramos, Judge in Charge, New York County, dated Dec. 16, 1993. This Legal and Statutory Memorandum (LSM) can be found on www.courts.state.ny.us/courts/nyc/civil/directives.shtml under LSM 130.
3. See Memorandum of Jacqueline Silberman, Administrative Chief Judge of the Civil Court, New York County dated Jan. 10, 1995 with effective date Jan. 10, 1995. This LSM can also be found on www.courts.state.ny.us/courts/nyc/civil/directives.shtml under LSM 130.
4. This Civil Court Directive can be found on www.courts.state.ny.us/courts/nyc/civil/directives.shtml under DRP-191-A.
5. Fairfield Presidential Assoc. v. Samuel, 4 Misc.3d 1026(A), 798 N.Y.S.2d 344 (Civ. Ct., Kings Co. 2004).
6. MFY Legal Services, Inc. brought an unsuccessful Article 78 prohibition proceeding against the Appellate Term. Matter of MFY Legal Services, Inc. v. Dudley, 67 N.Y.2d 706, 499 N.Y.S.2d 930 (1986).
7. In her affidavit in opposition to the Article 78 mandamus petition in Brusco v. Braun, Jacqueline W. Silbermann, Administrative Judge of the New York City Civil Court, argued that the inquest was necessary in “determining that service of the notice of petition and petition were properly made,” a favored basis asserted by the inquest judges. However, at oral argument before the Court of Appeals it was revealed that the process server was not called at inquest and the court makes its determination as to process service by examining the process server’s affidavit of service. The argument was simply a red herring.
8. Brusco v. Braun, Index No. 11452 / 1992, N.Y. Co. Sup. Ct., June 12, 1992 (McCooe, J.) (not reported).