Brusco v. Braun, 199 A.D.2d 27 (1993)

Citation: Brusco v. Braun, 199 A.D.2d 27 (1993)
Parent Document: Brusco v. Braun, 199 A.D.2d 27 (1993)
Jurisdiction: New York (state)
Effective Date: 1993-12-07
Original Source: https://www.courtlistener.com/opinion/6103695/brusco-v-braun/ ↗

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RPAPL 732 is made applicable to nonpayment proceedings in Civil Court by Uniform Rules for Trial Courts (22 NYCRR) § 208.42 (d) pursuant to the authority vested in the Appellate Division of the Supreme Court. The statute provides: "If the respondent 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 and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service.” (RPAPL 732 [3].) This unequivocal provision mandates entry of a final judgment of possession in favor of the petitioner upon a tenant’s default (McKinney’s Cons Laws of NY, Book 1, Statutes § 177 [a]). The only discretion afforded by the statute is a stay in issuance of the warrant of eviction for up to ten days to permit the tenant further opportunity to tender the rent due and so avoid eviction (RPAPL 749 [3]; see, J.A.R. Mgt. Corp. v Foster, 109 Misc 2d 693). The question of attorney’s fees, which may be included in the judgment when the terms of the lease so provide, is an entirely separate matter that is the proper subject of a hearing (Simithis v 4 Keys Leasing & Maintenance Co., 151 AD2d 339, 341-342; Cier Indus. Co. v Hessen, 136 AD2d 145).

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