Civil Court of the City of New York, Bronx County, July 9, 2021

Mobilization for Justice, Inc., New York City, for respondent.

Novick Edelstein Pomerantz P.C., Yonkers, for petitioner.

After oral argument, the decision and order on this motion is as follows:

Background and Procedural Posture

2115 Washington Realty (petitioner) commenced this summary nonpayment proceeding against Johnathan Braxton (respondent), in August of 2019. The petition sought unpaid rent in the amount of $3,233.20 and alleged that the subject premises are subject to the Rent Stabilization Law. Both sides are represented by counsel.

Respondent failed to answer, and petitioner obtained a default judgment on or about October 3, 2019. A warrant of eviction issued on or about October 13, 2019. Respondent obtained an order to show cause seeking to vacate the default judgment, returnable on November 14, 2019. On that date, the respondent, represented by counsel, entered into a stipulation, which, rather than vacating the default judgment, merely stayed execution of the warrant of eviction to December 31, 2019, for payment of $4,037.90 and current rent. [*2]Respondent filed a second order to show cause, returnable on January 31, 2020, seeking a further stay of execution of the warrant, but not seeking to vacate the default judgment. On that date, the parties entered into a stipulation staying execution of the warrant of eviction to February 28, 2020, for payment of $1,071.88 and February's rent. Respondent defaulted on that stipulation{**72 Misc 3d at 974} and petitioner alleges a notice of eviction was mailed to the respondent on or about March 6, 2020.

On March 16, 2020, the New York courts closed due to the COVID-19 pandemic, temporarily ceasing all in-person operations, except in emergency essential operations. After several months, the court resumed hearing cases that had been commenced prior to the start of the pandemic and petitioner filed a DRP-213 (Civ Ct of City of NY, Directive and Procedure [DRP] 213 [eff Aug. 12, 2020]) motion seeking leave to execute on the issued warrant. The motion was calendared for November 13, 2020, and was adjourned several times for opposition. Respondent invoked the Tenant Safe Harbor defense^[FN*] and the matter was set down for a hearing to April 13, 2021. On April 13, 2021, pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) (L 2020, ch 381), respondent made an oral application seeking the vacatur of the default judgment.

The Law and its Application

Section 3, part A, § 7 of CEEFPA (as amended by L 2021, ch 104, § 2) entitled "Default judgments" states the following:

"No court shall issue a judgment in any proceeding authorizing a warrant of eviction against a respondent who has defaulted, or authorize the enforcement of an eviction pursuant to a default judgment, prior to August 31, 2021, without first holding a hearing after the effective date of this act upon motion of the petitioner. The petitioner or an agent of the petitioner shall file an affidavit attesting that the petitioner or the petitioner's agent has served notice of the date, time, and place of such hearing on the respondent, including a copy of such notice. If a default judgment has been awarded prior to the effective date of this act, the default judgment shall be removed and the matter restored to the court calendar upon the respondent's written or oral request to the court either before or during such hearing and an order to show cause to vacate{**72 Misc 3d at 975} the default judgment shall not be required."

In opposition to respondent's request for vacatur of the default judgment, petitioner notes that respondent's counsel entered into two separate agreements after the entry of the default judgment. Petitioner argues that these agreements incorporated the default judgment by reference, and that by entering into these agreements respondent has ratified the judgment, which should no longer be viewed as a default judgment subject to vacatur under CEEFPA. Petitioner argues any vacatur of these stipulations must instead fall under the traditional standards and analysis.

In support of their application, respondent argues that the statutory text in question is unambiguous and that the vacatur of default judgments is meant to apply to all proceedings [*3]without exception. In support, respondent cites Ketcham Assoc. LLC v Gil (2021 NY Slip Op 30780[U] [Civ Ct, Queens County 2021]). In Ketcham, the petitioner obtained a default judgment after inquest prior to the COVID-19 pandemic. The court in Ketcham found that removal of the default judgment was appropriate. The instant proceeding, however, has several notable differences that distinguish it from the procedural posture of Ketcham. In Ketcham, while there was litigation prior to the entry of the default judgment against the respondent, it appears that no litigation took place subsequent to the entry of the default judgment but prior to the COVID-19 pandemic. In the matter at bar, petitioner also obtained a default judgment and a warrant of eviction had issued prior to the commencement of the COVID-19 pandemic. In contrast, however, respondent filed an order to show cause to vacate the default judgment prior to the commencement of the COVID-19 pandemic, and settled that order to show cause as well as another—both with the benefit of counsel, choosing to leave the default judgment in place and intact, and merely staying execution of the warrant of eviction.

Similarly, respondent also cites Webster Ave. Affordable LLC v James (Civ Ct, Bronx County, Mar. 30, 2021, Jennings, J., index No. LT-048791-19/BX). In Webster Ave., the petitioner also obtained a default judgment after inquest and no litigation took place after entry of the judgment. Further, the court found the respondent was in need of a guardian ad litem. This matter again differs from the case at bar in that while a default judgment was obtained, there was no subsequent litigation that occurred after the issuance of the default judgment and{**72 Misc 3d at 976} warrant of eviction but prior to the start of the COVID-19 pandemic. Lastly, respondent cites Jenkins Portfolio Cos. LLC v Grant (NYLJ, May 12, 2021 at 17, col 2, 2021 NYLJ LEXIS 418 [Civ Ct, NY County, May 5, 2021, Schneider, J., index No. LT-073223-19/NY]). The facts of Jenkins are consistent with those previously cited where the petitioner obtained a default judgment with no litigation after the issuance of the judgment but before the commencement of the pandemic and inapposite to the matter at hand.

COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 Analysis

The intent of the legislation as stated in the CEEFPA (L 2020, ch 381, § 3) is "to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19." Consistent with this intent are the layers of protection in obtaining and executing on a default judgment during this pandemic period, such as the motion required by section 3, part A, § 7, alerting respondent to the time and date default would be sought, the service of a hardship declaration, and the ease in which such default may be "removed." Jenkins Portfolio Cos. LLC v Grant (NYLJ, May 12, 2021 at 17, col 2, 2021 NYLJ LEXIS 418 [Civ Ct, NY County, May 5, 2021, Schneider, J., index No. LT-073223-19/NY]), as cited in support by respondent, expresses this intent, as it states, "the Legislature's intent to insure that tenants are not evicted on default during the pandemic period." (Id. at *3 [emphasis added].)

At the onset of its statutory analysis this court guides itself on the principle that "all parts of a statute are to be read and construed together to determine the legislative intent." (Gaden v Gaden, 29 NY2d 80, 86 [1971].) Accordingly, this court follows the analysis of the recent decision from Hon. Slade in Stuyvesant Manor, Inc. v Zayas (72 Misc 3d 1203[A], 2021 NY Slip Op 50607[U] [Civ Ct, Kings County 2021]). In Zayas, Hon. Slade opined the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 should have each section read to track the various stages of a proceeding as is delineated in the RPAPL. Essentially, the procedural posture of each case dictates what relief is available. Accordingly, the oral application to remove a default judgment is only available where a petitioner seeks a default judgment or seeks authorization to enforce one pursuant to CEEFPA, § 3, part A, § 7. This [*4]analysis {**72 Misc 3d at 977}is consistent with other parts of CEEFPA. For example, the effect of a hardship declaration differs depending on the procedural posture of each specific matter. If no warrant has issued, CEEFPA, § 3, part A, § 6 (as amended by L 2021, ch 104, § 2) applies, and the proceeding is stayed from any further litigation until the expiration of the statute, currently slated to expire on August 31, 2021. If a warrant has issued, on the other hand, section 3, part A, § 8 (as amended by L 2021, ch 104, § 3) entitled "Post warrant of eviction" provides guidance and permits litigation to proceed but stays execution of the warrant until the expiration of the statute. As such, the provisions of CEEFPA, § 3, part A should be read as guideposts as to what is permissible under the act depending on the procedural posture of the proceeding and how to address cases in various stages of litigation.

In the case at bar, removal of the judgment under section 3, part A, § 7 of CEEFPA would be inconsistent with the posture of this proceeding. Petitioner is not moving to obtain a default judgment or the authority to enforce one. The distinction, albeit a fine one, is material. While the underlying judgment in the instant proceeding is a default judgment, petitioner's DRP-213 motion seeks to execute an existing warrant where litigation has already contemplated the possibility of vacatur of the default judgment, as evidenced by respondent's prior request to the court. The parties, however, agreed to abandon said relief in favor of allowing the default judgment to remain in place and instead agreed simply to a stay in the execution of the warrant of eviction for a payment of arrears. The basis of petitioner's DRP motion is that petitioner should be allowed to execute the warrant based on a default of respondent's obligations where respondent, with the benefit of counsel, had ample opportunity to vacate the default judgment but instead agreed to leave it in place. Essentially, petitioner seeks to execute on the warrant of eviction based on a default in obligations under a pre-pandemic two-attorney stipulation. As such, the procedural posture of this proceeding more appropriately falls under CEEFPA, § 3, part A, § 8 entitled "Post warrant of eviction."

Section 3, part A, § 8 (a) (i) of CEEFPA in relevant part states the following:

"In any eviction proceeding in which an eviction warrant has been issued prior to the effective date of this act, but has not yet been executed as of the effective date of this act, including eviction proceedings{**72 Misc 3d at 978} filed on or before March 7, 2020, the court shall stay the execution of the warrant at least until the court has held a status conference with the parties."

This section of CEEFPA does not provide the relief of seeking the removal of a default judgment by merely an oral or written application. However, nothing in this section of CEEFPA precludes respondent from seeking the vacatur of a default judgment and/or subsequent stipulations under the traditional framework either.

An overview of the court's treatment of default judgments during the COVID-19 pandemic supports this analysis. DRP-205, effective March 13, 2020, instructed the clerks not to enter default judgments in any residential proceeding until the directive was rescinded. The directive was rescinded on October 12, 2020. Administrative Order of the Chief Administrative Judge of the Courts AO/68/20, issued March 16, 2020, provided that "[a]ll eviction proceedings and pending eviction orders shall be suspended statewide," and further stated that "the New York City Housing Court has been directed not to issue new eviction warrants when a party has not appeared in court" (at 2). Administrative Order of the Chief Administrative Judge of the Courts AO/127/20, issued June 18, 2020, further suspended eviction proceedings commenced on or before March 16, 2020. DRP-213, effective August 12, 2020, stated

"[c]onsistent with Administrative Orders 160/20 and 115/20, no adverse action (i.e., no defaults) shall be taken based upon the failure to file an answer in an eviction proceeding, or based upon the failure of a party to submit responsive papers to a motion [*5]submitted through EDDS, absent specific order of the Court." (DRP-213 [2] [B].)

Prior to the passing of CEEFPA, no mechanism was available to seek default judgments or enforce them. Thus, only through CEEFPA, § 3, part A, § 7 could a petitioner seek or enforce a default judgment. This triggers the aforementioned relief of "removing" a default judgment by an oral or written application and dispenses with the requirement that a formal order to show cause be filed to request such relief. Where, however, as here, the parties have had ample opportunity to litigate the propriety of the default judgment prior to the COVID-19 pandemic, the proceeding remains in a different procedural posture, and would fall under CEEFPA, § 3, part A, § 8.

Conclusion

Respondent's application to remove the default judgment is denied. Respondent entered into two stipulations after the entry of the default judgment, and petitioner has not moved this court under CEEFPA, § 3, part A, § 7. Accordingly, this proceeding cannot be viewed in the procedural posture that would afford it relief under section 3, part A, § 7 of CEEFPA. This application is denied without prejudice. The matter is adjourned to August 31, 2021, at 2:30 p.m. for a hearing pursuant to the Tenant Safe Harbor Act.