FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 506607/2017
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`RECEIVED NYSCEF: 06/05/2018
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS: IAS PART 9
`IN THE MATTER OF Nanyang Realty Corp
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`For an Order Pursuant to Article 78 of the C.P.L.R.
`in the Nature of Mandamus
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`Petitioner,
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`-against-
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`Index No. 506607/17
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`ELEANORA OFSHTEIN, HOUSING COURT JUDGE OF THE
`COUNTY OF KINGS, CAROL ALT AS CHIEF CLERK OF THE
`CIVIL COURT, CITY OF NEW YORK, LEONIDES
`BARRETTO,
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`Respondents.
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`MEMORANDUM OF LAW ON BEHALF OF THE STATE
`RESPONDENTS IN SUPPORT OF THE CROSS-MOTION
`TO DISMISS THE AMENDED PETITION
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`Petitioner Nanyang Realty Corp brings this proceeding against respondents Eleanora
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`Ofshtein, Housing Court Judge of the New York City Civil Court, Kings County, and Carol Alt,
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`Chief Clerk of the Civil Court; and Leonides Barretto, the tenant in the underlying Civil Court
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`landlord tenant proceeding. Petitioner seeks a writ of mandamus against State Respondents to
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`compel them to issue an order granting the relief sought in a motion in the underlying landlord
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`tenant proceeding. See Notice of Petition.
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`Respondents Judge Eleanora Ofshtein and Chief Clerk Carol Alt (collectively “State
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`Respondents”) submit this memorandum of law in support of their cross-motion to dismiss the
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`proceeding on the grounds that, pursuant to the New York State Civil Practice Law and Rules
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`(“CPLR”), this action is moot based on documents from the underlying landlord tenant
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`proceeding before the Civil Court. See CPLR Rule 3211(a)(1) and (7).
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 506607/2017
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`RECEIVED NYSCEF: 06/05/2018
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`Statement of the Facts
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`A copy of an Order, dated June 29, 2018, granting petitioner full possession against
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`Leonides Barretto is annexed to the accompanying affirmation of Michael Siudzinski, dated June
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`5, 2018, (“Siudzinski Aff.”) as Exhibit 1. A Warrant of Eviction, executed on January 17, 2018,
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`documenting petitioner taking full possession of the subject premises, is annexed to the
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`Siudzinski Affirmation as Exhibit 2.
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`Underlying City Court, Civil Action
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`By Notice of Petition, dated August 1, 2016, petitioner commenced the underlying
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`matter, a holdover housing court proceeding in the New York City Civil Court, Kings County
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`(hereinafter “Civil Court”) alleging that co-respondent Barretto was the licensee of the former
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`tenant of the subject premises, and that the term of the lease for the former tenant expired on July
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`31, 2016. See Petition ¶ 1. Petitioner further sought $2,000 per month in back rent from the
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`period of January 2013 to that time. See id, Ex. A. The underlying matter is in the Civil Court,
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`Kings County, and is titled Nanyang Realty Corp. v. Leonides Barretto, Ind. No. L&T
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`80074/2016.
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`On August 12, 2016, Barretto failed to appear before the Civil Court (Housing,
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`Resolution Part) because he was hospitalized, but the matter was adjourned until September 15,
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`2016. See id. ¶ 3; Ex. C.
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`On September 15, 2016, counsel for the parties appeared and the Court (Housing
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`Resolution Part) referred the matter to the Assigned Counsel Project, a program to help senior
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`citizens at risk of eviction and, on consent of the parties, adjourned the matter to October 20,
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`2016. See Wenig Aff. ¶ 6. On October 20, 2016, the Court, with consent of the parties,
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
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`adjourned the matter to December 2, 2016.
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`On December 2, 2016, the Court sent the matter to Part Ex for trial and adjourned the
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`matter to January 19, 2016 due to the hospitalization of Barretto. See id.; Exhibit C.
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`On January 19, 2017, the Civil Court, Part Ex, adjourned the matter to March 28, 2017
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`because there were no trial judges available to adjudicate the matter. See Petition, Ex. C. On or
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`about February 28, 2017, the respondent requested an adjournment of the trial, with consent of
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`petitioner until April 5, 2017. See id.
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`By Notice of Motion, dated March 8, and returnable March 18, 2017, petitioner moved
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`before the Civil Court, Part Ex, pursuant to RPAPL § 745, for an order directing Barretto to
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`deposit all sums for the use and occupancy of the subject premises that had become due
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`($3,293.64) since the commencing of the proceeding. See Petition ¶ 6; Ex. B. Petitioner argued
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`that Section 745 requires such a deposit when more than thirty (30) days have elapsed since the
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`commencement of the proceeding and none of the adjournments were at petitioner’s request.
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`See Petition ¶ 6. Part Ex of the Civil Court referred the motion back to the Resolution Part
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`(Ofshtein, J.) to be decided.
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`Barretto failed to oppose the motion. See id. ¶ 7. By Order, dated March 20, 2017, the
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`Civil Court (Resolution Part, Ofshtein, J.) denied petitioner’s request. See id., Ex. C., Order,
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`dated March 20, 2017. Judge Ofshtein noted that the multiple adjournments were due in part to
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`Barretto’s hospitalization and the court’s calendar and availability, and in each instance were
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`consented to by petitioner’s attorney. See id.
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`By Order, dated June 29, 2017 and amended November 11, 2017, the Civil Court (Slade,
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`J.) granted petitioner possession of the subject premises in the underlying matter, with execution
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 506607/2017
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`RECEIVED NYSCEF: 06/05/2018
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`of the warrant to occur on August 31, 2017. The court found that Barretto had passed away
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`during the presentation of the case during trial and that no one with a viable succession right to
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`the subject premises interposed a claim. See Siudzinski Aff., Exhibit 1. On November 14, 2017,
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`the Order was amended to include judgement against the John and Jane Doe respondents in the
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`proceeding.
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`By Warrant of Eviction, executed on or about January 17, 2018, petitioner took full
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`possession of the subject premises. See Siudzinski Aff., Exhibit 2. Accordingly, there are no
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`further proceedings in the underlying matter and no appeals taken therefrom.
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`Present Action
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`By Order to Show Cause, dated April 11, 2017, and Petition, dated April 3, 2017,
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`petitioner commenced this proceeding seeking relief in the nature of a writ of mandamus to have
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`this Court compel Judge Ofshtein to issue an order pursuant to New York State Real Property
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`and Proceedings Law § 745 to compel Barretto, the respondent and tenant in the underlying
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`proceeding, to pay use and occupancy for the subject residential premises pending the outcome
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`thereof.
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`Petitioner argues that Judge Ofshtein is required by statute to order the relief requested.
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`By answer, dated May 10, 2017, State Respondents argued that the proceeding should be
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`dismissed for failure to named Barretto as a respondent hereto or, in the alternative, petitioner
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`should be directed to amend the petition to add Barretto as a named respondent. The Court, by
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`Interim Order dated May 11, 2017, directed petitioner to amend the petition and add Barretto as a
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`named respondent. The matter was adjourned to June 15, 2017, with answers due June 8, 2017
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`pursuant to the CPLR.
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
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`On or about May 16, 2017, petitioner served the amended petition as directed by the
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`Court.
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`On information and belief, Barretto died on or about June 3, 2017. Thereafter, this
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`proceeding has been adjourned multiple times since Barretto’s death, ostensibly while petitioner
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`sought to join the decedent’s estate, which, to date, has not occurred.
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`ARGUMENT
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`PETITIONER’S REQUEST FOR RELIEF MUST BE DENIED
`BECAUSE PETITIONER’S CLAIMS ARE MOOT
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`The petition should be dismissed as moot. Co-respondent Barretto is now deceased.
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`Petitioner, by this proceeding, seeks a writ of mandamus from this Court to compel Judge
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`Ofshtein to issue an order directing Barretto to deposit $3,293.64 or more for the use and
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`occupancy of the subject premises in the underlying proceeding from the date of its
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`commencement in August 2016.1
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`Judge Ofshtein cannot be compelled to issue an order against a deceased party in the
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`underlying Civil Court matter. Pursuant to CPLR § 1015(a), the Civil Court is divested of
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`jurisdiction and the proceedings in the underlying matter were automatically stayed by Barretto’s
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`death until substitution for the decedent occurs pursuant to CPLR § 1021. See Singer v. Riskin,
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`32 A.D.3d 839, 839-40 (2d Dep’t 2006); see also Gonzalez v. Ford Motor Co., 295 A.D.2d 474
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`(2d Dep’t 2002); Kelly v. Methodist Hosp. 276 A.D.2d 672, 673 (2d Dep’t 2000). By both the
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`November 14, 2017 Final Judgment and the January 17, 2018 Warrant of Eviction, Barretto’s
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`1 Chief Clerk Carol Alt is named as a respondent presumably for the Court to issue an Order directing Clerk Alt to
`enter any order issued by Judge Ofshtein at this Court’s direction. Even assuming that this Court issues a writ of
`mandamus directing Judge Ofshtein to provide the relief petitioner seeks, it is procedurally unnecessary to name
`Clerk Alt as a respondent herein.
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
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`estate is not in possession of the underlying premises, nor was substitution made. Any
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`determination or ruling by the Civil Court without substitution is a nullity. See Hicks v. Jeffrey,
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`304 A.D.2d 618 (2d Dep’t 2003); Meehan v. Washington, 242 A.D.2d 286, 287 (2d Dep’t 1997).
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`“The power of a court to declare the law arises only out of, and is limited to, determining
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`the rights of persons which are actually controverted in a particular case pending before the
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`tribunal . . . Courts may not consider questions, which, although once live, have become moot by
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`passage of time or change in circumstances.” Matter of Hearst Corporation v. Clyne, 50 N.Y. 2d
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`707, 713-14 (1980). See also, Bernard v. Scharf, 93 N.Y. 2d 842 (1999) (where, after filing
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`notice of appeal, the buildings department rescinded its prior vacate order and declared the
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`building fit for occupancy, proceeding dismissed on grounds of mootness); Morrison v. N.Y. S.
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`Div. of Housing, 93 N.Y. 2d 834(1999).
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`On information and belief, the Barretto’s estate did not defend against the Civil Court
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`action and conceded possession of the subject premises in the underlying matter. Where the
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`conduct complained of has been rectified, an Article 78 proceeding should be denied as moot.
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`See Rattley v. N.Y. City Police Dep’t, 96 N.Y.2d 873, 875 (2001)(Where failure of the police
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`department to respond to FOIL request was rectified, Article 78 proceeding to compel disclosure
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`was properly dismissed as moot).
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`To the extent petitioner argues that the underlying matter is survived by co-respondents
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`“John Doe” and “Jane Doe” in the underlying matter, see Petition, Ex. A, the underlying
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`proceeding is now final and the Order, as amended November 14, 2017, includes judgment
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`against the John and Jane Doe respondents. See Siudzinski Aff., Ex. 1.
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`In any event, Judge Ofshtein cannot be compelled to grant petitioner’s RPAPL § 745
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`FILED: KINGS COUNTY CLERK 06/05/2018 03:06 PM
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`motion against John and Jane Doe because petitioner did not seek such relief against them in said
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`motion at issue here. See Petition, Ex. B. Furthermore, there is no pending action before the
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`Civil Court and therefore neither Judge Ofshtein nor any other judge of the court can be
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`compelled to issue such as order as they no longer have jurisdiction over the parties.
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`Accordingly, this petition for a writ of mandamus against Judge Ofshtein and Chief Clerk Alt
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`should be dismissed in their favor.
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`CONCLUSION
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`For the foregoing reason, State Respondents respectfully request that the Court issue an
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`order granting their cross-motion to dismiss this proceeding and granting such other and further
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`relief as the Court deems just, proper, and appropriate.
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`Respectfully submitted,
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`BARBARA D. UNDERWOOD
`Attorney General of the
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`Attorney for State Respondents
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`/S/
`By:
`MICHAEL J. SIUDZINSKI
`28 Liberty Street
`New York, NY 10005
`(212) 416-8552
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`Dated: New York, New York
`June 5, 2018
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`MICHAEL J. SIUDZINSKI
`Assistant Attorney General
` of Counsel
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