NP Irrevocable Living Trust v Harris

Civil Court of the City of New York, Queens County

Decided on April 10, 2026

Index No. LT-315233-25/QU

Peter F. Lane, J.

The following papers were read on respondent Joshua Harris' order to show cause (Motion Seq. No. 007) to stay the warrant of eviction and restore the proceeding to the Part 52 calendar and respondents' motion (Motion Seq. No. 008) to vacate the default judgment (CPLR 5015 [a] [3]; [a] [4]; 317).

Papers Numbered

Order to Show Cause, Affidavit, Exhibits, Service 1-4

Affirmation in Opposition, Exhibits, Service 5-7

Notice of Motion, Affirmation in Support, Exhibits, Service 1-3

Affirmation in Opposition, Exhibits, Service 4-6

Affirmation in Reply, Exhibits, Service

Upon the foregoing papers it is ordered that these motions are determined as follows:

Petitioner commenced this commercial real estate non-payment proceeding by filing a notice of petition and petition on October 3, 2025. Upon respondents' failure to timely answer, petitioner was granted a judgment of possession and a warrant of eviction on November 18, 2025 for the premises known as and located at 124-06 Rockaway Blvd., Second Floor, South Ozone Park, NY 11420 ("the premises"). Respondents thereafter filed an untimely answer on November 27, 2025 without leave of court. Respondents made three related motions seeking to dismiss the complaint (Motion Seq. No. 005), to schedule a traverse hearing (Motion Seq. No. 004) and to restore this action to the trial calendar (Motion Seq. No. 002). In its Decision and Order dated [*2]February 18, 2026, the Court (Lane, J.) denied respondents' motions. Respondent Joshua Harris now moves by order to show cause to stay the warrant of eviction and restore the proceeding to the Part 52 calendar. Respondents also move to vacate the default judgment.

The Court will first turn to respondent Joshua Harris' order to show cause (Motion Seq. No. 007) to stay the warrant of eviction and restore the proceeding to the Part 52 calendar.

RPAPL 749 (3) states, "[n]othing contained herein shall deprive the court of the power to stay or vacate such warrant for good cause shown prior to the execution thereof, or to restore the tenant to possession subsequent to execution of the warrant. In a judgment for non-payment of rent, the court shall vacate a warrant upon tender or deposit with the court of the full rent due at any time prior to its execution, unless the petitioner establishes that the tenant withheld the rent due in bad faith." "The good cause requirement of RPAPL 749 (3) is satisfied, inter alia, by the payment of rent arrears and proof of mitigating factors" (see Rhinestone Ventures Assoc., LP v Vatter, 2002 NY Slip Op 40265(U) [App Term, 2d Dept, 9th & 10th Jud Dists 2002]).

Here, respondent Joshua Harris requests the warrant of eviction be stayed "until the case is hear[d] on the merits" and incorrectly states this proceeding is "pending on the trial calendar." As this Court has made clear in its prior Orders, this proceeding ended upon the Court awarding the petitioner a judgment of possession and a warrant of eviction on November 18, 2025 for the premises. The Court finds respondent Joshua Harris fails to demonstrate good cause to stay the warrant of eviction. Therefore, the balance of respondent's order to show cause (Motion Seq. No. 007) is denied.

The Court now turns to the respondents' motion (Motion Seq. No. 008) to vacate the judgment.

The first branch of respondents' motion seeks to vacate the judgment pursuant to CPLR 5015 (a) (3).

"CPLR 5015 (a) (3) permits a court to relieve a party from an order or judgment on the ground of 'fraud, misrepresentation, or other misconduct of an adverse party.' While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time" (see Wells Fargo Bank, N.A. v Olivo, 241 AD3d 763, 765 [2d Dept 2025], quoting Empire State Conglomerates v Mahbur, 105 AD3d 898, 899 [2d Dept 2013]). "The determination as to whether a motion for relief from a decree was made within a reasonable time is within the court's discretion" (see Matter of Perrenod, 243 AD3d 794, 796 [2d Dept 2025]).

Here, pursuant to the circumstances of this case, including its recognition that this is the eighth motion filed by the respondents, the Court finds respondents' delay in seeking relief under CPLR 5015 (a) (3) until this instant motion is unreasonable. Likewise, this Court finds respondents' allegations fail to meet their burden to demonstrate fraud on the part of petitioner warranting vacatur of the judgment in this proceeding. Therefore, the branch of respondents' motion for vacatur of the judgment pursuant to CPLR 5015 (a) (3) is denied.

The second branch of respondents' motion seeks to vacate the judgment pursuant to CPLR 317.

"CPLR 317 permits a defendant who has been served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (see Grant v City of Mount Vernon, 238 AD3d 1115, 1116 [2d Dept 2025]). "Mere denial of receipt of the summons and complaint is insufficient to warrant relief under CPLR 317" (see Gutierrez v Hillside Hotel, LLC, 234 AD3d 672, 673 [2d Dept 2025]).

Here, respondents deny receiving the notice of petition and petition, but acknowledge receiving "two white post card from the L&T Court after the default judgment was entered." The Court finds that the address the court notices were mailed to match the address listed within the petitioner's affidavit of service. Therefore, the Court finds respondents failed to demonstrate they did not receive actual notice of the action in time to defend themselves. As such, the branch of respondents' motion for vacatur of the judgment pursuant to CPLR 317 is denied.

The third, and final, branch of respondents' motion seeks to vacate the judgment pursuant to CPLR 5015 (a) (4).

Here, the petitioner's affidavit of service indicates that service of the petition and notice of petition was effectuated upon respondents Joshua Harris and Joshua Realty, pursuant to RPAPL 735 (1), via substitute service to an individual, "John Doe," who stated that he is authorized to accept service on behalf of the respondents. Here, the Court finds respondents make a bare, conclusory denial of service insufficient to dispute the veracity or content of the affidavits requiring a traverse hearing. Therefore, the branch of respondents' motion for vacatur of the judgment pursuant to CPLR 5015 (a) (4) is denied.

The balance of respondents' motion (Motion Seq. No. 008) is hereby denied. Any relief requested that is not addressed herein has been otherwise considered and is likewise denied.

This is the Decision and Order of the Court.

Dated: April 10, 2026

Jamaica, New York

Hon. Peter F. Lane, JCC