NYSCEF Docs. 34-35, 37-45 were read and considered in deciding these motions.

The plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Joseph Petro, Inc. (motion seq. 002).

The plaintiff moves for an order of contempt against the defendant Rugayya Begum (motion seq. 003).

The plaintiff subleased certain property to the defendant Joseph Petro, Inc. (hereinafter the corporate defendant), for a term commencing in March 2018 and ending in March 2038. The corporate defendant's obligations under the sublease were personally guaranteed by the defendant Rugayya Begum. After the corporate defendant defaulted on its obligations under the sublease, the plaintiff commenced a nonpayment proceeding. The nonpayment proceeding was resolved by a stipulation of settlement, pursuant to which the corporate defendant admitted to owing the plaintiff the amount of $158,133.36, and the corporate defendant promised to satisfy this debt pursuant to a payment schedule contained in the stipulation. The corporate defendant allegedly tendered only one payment in accordance with the stipulation, in the amount of $9,250, and failed to make any further payments as required by the stipulation. Thereafter, a judgment was issued on December 12, 2022, in favor of the plaintiff against the corporate defendant in the [*2]sum of $148,888.36, with 9% post-judgment interest.

The defendant allegedly continued to maintain possession of the premises from December 2022 through March 2023, but did not tender any rent or pay real estate taxes. The plaintiff did not get a new tenant until October 2023. The plaintiff alleges that, for the period of December 2022 through October 2023, the defendants are indebted to the plaintiff in the sum of $68,000 for base rent, $5,440 for late fees, $24,858.05 for real estate taxes, and $25,370.63 for repairs, maintenance, and other work to the premises so that the premises would be suitable to for a third-party tenant.

On May 30, 2024, the plaintiff commenced this action to recover damages for breach of contract (first cause of action) and breach of the personal guaranty (second cause of action). In the first cause of action, the plaintiff seeks to recover from both defendants the sum of $123,668.68, representing the sum of all debts allegedly accrued during the period of December 2022 through October 2023. In the second cause of action, the plaintiff seeks to recover from Begum the sum of $148,888.36, together with 9% percent from December 12, 2022, representing the outstanding sum due to the plaintiff by the corporate defendant pursuant to the stipulation of settlement entered into between the plaintiff and the corporate defendant.

Begum filed an answer, wherein she denied the material allegations of the complaint and asserted various affirmative defenses.

The corporate defendant has not answered or otherwise appeared.

In a decision and order dated June 26, 2025, this Court granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Begum. This Court denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the corporate defendant, on the ground that the corporate defendant had not joined issue.

Although this Court's decision and order dated June 26, 2025, did not direct the plaintiff to submit judgment on notice and did not sever the causes of action against the corporate defendant, the plaintiff nevertheless submitted a proposed judgment to the County Clerk (NYSCEF 29) and a judgment was entered on July 2, 2025, in favor of the plaintiff and against Begum in the principal sum of $123,668.68 (NYSCEF 30).

The plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the corporate defendant. The motion is unopposed.

"Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) default by the defendant" (Gold v Wallace, 230 AD3d 1113, 1115 [2d Dept 2024]). Here, the plaintiff submitted proof of service of the summons and complaint (NYSCEF 3, 32). The plaintiff also submitted proof of the facts constituting the claim by incorporating by reference the verified complaint and the affidavit of Edward L. Clark and the exhibits attached thereto. The plaintiff also established the corporate defendant's default. Under these circumstances, the plaintiff's motion for leave to enter a default judgment against the corporate defendant should be granted.

The plaintiff moves for an order of contempt against the defendant Rugayya Begum [*3](motion seq. 003). In an attorney affirmation submitted in support of the motion, counsel for the plaintiff contends that, after obtaining the July 2, 2025 judgment, the plaintiff served an information subpoena together with questions and answers, to which Begum has not responded. Counsel therefore argues that Begum should be punished with contempt of court.

In an attorney affirmation in opposition, counsel for Begum contends that Begum is elderly, lives in Pakistan, and was unaware of the information subpoena until she recently visited here. Counsel contends that, although Begum "has no assets and lives out of the country," she wishes to avoid contempt. Counsel notes that, attached as Exhibit A to his affirmation is Begum's response to the information subpoena. Exhibit A contains Begum's handwritten answers to the plaintiff's questions and answers (NYSCEF 45).^[FN1]

The plaintiff has not filed a reply.

It appears that this motion has been rendered moot by Exhibit A attached to Begum's opposition papers, and the plaintiff has not filed a reply to argue otherwise. Under these circumstances, the plaintiff's motion for contempt should be denied.

Moreover, under the circumstances here, the underlying judgment entered July 2, 2025, must be vacated. In this Court's decision and order dated June 26, 2025, this Court did not direct the plaintiff to submit judgment on notice, as this action was still pending against the corporate defendant at the time that order was issued (NYSCEF 27). Additionally, this Court did not sever the causes of action against the corporate defendant (NYSCEF 27). "[W]ithout a severance there can only be one judgment in a civil action" (Stevenson v Lazzari, 16 AD3d 576, 578 [2d Dept 2005] [internal quotation marks omitted]; see CPLR 5012; Barrier Sys. v A.F.C. Enterprises, 279 AD2d 543, 544 [2d Dept 2001]; Mariasia v Noyl Coram, Inc., 260 AD2d 607, 607 [2d Dept 1999]). "In the absence of a court order directing the entry of judgment and severing the remaining causes of action, the clerk was without authority" to issue a judgment in favor of the plaintiff and against Begum (Barrier Sys. v A.F.C. Enterprises, 279 AD2d at 544 [2d Dept 2001]; see CPLR 5012). Under these circumstances, the judgment must be vacated (see Barrier Sys. v A.F.C. Enterprises, 279 AD2d at at 544; Orix Credit Alliance v Grace Indus., 231 AD2d 502, 503 [2d Dept 1996]). Indeed, if the judgment against Begum is not vacated, it is possible that, in light of this Court's determination of motion sequence 002, the plaintiff would now seek a separate judgment in its favor and against the corporate defendant, which judgment might include damages on the first cause of action, which would result in an impermissible double recovery (see Orix Credit Alliance v Grace Indus., 231 AD2d 502, 503 [2d Dept 1996]).

Based on the foregoing, it is hereby

ORDERED that the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the Joseph Petro, Inc. (motion seq. 002), is GRANTED; and it is further,

ORDERED that the plaintiff's motion for an order of contempt against the defendant Rugayya Begum (motion seq. 003) is DENIED; and it is further,

ORDERED that the judgment entered July 2, 2025, is VACATED.

This constitutes the decision and order of this Court.

Submit judgment on notice (see 22 NYCRR 202.48[a]-[b]).