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860 Nostrand Assoc., LLC v WF Kosher Food Distribs. Ltd.

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860 Nostrand Assoc., LLC v WF Kosher Food Distribs. Ltd.

Postby TenantNet » Sun Feb 21, 2010 8:18 pm

It is critical that all tenants and their advocates are aware of a recent bad decision: 860 Nostrand Assoc., LLC v WF Kosher Food Distribs. Ltd.


In a non-payment case only, a tenant can no longer make a pre-answer motion to dismiss and if the motion is unsuccessful put in an answer. They may find out that the making of a pre-answer motion to dismiss on notice, instead of moving by order to show cause and seeking a stay of the time to answer, will result in a default.

Here is the key part of the decision:

In the City of New York, a tenant's time to answer a nonpayment petition is governed by the special provisions of RPAPL 732 (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.42 [d]).

These provisions require a respondent to answer before the clerk within five days after service of the notice of petition, and require the court to render judgment in favor of the petitioner if the respondent fails to timely answer. The statute makes no provision for an extension of the time to answer if a respondent moves to dismiss.

Moreover, while CPLR 404(a), which applies to special proceedings generally, provides that a respondent in a special proceeding may move to dismiss within the time allowed for answer and that, if the motion is denied, the court may permit the respondent to answer, this provision, unlike CPLR 3211 (f), which is applicable in plenary actions, does not automatically extend the respondent's time to answer (see Matter of Dodge, 25 NY2d 273, 286-287 [1969]; Eklecco Newco, LLC v Chagit, Inc., 12 Misc 3d 143[A], 2006 NY Slip Op 51421[U] [App Term, 9th & 10th Jud Dists 2006]), and the court, upon deciding tenant's motion, did not extend tenant's time to answer.

Thus, even assuming, in favor of tenant, that CPLR 404 (a) is applicable in proceedings governed by RPAPL 732, and even assuming further that a court, upon a motion not made returnable as provided in CPLR 406, may extend the time to answer, issues we need not reach here, the final judgment entered herein was at most premature and tenant showed no basis to set it aside.
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