Brusco v. Braun

In Brusco v Braun, 84 N.Y.2d 674, [1994], the Court of Appeals was faced with the question of whether a judge confronted with an application for a default judgment under NY RPAPL 732 may hold an inquest before deciding whether to enter the requested judgment. In deciding that the judge may not do so, the Court specifically held that CPLR 3215 does not apply to applications for default judgments in nonpayment proceedings where the tenant has defaulted in answering because that situation is specifically governed by NY RPAPL 732, and therefore held, by implication, that CPLR 3215 does govern all other applications for default judgments under Article 7 of the NY RPAPL, since there is no other section that sets out a specific procedure for the entry of default judgments (Brusco, 84 N.Y.2d at 681). In Brusco, the Court of Appeals held that the trial court, when faced with an application for a default judgment under NY RPAPL 732, must ascertain that the petition is "proper in form and substance [and] demonstrates grounds for relief and the supporting papers establish proper service on the tenant." (Brusco, 84 N.Y.2d at 679) In Brusco, the Court of Appeals specifically noted twice in its decision that, in the case before it, there was an adequate showing for entry of a default judgment since the petition had been verified on personal knowledge ( Brusco,84 N.Y.2d at 681). The Appellate Division decision in Brusco also specifically noted that the petition in that case had been personally verified by the petitioner. (Brusco, 199 A.D.2d 27, 31, 605 N.Y.S.2d 13 [1st Dept 1993]). The Court of Appeals held that when a statute provides that a judge "shall" do an act, "the statute not only commands an action; it dictates the result." The converse to this holding is that when a statute prohibits an action, the court does not have the discretion or, more importantly, the power to do the act expressly prohibited by the statute. The Court of Appeals noted that its holding that inquests were not appropriately required by the Court prior to issuing a default judgment was based in part on the following: Petitioner has complied with all the procedural requirements of RPAPL article 7: the petition was veri-fied upon personal knowledge of the landlord and the notice of petition and petition were personally served upon the tenant. Inasmuch as there was no question regarding the sufficiency of the petition or the service and the tenant failed to answer, respondent was required by RPAPL 732(3) to render judgment in favor of petitioner. (Id. at 681.) In Matter of Brusco v Braun (199 A.D.2d 27 [1st Dept 1993], affd 84 N.Y.2d 674 [1994]), the First Department considered the authority of a judge to schedule an inquest following the tenant's default in answering a non-payment proceeding. Authority for the inquest was claimed to flow from CPLR 3215 (b), which establishes the procedure before the court for obtaining a default judgment generally, and which permits the court to "make an assessment or take an account or proof." A provision in the RPAPL that specifically governs non-payment proceedings, however, states that, upon the tenant's failure to answer, "the judge shall render judgment in favor of the petitioner." (RPAPL 732 [3].) "Applying the rules of statutory construction to the conflicting provisions," the First Department concluded that "it is clear that CPLR 3215 is inconsistent with, and thus superseded by, the provisions of RPAPL 732." ( Brusco v Braun, 199 A.D.2d at 31.) Although the inconsistency identified in Brusco was created by the provision for inquest in subdivision (b) of CPLR 3215, the First Department appears to hold that no provision of CPLR 3215 is applicable to summary proceedings. Specifically, the court's treatment of prior case law clearly indicates that subdivision (f) of CPLR 3215 does not apply. (See id.)