Supreme Court, Bronx County, February 23, 2021

Tiffany A. Liston, Mobilization for Justice, Inc., Bronx (Andre Jones of counsel), for petitioner.

Novick, Edelstein, Pomerantz, P.C., Yonkers (Ryan Matthews of counsel), for 216 Macon Street L.L.C., respondent.

Office of Court Administration, New York City (Michael J. Siudzinski of counsel), for Miriam Breier J.H.C., as Supervising Judge of the Bronx Housing Court, respondent.

The petitioner moves by order to show cause, inter alia, for a preliminary injunction enjoining respondent 216 Macon Street L.L.C., its agents and attorneys, from taking any further action to recover certain premises from petitioner; annulling, vacating, and setting aside the Housing Court's decision and order of October 14, 2020; issuing a writ of mandamus, pursuant to CPLR 7803 (1), ordering respondent Norma J. Jennings, J.H.C., to apply CPLR 2214 in determining respondent 216 Macon Street L.L.C.'s motion of August 30, 2020, made in the Housing Court, Bronx County; issuing a writ of mandamus, pursuant to CPLR 7803 (1), enjoining respondent Miriam Breier, J.H.C., from making any future declarations instructing litigants to file motions that contravene the CPLR; and awarding petitioner costs, disbursements and reasonable attorney's fees incurred in prosecuting this proceeding. By separate order to show cause, respondent 216 Macon Street L.L.C. (216 Macon) moves, inter alia, to oppose and vacate the stay/temporary restraining order entered by this court on December 16, 2020, and for an order vacating all stays, and permitting respondent to proceed under L/T index No. 28675/2019 in Bronx County Housing Court.{**71 Misc 3d at 348}

Respondent 216 Macon is the owner and landlord of 2454 Webb Avenue in Bronx County. Petitioner is the residential tenant of apartment 5D. An underlying nonpayment eviction proceeding was commenced against the petitioner^[FN*] in Bronx County Housing Court in 2019. The Housing Court proceeding was initially settled by stipulation in June 2019, at which time petitioner agreed to payment of $9,843.92 in past due rent through June 2019. Those payments were not made, and eventually the petitioner agreed to payment of $20,958.04, with execution of the warrant stayed for payment of rent due March 20, 2020.

Payments were not made, and respondent 216 Macon eventually moved for execution of the warrant by motion dated August 31, 2020. As per Administrative Order of Chief Administrative Judge of Courts AO/160/20, effective [*2]August 13, 2020, prosecution of eviction matters commenced prior to March 17, 2020, could be resumed, with the provision that

"[f]urther proceedings in particular matters (both commercial and residential) may continue to be governed by the suspension of 'any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described by the procedural laws of the state,' set forth in Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, and 202.55." (Mem of Chief Admin Judge of Cts, Revised Procedure for Addressing Residential and Commercial Eviction Proceedings [Aug. 12, 2020].)

Further, with respect to residential matters, "the court must hold a status or settlement conference to address a range of subjects related to the case and COVID-19 concerns, including the availability of relief under the New York Tenant Safe Harbor Act (L. 2020, c. 127) and other state or federal edicts." (Id.)

In furtherance of AO/160/20, the New York City Civil Court issued Directive and Procedure 213 (DRP-213) ("Management of Pre-Pandemic Eviction Proceedings in the New York City Civil Court [Part I]" [eff Aug. 12, 2020]). DRP-213 provides that "[b]eginning August 20, 2020, a petitioner seeking to enforce a warrant of eviction that was issued before March 17,{**71 Misc 3d at 349} 2020 must seek leave of court by motion on notice to respondent. Such a motion shall suffice to comply with the conference requirement contained in AO 160/20."

Pursuant to the directive of Bronx Housing Court Supervising Judge Hon. Miriam Breier, motions seeking issuance and execution of the pre-March 17th warrants were to be made returnable in the Housing Motion Part, without any specific time and place for hearing. Such time and place would be determined by the court.

It is not disputed that the court scheduled a Skype conference on September 28, 2020, which was adjourned because of Yom Kippur, and rescheduled the conference via Teams for 11:00 a.m. on October 14, 2020. There is no dispute that the petitioner had notice of the date, time, and place, and that the petitioner specifically argued that the "motion" failed to comply with CPLR 2214 (a), which provides that a "notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor." Petitioner argued that the notice of motion did not include a date or time for any hearing date, or specify the courthouse, thus "depriving petitioner of any notice."

Respondent Housing Judge Norma J. Jennings issued a decision and order dated October 14, 2020, in which she specifically considered and rejected the petitioner's argument regarding the lack of compliance with CPLR 2214 (a). Petitioner appealed that determination to the Appellate Term, First Department, and sought a stay pending appeal, which was ostensibly denied.

Mandamus has been characterized as an "extraordinary remedy" (Matter of County of Chemung v Shah, 28 NY3d 244, 266 [2016] [internal quotation marks and citation omitted]), which "is generally not available to compel government officials to enforce laws and rules or regulatory schemes that plaintiffs claim are not being adequately pursued" (Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, 118 [1st Dept 2017]). The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought. (Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981].)

It has not been shown that there exists a clear legal right to the relief sought herein. The requirement that a notice of motion{**71 Misc 3d at 350} be made was contained in DRP-213. However, AO/160/20 required only that a conference be held. The clear right to a notice of motion has not [*3]been established under these circumstances.

Moreover, even if a right to a notice of motion is presumed to exist, it must be observed (as the Housing Court judge did observe) that due to the COVID-19 pandemic, the application of the CPLR was suspended. In this regard, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8, which, inter alia, "tolled" certain civil practice requirements. Specifically, Executive Order No. 202.8 provided that

"any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules, . . . or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020." (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8].)

Executive Order No. 202.8 was extended through various further executive orders, including Executive Order No. 202.67 (Oct. 4, 2020), which stated

"[t]he suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state . . . is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled." (Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67].)

Consequently, "any specific time limit for the commencement . . . of any . . . motion" was suspended, and thus the manner in which a motion would be scheduled to be heard was within the province of the court to determine.

In short, the court had the discretion under the executive order to determine how applications to execute on warrants for preexisting cases should be resolved. The manner in which motions should be brought before the court during the continuing{**71 Misc 3d at 351} COVID-19 emergency was thus subject to "the exercise of discretion, not the performance of a mandatory, non-discretionary act; a writ of mandamus to compel is therefore not available." (Matter of New York City Yacht Club v New York City Dept. of Bldgs., 172 AD3d 606, 606 [1st Dept 2019].)

In view of the foregoing, a writ of mandamus cannot be granted. It is not necessary to consider respondent 216 Macon's argument that petitioner has failed to comply with the notice requirements of 22 NYCRR 202.7 (f).

This court has not considered any matter concerning the application of any potential stay that may apply by virtue of ongoing legislative enactments relating to evictions during the COVID-19 pandemic.

Accordingly, it is hereby ordered that motion sequence No. 1 is denied, and the petition is denied and dismissed, and it is further ordered that motion sequence No. 2 is granted only to the extent of vacating the stay issued herein, without prejudice to such stay as may be available in Housing Court under the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) (L 2020, ch 381), or otherwise.