Silverstein v. Huebner

HON. JACK STOLLER J.H.C.

Unpublished Opinion

For Petitioner: Nissan Shapiro

For Respondent: Dana M. Christensen

HON. JACK STOLLER J.H.C.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Pages numbered

Notice of Motion and Supplemental Affidavit and Affirmation Annexed 1, 2, 3

Addendum to Notice to Restore and Supplemental Affirmation and Affidavit Annexed 4, 5, 6

Notice of Cross-Motion and Supplemental Affirmation and Affidavits Annexed 7, 8, 9

Affirmation and Affidavit In Opposition and Reply 10, 11

Reply Affirmation 12

Upon the foregoing papers, the Decision and Order on this motion are as follows:

Yehuda Silverstein, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Levi Huebner ("Respondent"), a respondent in this proceeding, and Elie Poltorak ("Co-Respondent"), another respondent in this proceeding, seeking possession of the subject premises. Petitioner obtained a judgment against Co-Respondent on inquest and a warrant issued. Petitioner now moves for leave to execute on the warrant. Co-Respondent cross-moves to remove the judgment obtained against him, to vacate a stipulation that Respondent entered into with Petitioner, and for leave to interpose an answer. The Court consolidates these motions for resolution herein.

This proceeding was first noticed to be heard on December 19, 2018. Respondent, who is an attorney, initially represented Co-Respondent in this matter and moved for relief, including but not limited to dismissal on the basis of lack of personal jurisdiction, supported by an affirmation of Co-Respondent (who is also an admitted attorney), dated January 24, 2019. By an order dated April 5, 2019, the Court denied so much of the motion as sought dismissal and directed service of an answer within thirty days. Petitioner effectuated service of this order on Co-Respondent with notice of entry by regular mail on April 11, 2019. Co-Respondent never served an answer. The Court also granted Respondent's separate motion to be relieved as Co-Respondent's attorney and, finding that Co-Respondent was not a necessary party, transferred this case to the trial part by an order dated May 16, 2019. After a substantial amount of motion practice and adjournments, Respondent entered into a stipulation with Petitioner on March 4, 2020 ("the Stipulation"). Co-Respondent did not appear in Court that day and, of course, did not sign the Stipulation. The Stipulation conferred a judgment of possession upon Petitioner as against Respondent, provided for a forthwith issuance of a warrant of eviction, and stayed execution thereof through March 31, 2020. The Stipulation stated that Co-Respondent remained in possession of the subject premises. The Court held an inquest on March 4, 2020 and then entered a judgment of possession against Co-Respondent ("the Judgment"), with the same timeframe regarding the issuance and execution of the warrant. The warrant issued on March 16, 2020.