Silverstein v. Huebner

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Pages numbered Notice of Motion and Supplemental Affidavit and Affirmation Annexed                1, 2, 3 Addendum to Notice to Restore and Supplemental Affirmation and Affidavit Annexed     4, 5, 6 Notice of Cross-Motion and Supplemental Affirmation and Affidavits Annexed                      7, 8, 9 Affirmation and Affidavit In Opposition and Reply                   10, 11 Upon the foregoing papers, the Decision and Order on this motion are as follows: Yehuda Silverstein, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Levi Huebner (“Respondent”), a respondent in this proceeding, and Elie Poltorak (“Co-Respondent”), another respondent in this proceeding, seeking possession of the subject premises. Petitioner obtained a judgment against Co-Respondent on inquest and a warrant issued. Petitioner now moves for leave to execute on the warrant. Co-Respondent cross-moves to remove the judgment obtained against him, to vacate a stipulation that Respondent entered into with Petitioner, and for leave to interpose an answer. The Court consolidates these motions for resolution herein. This proceeding was first noticed to be heard on December 19, 2018. Respondent, who is an attorney, initially represented Co-Respondent in this matter and moved for relief, including but not limited to dismissal on the basis of lack of personal jurisdiction, supported by an affirmation of Co-Respondent (who is also an admitted attorney), dated January 24, 2019. By an order dated April 5, 2019, the Court denied so much of the motion as sought dismissal and directed service of an answer within thirty days. Petitioner effectuated service of this order on Co-Respondent with notice of entry by regular mail on April 11, 2019. Co-Respondent never served an answer. The Court also granted Respondent’s separate motion to be relieved as Co-Respondent’s attorney and, finding that Co-Respondent was not a necessary party, transferred this case to the trial part by an order dated May 16, 2019. After a substantial amount of motion practice and adjournments, Respondent entered into a stipulation with Petitioner on March 4, 2020 (“the Stipulation”). Co-Respondent did not appear in Court that day and, of course, did not sign the Stipulation. The Stipulation conferred a judgment of possession upon Petitioner as against Respondent, provided for a forthwith issuance of a warrant of eviction, and stayed execution thereof through March 31, 2020. The Stipulation stated that Co-Respondent remained in possession of the subject premises. The Court held an inquest on March 4, 2020 and then entered a judgment of possession against Co-Respondent (“the Judgment”), with the same timeframe regarding the issuance and execution of the warrant. The warrant issued on March 16, 2020. The global COVID-19 pandemic ensued, with its attendant stays of eviction. In 2020, the Court promulgated a directive, DRP-213, that required landlords seeking an eviction to move for relief to do so.¹ Petitioner served his motion for this relief on September 30, 2020, which was subsequently adjourned. On December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, L. 2020, c. 381 (“CEEFPA”).² Co-Respondent filed with the Court a hardship declaration, defined in §4 of CEEFPA, which had the effect of staying execution of the warrant of eviction through August 31, 2021 (“the expiration of the statutory stay”). CEEFPA, Part A, §8. Co-Respondent then moved to remove the Judgment pursuant to Part A, §7 of CEEFPA by a motion e-filed on June 3, 2021. If the Judgment was removed, the warrant would by necessity have to be vacated as well,³ and the hardship declaration would have the effect of staying all further proceedings through the expiration of the statutory stay. CEEFPA, Part A §6. CEEFPA Part A, §7, entitled “Default Judgments,” requires a landlord seeking an “enforcement of an eviction pursuant to a default judgment” to first move for such relief after December 28, 2020, upon which motion the Court shall hold a hearing. If, as in this matter, a default judgment had been awarded prior to December 28, 2020, “the default judgment shall be removed upon the respondent’s written…request to the court either before or during such hearing and an order to show cause to vacate the default judgment shall not be required.” The statute’s language raises the question of whether a landlord must specifically move for relief pursuant to CEEFPA Part A, §7 in order to entitle a tenant to a removal of a judgment. The word “such” when used in a statute generally refers to the last antecedent in the context. American Smelting & Refining Co. v. Stettenheim, 177 A.D. 392, 396 (1st Dept. 1917), In re Estate of Johnson, 18 Misc 3d 898, 900 (Sur. Ct. Kings Co. 2008), Kruger v. Page Management Co., 105 Misc 2d 14, 31 (S. Ct. NY Co.1980), appeal dismissed, 80 AD2d 525 (1st Dept. 1981). Accordingly, the language providing that a default judgment shall be removed upon a respondent’s request made before or during “such” a hearing refers to the hearing on a landlord’s motion, militating in favor of the proposition that a statutory removal of a default judgment requires a landlord’s motion pursuant to CEEFPA, Part A, §7. Stuyvesant Manor, Inc. v. Zayas, 2021 NY Slip Op. 50607(U), 3 (Civ. Ct. Kings Co.)(a landlord’s DRP-213 motion filed prior to December 28, 2020, as in this matter, does not render a respondent in a summary proceeding eligible for a removal of a judgment). See Also 2115 Wash. Realty v. Braxton, 2021 NY Slip Op. 21183,