DECISION & ORDER BACKGROUND Petitioner commenced this summary nonpayment proceeding based on the allegation that Gauri Shankar d/b/a Ashoka Restaurant and Hari Ram Yadao d/b/a Ashoka Restaurant (collectively “Respondents”) the tenants of record for the South Store at 489 Columbus Avenue, New York, NY 10024 (Subject Premises) had failed to pay rent due under the lease agreement between the parties. PROCEDURAL HISTORY The petition was filed in April 2019. On May 15, 2019, the court (Kim, J) issued a default judgment against Respondents, and the warrant of eviction issued on or about May 16, 2019. On June 7, 2019, Respondents appeared pro se and moved for an order vacating the judgment. Respondents stated that they had made some payments, and were in negotiations with Petitioner to reduce the rent. Respondents also stated there had been a fire at the Subject Premises. The motion was granted by the court (Kim, J) pursuant to a decision and order dated October 16, 2019, wherein the court vacated the judgment and warrant and agreed to permit Respondents to file an answer by 10/31/19 or deem a general denial asserted on their behalf. The parties entered several stipulations wherein Respondents agreed to make interim payments and the parties stipulated to a trial date of November 7, 2019. On October 16, 2019, each respondent filed a pro se answer. Both answers asserted that the Respondents were not served, that there had been no proper rent demand, that there were conditions in the Subject Premises Petitioner failed to repair and services Petitioner failed to provide, and a general denial. On November 7, 2019, the parties entered into a stipulation of settlement that was so-ordered by the court (Baron, J). The parties agreed there were outstanding arrears of $164,648.98 due through November 2019. Petitioner agreed to unconditionally waive $68,488.00, equal to four months rent, of that amount, and Respondents consented to a judgment in the amount of $96,160.98. The warrant of eviction was to issue forthwith, and execution was stayed for payments of arrears, which was to be at the rate of $5000 in addition to the monthly rent from January 2020 forward. The second warrant of eviction issued on November 20, 2019. On June 23, 2021, Respondents filed a Covid 19 Hardship Declaration. Notwithstanding the fact that a stay had been imposed by the filing of the Hardship Declaration, Petitioner, through its Marshal, executed on the money judgment in the underlying stipulation. Petitioner served Respondents with a Notice of Levy and Sale, dated September 24, 2021. Pursuant to same, Petitioner appears to intend to sell the contents of the Subject Premises, as listed on the inventory and levy, and it appears the Marshal has taken possession of the items inside the Subject Premises which Respondents used to run the business. The items listed in the Inventory & Levy Receipt issued by the Marshall include: 80 bottles of wine, all the tables and chairs in the Subject Premises, a television, all the computers in the Subject Premises, all of the cooking equipment in the Subject Premises, the stove, microwaves, pots, pans, the refrigerator, dishwasher and all art and decorations on the walls and floor of the Subject Premises. THE PENDING MOTIONS On October 13, 2021, Petitioner moved for an order finding Respondents’ hardship claim invalid and permitting execution of the warrant. On the same date, Respondents’ appeared by counsel and moved by Order to Show Cause for an order vacating the judgment and warrant, stopping the sale of their equipment and related relief. On October 13, 2021, the motions were fully briefed, and the court marked the motions submitted and reserved decision. The motions are consolidated herein for disposition, and determined as set forth below. DISCUSSION Both motions are granted to the extent of setting this matter down for a hearing. Moreover, Petitioner and Marshal Stephen Biegel are directed to restore all of the items taken from the Subject Premises forthwith, at Petitioner’s sole cost and expense. The Marshal’s notice of levy and sale is hereby declared null and void. This court finds Petitioner’s actions in removing the items from the Subject Premises to be a clear end run around the stay afforded Respondents by the filing of the Hardship Declaration. Therefore, in addition to a hearing on the relief in the pending motions, Petitioner and Petitioner’s counsel are directed to show cause before this Court as to why sanctions should not be imposed on both Petitioner and Petitioner’s counsel for their actions in this regard. WHEREFORE it is hereby ORDERED that COL, LLC and Marshal Stephen W. Biegel are directed to return all items listed in the Inventory & Levy receipt, dated September 24, 2021 to the Subject Premises forthwith; and it is further ORDERED that the Notice of Levy and Sale dated September 24, 2021 is declared null and void; and it is further ORDERED that COL, LLC, Joseph O Brusco, Matthew N Ross, Esq, and Nicholas Brusco, Esq. appear before this court and show cause why sanctions should not be imposed for the execution of the judgment herein; and it is further ORDERED that a hearing be held on the balance of the relief sought in the consolidated motions; and it is further ORDERED that all parties and their counsel are directed to appear virtually before this court in Part 52 on Tuesday October 22nd at 11:00 am in Part 52 for said hearings; and it is further ORDERED that Petitioner is stayed from taking any action to enforce any part of the judgment or warrant issued in this proceeding pending further order of this court. This constitutes the decision and order of the court. Dated: October 15, 2021
