Mazelier v. 634 West 135, LLC

Sullivan and Sweeny, JJ.,

dissent in a memorandum by Sullivan, J., as follows: In my view, there is no basis for granting defendant’s motion to vacate the judgment. Accordingly, I dissent. In June 2001, plaintiff, the tenant of a rent-stabilized apartment, filed a rent overcharge complaint with the Division of Housing and Community Renewal (DHCR). In the space for [o]wner/[a]gent” plaintiff named defendant 634 West 135, LLC (634), with an address as 95 Delancey Street, 2nd Floor, New York, NY 10002. 634, which does not deny that it was served with the DHCR complaint, failed to respond. On March 22, 2002, the DHCR issued an order finding rent overcharge and directed the owner to roll back the rent to the legal regulated rent and refund the tenant the sum of $46,036.40, which included treble damages and interest. Equity Management and its address—also at 95 Delancey Street—were written in the space provided for “Mailing Address of Owner.” The order also included a notation that it was “cc’d” to 634, which does not deny receipt. The order contained a statement advising the owner of its right to file a petition for administrative review (PAR) and of the tenant’s right to file and enforce the order as a judgment in the event that such a petition was not filed.

On October 18, 2002, DHCR certified that more than 35 days had expired from the issuance of the overcharge order and that DHCR had not been served with a PAR. On July 3, 2003, plaintiff sought to enter judgment against the “owner(s) landlord,” which he identified as Equity Management, for the amount directed to be paid, and judgment was so entered on that date.*

Equity Management moved to vacate the judgment, asserting, in the affidavit of Baruch Singer, a principal of Equity, that “no notice of this proceeding or of the DHCR action which underlies it has been given” and that Equity Management has no interest in the premises. The motion was granted without opposition. Thereafter, plaintiff moved for an order directing the entry of *365judgment against 634 and to amend the caption to name 634 as defendant in place of Equity Management. The motion was served on both Equity Management and 634. Both Equity Management and 634 defaulted and in November 2003 the motion was granted. Judgment against 634 in the amount of $53,085.64 was entered on December 3, 2003.

In January 2004, 634 moved pursuant to CPLR 5015 to vacate the judgment. The supporting affidavit of Baruch Singer, a managing member of 634 who, as noted, was also a principal of Equity, stated, as an excuse for the default, that he “was under the mistaken impression that this motion would result in a complaint being served, an answer being served, discovery being conducted, and then possibly a trial . . . [and he therefore] had no opposition to this motion.” In addition, he stated that the DHCR decision was not against 634, noting that the “order does not speak a single word of this alleged owner,” and that “the decision and order which resulted in this [¡judgment was not served upon me or my counsel.” Finding that 634 had failed to set forth either a reasonable excuse for its default or a meritorious defense, Supreme Court denied the motion. The order should be affirmed.

At the outset, it is clear that 634 was a party to the DHCR proceeding, indeed it was the only party named in the complaint. The record absence of proof of service of the DHCR complaint on 634 is of no significance since 634 has never denied that it was served with the complaint. The statement by Baruch Singer, a principal of both Equity Management and 634, in support of 634’s motion to vacate its default, that “the decision and order which resulted in this [j]udgment was not served upon me or my counsel” is, on its face, neither a denial that 634 was served with the DHCR complaint nor a denial of service of the DHCR order on 634.

To prevail on a motion to vacate a default, as numerous cases have held, a party must show a reasonable excuse for the default and a meritorious defense (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Achampong v Weigelt, 240 AD2d 247, 248 [1997]; see also CPLR 5015 [a] [1]). 634 has failed to meet this burden. Singer’s explanation that he thought there would be further proceedings, initiated by a complaint and ending with a trial, is patently unacceptable. Not only did plaintiffs motion seeking judgment against 634 plainly request the entry of judgment, the supporting affirmation explicitly noted that DHCR had issued a certification that authorized plaintiff to enter judgment against 634 “immediately and without further notice.” Nor does 634 demonstrate a *366meritorious defense. While 634 asserted that the judgment was in error since the “decision is not as against 634 . . . and [t]he order does not speak a single word of this alleged owner,” the proceedings before DHCR leave no doubt as to the identity of the owner. Moreover, Baruch Singer’s statement that “the decision and order which resulted in this [¡Judgment was not served upon me or my counsel” is too vague, ambiguous and lacking in specificity to constitute a denial of service of the overcharge order on 634.

In concluding that judgment could not be entered against 634, the majority reasons that once the judgment against Equity Management was vacated “there was no longer a matter or judgment before the court to amend.” This ignores CPLR 1003, which provides that “[pjarties may be added at any stage of [an] action by leave of court.” In this regard, it is noted that 634 did not oppose plaintiffs motion to amend the caption to include 634 as a party. Indeed, as can be seen from Singer’s statement in support of 634’s motion to vacate the default, 634 conceded the court’s power to proceed against it and consented to the motion to amend the caption: “I was under the mistaken impression that this motion would result in a complaint being served, an answer being served, discovery being conducted, and then possibly a trial.... Therefore, I had no opposition to this motion.”

There is no merit to 634’s argument that the court, in amending the caption to include 634 and entering judgment against it, was correcting a DHCR order. The error in the DHCR order naming Equity Management in the space provided for “Mailing Address of Owner” was a ministerial one; since the record leaves no doubt that 634 is the party against which the DHCR award was issued, the majority’s conclusion that 634 “was not a party to the DHCR proceeding overcharge order” does not advance its position. Further, there is no merit to the majority’s assertion that the court deprived 634 of its right to file a PAR. 634 can hardly claim that it was unaware that it could avail itself of this procedure since the notice of right to administrative review accompanying the order states that “[a]n owner, tenant, or other party affected by an order . . . may file a PAR.”

Even if 634 were deemed to satisfy the requirement of showing a meritorious defense, I would still deny the motion to vacate the default since 634 has not offered a reasonable excuse. In this regard, it is noted that it does not deny that it was aware of the overcharge proceeding. Moreover, since Baruch Singer, a principal of Equity Management, named in the DHCR order instead of 634, is also a principal of 634, the latter can hardly *367complain that it was unaware of the award, which, regardless of the entity named in the space designated “Mailing Address of Owner,” directed the owner to make a full refund of any excess rent. Accordingly, 634 has failed to show prejudice. 634’s other contentions are without merit.

New York City Administrative Code § 26-516 (a) (5) provides that a rent overcharge order may, upon the expiration of the period in which the owner may institute a CPLR article 78 proceeding, “be filed and enforced by a tenant in the same manner as a judgment.”