84 N.Y.2d 674 (1994)

645 N.E.2d 724

621 N.Y.S.2d 291

In the Matter of Nicola S. Brusco, Respondent, v. Richard F. Braun, as Civil Court Judge, Appellant, et al., Respondent.

Court of Appeals of the State of New York.

Decided December 22, 1994.

Attorney(s) appearing for the Case

G. Oliver Koppell, Attorney-General, New York City (Barbara A. Mehlman, Jerry Boone and Sanford M. Cohen of counsel), for appellant.

Nicholas E. Brusco, respondent pro se.

MFY Legal Services, Inc., New York City (Stephen Myers and Andrew Goldberg of counsel), Legal Services for New York City (Andrew Scherer and David Robinson of counsel) and The Legal Aid Society (Scott A. Rosenberg and Barbara Q. Gray of counsel), for Metropolitan Council on Housing and others, amici curiae.

Horing & Welikson, P. C., Forest Hills, for Black & Latino Property Owners Coalition and another, amici curiae.

Kornstein Veisz & Wexler, New York City (Laura Gilbert of counsel), Paula Galowitz and Jonathan Lang for the Association of the Bar of the City of New York, amicus curiae.

Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH and LEVINE concur with Judge SIMONS; Judge CIPARICK dissents and votes to reverse in a separate opinion.


Petitioner Brusco is the owner of residential property in New York County. He commenced a summary proceeding against his tenant alleging that the tenant had defaulted in paying $3,626.04 rent due from December of 1991 through March of 1992 and seeking a judgment for the arrears, interest and attorney's fees, a judgment awarding possession of the premises to petitioner and the issuance of a warrant to remove the tenant from the premises. Notwithstanding the tenant's default in appearing, respondent Civil Court Judge refused to enter a judgment without an inquest. Petitioner instituted this CPLR article 78 proceeding seeking an order of mandamus directing him to sign a judgment in his favor without further proceedings, contending that the provisions of RPAPL 732 (3) require the court to "render judgment" upon default without an inquest. We agree and therefore affirm.

The summary proceeding was brought in the Housing Part of the New York City Civil Court, pursuant to the provisions of RPAPL article 7. A notice of petition was issued by the clerk of the Civil Court on March 13, 1992, and the notice and the petition were personally served upon the tenant on March 16. The notice advised the tenant that she must, within five days after service, appear before the clerk of the court or serve an answer upon petitioner. The tenant defaulted in appearing and on March 27, petitioner requested final judgment and a warrant evicting the tenant. She was advised that petitioner's request had been placed on the "Judgment and Warrant Residential Default Applications Calendar" of April 13.

On the adjourned date, petitioner's attorney appeared for the calendar call presided over by respondent. After petitioner's case had been called twice without the tenant's appearance, petitioner's attorney asked the court to render a judgment, noting that the petition had been verified by the petitioner on personal knowledge and that an attorney had personally served it on the tenant. The court denied petitioner's request and, following respondent's general practice, scheduled the matter for an inquest on May 1, 1992. This article 78 proceeding followed.

Supreme Court dismissed the petition, holding that the scheduling of an inquest is within respondent's discretion. On appeal, the Appellate Division, with one Justice dissenting, modified by granting so much of the petition as requested mandamus directing respondent to enter judgment of possession and rent due in favor of petitioner.1 The Appellate Division certified the following question to the Court of Appeals: "Was the order of this Court, which modified the judgment of the Supreme Court, properly made?"

It is well settled that the remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion (see, Matter of County of Fulton v State of New York, 76 N.Y.2d 675, 678; Matter of Mullen v Axelrod, 74 N.Y.2d 580, 583; Klostermann v Cuomo, 61 N.Y.2d 525, 539; Matter of Legal Aid Socy. v Scheinman, 53 N.Y.2d 12, 16). A party seeking mandamus must show a "clear legal right" to relief (County of Fulton, supra, at 678, citing Matter of Legal Aid Socy. v Scheinman, supra). The availability of the remedy depends "not on the [petitioner's] substantive entitlement to prevail, but on the nature of the duty sought to be commanded — i.e., mandatory, nondiscretionary action" (Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 N.Y.2d 88, 97). Thus, the dispositive question on this appeal is whether respondent Braun retains any discretion to withhold a judgment pursuant to RPAPL 732 (3) when a petition proper in form and substance demonstrates grounds for relief and the supporting papers establish proper service on the tenant. We hold that he does not.

RPAPL article 7 sets forth the jurisdictional and procedural requirements for summary proceedings to recover possession of real property. Section 732 of the article, the section at issue in this appeal, defines "Special Provisions" that are applicable when the proceeding is grounded on the tenant's failure to pay rent, provisions which the regulations make applicable in the New York City Civil Court (see, 22 NYCRR 208.42 [d]). The statute provides that if the tenant answers the petition, the clerk of the court is required to "fix a date for trial or hearing" (RPAPL 732 [2]). However, "[i]f the [tenant] fails to answer within five days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner" (RPAPL 732 [3]).

The plain language of the statute establishes two factual predicates to be determined by the court: whether petitioner has submitted an affidavit or certificate of service of the notice of petition and petition, and whether the tenant has failed to respond within five days of the date of service. If both conditions are met, the statute requires that "the judge shall render judgment in favor of the petitioner" (RPAPL 732 [3] [emphasis supplied]). The statute not only commands an action; it dictates the result. Where, as here, petitioner has proven service of the notice of petition and petition and the tenant has failed to appear, respondent has no discretion; judgment in favor of petitioner must be granted and mandamus lies to compel respondent to do that which the statute requires (see, People ex rel. Allen v Murray, 2 Misc. 152, affd 138 N.Y. 635).

Notwithstanding this unambiguous language, respondent maintains, and the dissent agrees, that the court may hold an inquest to look behind the default. "Rendering" judgment is a judicial act, he maintains, not subject to mandamus. He relies on dicta in Evarts v Kiehl (102 N.Y. 296). In Evarts, a surety sought a judgment against the estate of a deceased Judge because, after hearing all the evidence and taking the case under advisement, the Judge failed to render judgment and enter it in the docket book. The determination of disputed facts is a judicial function and manifestly the court could not be compelled to decide the case, nor could entry of judgment be compelled when the case had not been decided. That, however, is substantially different from the posture of this summary proceeding pursuant to a statute which provides that issues of fact shall be resolved against the tenant upon the tenant's default (compare, People ex rel. Allen v Murray, supra). We agree with the majority at the Appellate Division that as the term is used in section 732 (3), there is no substantive difference between "rendering judgment" and "awarding" or "granting" judgment and that mandamus lies to compel judgment "in favor of the petitioner" on the facts of this case.

Respondent asserts further that the provisions of CPLR 3215 (b), which permit an "assessment" when a plaintiff is required to apply to the court for a default judgment, authorize him to conduct an inquest. However, CPLR 3215 and RPAPL 732 (3) address the same subject matter — default judgments — and are inconsistent. The RPAPL does not provide for fact finding in the case of a defaulting tenant in a nonpayment proceeding (compare, RPAPL 731 [requiring hearing in all summary proceedings except those brought for nonpayment under RPAPL 732]) while the broader CPLR 3215 (b), permits fact-finding proceedings prior to the rendering of a default judgment. The CPLR provision does not apply because it has been abrogated by the more specific RPAPL 732 (see, CPLR 101 [CPLR "shall govern the procedure in civil judicial proceedings * * * except where the procedure is regulated by inconsistent statute"]; McKinney's Cons Laws of NY, Book 1, Statutes § 397 ["A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies"]).

Petitioner has complied with all the procedural requirements of RPAPL article 7: the petition was verified upon personal knowledge of the landlord (RPAPL 721, 741) and the notice of petition and petition were personally served upon the tenant (RPAPL 735). Inasmuch as there was no question regarding the sufficiency of the petition or the service and the tenant failed to answer, respondent was required by RPAPL 732 (3) to render judgment in favor of petitioner.

Article 7 represents the Legislature's attempt to balance the rights of landlords and tenants to provide for expeditious and fair procedures for the determination of disputes involving the possession of real property (see, Cotignola v Lieber, 34 A.D.2d 700, 701). The statute attempts to protect a landlord's right to recover premises occupied by a nonpaying tenant promptly but also to ensure that tenants are not unjustly evicted from their homes. Tenants are protected by multiple notice provisions and by the continuing jurisdiction of the Civil Court over the landlord/tenant disputes. Thus, RPAPL article 7 and the rules of court require the tenant to be notified at least three separate times before the return date: (1) as a predicate to commencement of the proceeding, a demand must be made upon the tenant for payment of rent or possession of the premises (RPAPL 711); (2) the notice of petition may be issued only by an attorney, Judge or clerk of the court and service of the notice of petition and petition must be made personally, by leaving them with a person of suitable age and discretion at the premises or by affixing it to a conspicuous place (RPAPL 731, 735); and (3) upon filing of the notice of petition with proof of service, the clerk promptly mails a postcard informing the tenant of the summary proceeding and the possibility of eviction (22 NYCRR 208.42 [i]). There are also judicial remedies available to tenants. Even after a default, the court may stay the issuance of the warrant of eviction up to 10 days (RPAPL 732 [3]), after issuance of the warrant, the tenant is entitled to at least 72 hours notice before execution (RPAPL 749 [2]), and prior to the execution of the warrant, the court retains jurisdiction to vacate the warrant for good cause shown (RPAPL 749 [3]). Finally, the Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed (see, Solack Estates v Goodman, 78 A.D.2d 512). These safeguards ensure adequate notice and judicial oversight of tenants' rights. The statute does not authorize the Judges to fashion additional, individualized protections upsetting the legislative scheme.2

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that the order appealed from is final and thus the certified question is unnecessary.

CIPARICK, J. (dissenting).

I respectfully dissent.

The dispositive issue on this appeal is the interpretation of the phrase "the judge shall render judgment" as used in RPAPL 732 (3). The fact that the instant petition was verified by the landlord and proper service was established does not detract from the Judge's exercise of judgment and discretion to "render" a judgment, a distinct judicial process not subject to mandamus and wholly distinguishable from a command to perform a ministerial act, which can be the subject of a mandamus proceeding (see, Klostermann v Cuomo, 61 N.Y.2d 525, 539). The majority, however, eliminates the judicial process from RPAPL 732 (3) by construing the Judge's function as the performance of a mere ministerial duty — the entry of judgment.

It has long been the law in this State that to render judgment is judicial and to enter it is ministerial (see, Evarts v Kiehl, 102 N.Y. 296, and discussion in dissenting mem below Matter of Brusco v Braun, 199 A.D.2d 27, 35-36). CCA 1401 provides that the Civil Court "shall have power to render any judgment that the supreme court might render in a like case" within the limits of its jurisdiction, whereas section 1402 states that a "judgment by default may be entered as provided in CPLR § 3215" (emphasis provided). These provisions, likewise govern judgments of the Housing Part of the Civil Court.

I disagree with the majority's finding that RPAPL 732 (3) is inconsistent with the provisions of CPLR 3215 rendering section 3215 inapplicable in summary nonpayment proceedings. Rather the provisions of CPLR 3215 should be read to enhance the provisions of RPAPL 732 (3) and should be harmonized rather than read in conflict, unless CPLR 3215 provides otherwise (see, e.g., CPLR 3215 [g] [3] [iii]; [4] [iii] [exclusions of summary nonpayment proceedings from notice provisions]). Thus, absent an express exclusion by the Legislature, CPLR 3215 (a) and (b) are applicable to summary proceedings in the Housing Part.

No purpose would be served by the Judge presiding over the nonpayment proceeding if all that is contemplated by RPAPL 732 (3) is a mechanical act that could be administered by a clerk. Indeed, given what is at risk in a nonpayment proceeding — the tenant's home — it is incongruous to read RPAPL 732 (3) as inconsistent with CPLR 3215, and in a manner that strips the Judge of all discretion.

Even the Court below admits that a Judge must evaluate the sufficiency of the landlord's pleadings and that, in certain cases, has the discretion to require and consider additional proof before entering judgment. This leads me to conclude that some discretion was intended to be afforded Civil Court Judges. Neither RPAPL 732 (3) nor CPLR 3215 is intended to serve simply as a rubber stamp once it appears that the court has jurisdiction over the matter and failure to appear is shown. It is only in an action for a sum certain where there is no dispute as to the amount due that the entry of a default judgment is a mere ministerial act. A nonpayment proceeding is at its core an equitable proceeding, only secondarily does it concern the recovery of a sum certain. Thus, some measure of proof of liability is required to satisfy the court of the prima facie validity of the cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3215.03). The measure of such proof is a uniquely judicial function, and in a RPAPL 732 action is often measured by the Judge's firsthand confirmation of the facts.

In cases like the instant one, the inquest serves this purpose and is consistent with the inherent power of the court and the discretion vested in the Judge. Therefore, respondent Braun's order directing an inquest comports with RPAPL 732 (3), as well as falling within the inherent power of the court (see, CCA 201, 212, 1401). The court, in calendaring the inquest need not do violence to the expeditious resolution of the matter. This is certainly preferable to subsequent litigation to stay and/or vacate execution of a warrant of eviction.

Certainly, in this proceeding, mandamus does not lie, as it is an extraordinary remedy requiring a showing of a clear right to the relief sought (Spring Realty Co. v New York City Loft Bd., 69 N.Y.2d 657). Petitioner has failed to establish the existence of such a clear right in this case.

Accordingly, I would deny mandamus and reverse the order of the Appellate Division.

Order affirmed, etc.


1. The Appellate Division held that the imposition of attorney's fees was the proper subject of a hearing in the underlying summary proceeding and the parties raise no argument with respect to that part of its order.
2. The record indicates that the practice of Civil Court Judges sitting in the Housing Part is inconsistent. Some hold inquests and others do not. Thus, the process to which a petition is subjected depends, arbitrarily, on the Judge presiding.


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