Riverbay Corp. v. Dawson

Riverbay Corp. v Dawson 2025 NY Slip Op 33035(U) August 28, 2025 Civil Court of the City of New York, Bronx County Docket Number: Index No. L&T-338630-23/BX Judge: Rina Gurung Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: HOUSING PART K --------------------------------------------------------------------X RIVERBAY CORPORATION, Index No. L&T-338630-23/BX

Petitioner-Landlord, DECISION/ORDER

-against- Motion Seq. No. 2 DARYL DAWSON,

Respondent-Tenant, and

ALVARADO BRANCH, JOHN DOE, and JANE DOE,

Respondents-Undertenants. --------------------------------------------------------------------X Present: Hon. Rina Gurung Judge, Housing Court

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

Papers Numbered Respondent’s Order to Show Cause, Affirmations, and Exhibits………...………. 23-25 Petitioner’s Opposition…………………………………………..…………….…. 26-27 Court File……………………………………………………..……….…….……. passim

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

Petitioner Riverbay Corporation (“Petitioner”) commenced this nonpayment of rent

proceeding under RPAPL § 711(2) on September 19, 2023, against Respondents Daryl Dawson

(“Mr. Dawson”), Alvarado Branch (“Mr. Branch”), John Doe, and Jane Doe. According to the

Petition, Petitioner is a cooperative corporation which seeks possession of the subject premises on

grounds that Respondents accrued arrears for monthly carrying charges. On October 2, 2023, Mr.

Branch interposed an answer. Thereafter, there were several appearances and adjournments with

a guardian ad litem being appointed for Mr. Dawson, NYSCEF Doc. No. 10, and Bronx Legal

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Services appearing as counsel for him as well, NYSCEF Doc. Nos. 8 and 11.

Subsequently Petitioner and Mr. Dawson (“Parties”) executed a stipulation by their

respective counsel, wherein Mr. Dawson agreed to a final judgment of possession and money

against him, in the amount of $41,567.52 as all carrying charges due through December 31, 2024,

with a warrant to issue forthwith, with execution stayed for payment of this carrying charges

balance plus carrying charges for January and February of 2025 on/before February 5, 2025.

NYSCEF Doc. No. 13. While this stipulation provided that Petitioner reserved the right to seek

fees and other charges “in this action or a separate plenary action[,]” such claims fall outside of

the definition of rent provided by RPAPL § 702(1) and therefore these claims were effectively

severed for a separate plenary action only. See also RPAPL § 702(2) (exempting cooperative

housing corporations from RPAPL § 702(1) unless that cooperative housing corporation is subject

to “article two, article four, article five or article eleven of the private housing finance law”);

NYSCEF Doc. No. 1 at 2, ¶ 7 (pleading that Petitioner is organized under “Article 2 of The Private

Housing Finance Law”).

Mr. Dawson then, by his counsel, filed this Order to Show Cause, requesting that the Court

“[s]tay[] execution of the warrant of eviction[,]” “[g]rant[] Respondent [Dawson] additional time

to satisfy the judgment[,]” [v]acate the judgment and warrant upon payment of arrears[,]” along

with other relief as the “Court deems just and proper.” NYSCEF Doc. No. 24 at 1. This Order to

Show Cause was first returnable on June 24, 2025, before then first being adjourned on consent as

Mr. Dawson’s counsel represented that the New York City Human Resources Administration –

Department of Social Services (“HRA-DSS”) issued arrears payments on behalf of Mr. Dawson.

The Order to Show Cause was adjourned by stipulation a second time as Petitioner denied receipt

of seven HRA-DSS checks; this two-attorney stipulation also operated as a receipt of Mr.

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Dawson’s in-court tender of $1,794.30 in money orders.

The Parties argued this Order to Show Cause on August 26, 2025, with Petitioner’s counsel

agreeing that Petitioner received the HRA-DSS payments, and with Mr. Dawson’s counsel arguing

that Mr. Dawson was entitled to a carrying charges credit of $12,276.96 through August of 2025

after application of those payments.1 Given that Petitioner subsequently filed a satisfaction of

judgment acknowledging that the final judgment against Mr. Dawson for $41,567.42 has been

fully satisfied and in light of the fact that Petitioner did not dispute that applying the funds to the

carrying charges balance would result in Mr. Dawson possessing a credit for carrying charges

through August of 2025, the Court grants Mr. Dawson’s Order to Show Cause to the extent that

the Court vacates the judgment and warrant against Respondents, and dismisses this nonpayment

proceeding under RPAPL § 749(3), without prejudice to the Parties’ remaining disputes over fees,

non-carrying charges, and penalties.2

Mr. Dawson’s counsel, Legal Services NYC – Bronx by Roland Nimis, Esq. (“Mr.

Nimis”), additionally made an oral application for a civil penalty to be applied to Petitioner under

CPLR 5020(c), for failure to timely file a satisfaction of judgment. When Mr. Nimis was informed

that the Court would not hear arguments on a claim for relief not included on the notice of motion,

1 While Petitioner’s counsel argued that the HRA-DSS payments should be applied to fees and non-carrying charges as well, payments must be applied as earmarked, Snide v. Larrow, 62 N.Y.2d 633, 634 (1984) (“The general rule is that the debtor may direct the application of his payments, but if he fails to do so, then the creditor is permitted to apply the payments as he sees fit”), and HRA-DSS’ payments must be applied as intended by the agency, L & T E. 22 Realty Co. v. Earle, 192 Misc. 2d 75, 76 (App Term, 2d Dept 2002) (“Whether or not the DSS payment was explicitly earmarked for December 2000 rent, it was at all times clear to landlord that the payment, which was in the amount of the December 2000 rent, was intended to be applied to that rent and not to the arrears”). Here, HRA-DSS likely relied on the two-attorney stipulation of settlement in which Petitioner previously agreed to seek possession of the subject premises based on the carrying charges balance due, when assessing how much arrears assistance it should provide Mr. Dawson, and therefore these payments must be applied to the carrying charges balance. 2 Even if Petitioner returned the HRA-DSS payments, and even if such refusal of tender did not violate Executive Law § 296(5)(a)(1), this proceeding must be dismissed given that the complete “rent” due was tendered. RPAPL 749(3)(“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.” (emphasis added)).

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HCE Assocs. v. 3000 Watermill Lane Realty Corp., 173 A.D.2d 774, 774 (2d Dept 1991)

(“Generally, a notice of motion or order to show cause must state the relief demanded and the

grounds therefor”), he responded that he would then file a motion seeking relief under CPLR

5020(c). Therefore, in the interest of judicial economy, the Court addresses Mr. Dawson’s

counsel’s oral application for civil penalties to be applied against Petitioner in this proceeding.

The provision governing civil penalties for failure to timely execute and file a satisfaction of

judgment with the proper clerk states in relevant part that:

When a judgment for five thousand dollars or more is fully satisfied, if the person required to execute and file with the proper clerk pursuant to subdivisions (a) and (d) of this section fails or refuses to do so within twenty days after receiving full satisfaction, then the judgment creditor shall be subject to a penalty of five hundred dollars recoverable by the judgment debtor pursuant to section seventy-two hundred two of this chapter or article eighteen of either the New York city civil court act, uniform district court act or uniform city court act; provided, however, that such penalties shall not be recoverable when a city with a population greater than one million persons is the judgment creditor, unless such judgment creditor shall fail to execute and file a satisfaction- piece with the proper clerk pursuant to subdivisions (a) and (d) of this section within twenty days after having been served by the judgment debtor with a written demand therefor by certified mail, return receipt requested.

CPLR 5020(c) (emphasis added).

Based on this Court’s review of its limited jurisdiction and the plain text of the very

provision Mr. Dawson’s counsel relies on as support for a civil penalties claim, the Court denies

this claim without prejudice to Mr. Dawson’s ability to seek this relief in an appropriate forum.

CPLR 7202 merely provides that “[w]here a penalty or forfeiture is given by a statute to a person

aggrieved by the act or omission of another, the person aggrieved may commence an action to

recover it[,]” and this is a special proceeding rather than an action. See CPLR 103 (“All civil

judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the

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form of a summary proceeding is authorized.”); CCA § 110(a)(5) (distinguishing between actions

and summary proceedings). This is a summary proceeding commenced by Petitioner for

possession of the subject premises and not an action which was commenced by Mr. Dawson for

recovery of a civil penalty. See CCA § 110(a)(5).

Moreover, CCA § 110 does not authorize the Housing Part of the Civil Court of the City

of New York to hear CPLR 5020(c) based claims for civil penalties, and in fact, CPLR 5020(c)’s

enumeration of the venues in which these claims may be heard does not include the Housing Part.

Cf. People v. Page, 35 N.Y.3d 199, 206–07 (2020) (“[U]nder the maxim expressio unius est

exclusio alterius [] where a law expressly describes a particular act, thing or person to which it

shall apply, an irrefutable inference must be drawn that what is omitted or not included was

intended to be omitted or excluded” (internal quotation marks omitted)). The only reference to the

New York Civil Court Act is to Article 18 – the article governing small claims. See CCA §§ 1801-

1815.

Whatever potentially meritorious claim for civil penalties Mr. Dawson possesses under

CPLR 5020(c), it cannot be heard in this proceeding. Therefore, Mr. Dawson’s counsel’s oral

application is accordingly denied without prejudice to Mr. Dawson’s ability to seek such relief in

a plenary action.

The foregoing constitutes the Decision and Order of this court.

Dated: Bronx, New York August 28, 2025 SO ORDERED

_______________________ Hon. Rina Gurung Judge, Housing Court

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