Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Order to Show Cause seeking Vacatur of the Default Judgment and Warrant of Eviction and Petitioner's Cross-Motion for Use and Occupancy:

Upon the foregoing papers, the Decision and Order on Respondent's motion to vacate the [*2]judgment entered on default after an inquest, and Petitioner's cross-motion for use and occupancy, which are consolidated herein for determination, are as follows.

This is a holdover proceeding commenced by Petitioner Bronx Park Phase II Preservation, LLC, a federally-subsidized, State-supervised, limited profit housing company, against Respondent V.C. who is the tenant at 1880 Valentine Avenue, Apt. 406, Bronx, New York 10457. The Petition is predicated on a Notice to Cure and Notice of Termination which allege that Respondent engaged in specified "anti-social, disruptive, destructive, dangerous and/or illegal behavior in and around the building" constituting both a violation of a substantial obligation of the tenancy and nuisance.

The Petition was originally returnable on October 17, 2016, on which date the case was adjourned to January 19, 2017 for trial. A notation on the court file jacket indicates that Respondent was "to seek legal in interim". On January 19, 2017 Respondent failed to appear and the case was adjourned to February 23, 2017 for inquest. After inquest, Housing Court Judge Spears issued a Decision/Order dated March 21, 2017 awarding a final judgment of possession to Petitioner with issuance of the warrant of eviction forthwith, no stay of execution, but with the requirement that, "The marshal must notify APS before scheduling any eviction."

Two weeks later, on April 5, 2017, the court signed an Order to Show Cause, prepared by The Bronx Defenders ^[FN1] , seeking vacatur of the default judgment, a referral of Respondent to the City's Adult Protective Services (APS) agency and appointment of a guardian ad litem (GAL). On the return date of April 20, 2017, Judge Spears issued a Decision/Order appointing a GAL for Respondent and adjourning the proceeding to June 8, 2017 for the GAL to appear and for Petitioner to oppose that portion of the motion seeking to vacate the judgment and warrant, with opposition to be served and filed by May 19, 2017. The court appointed Della DeKay as Respondent's GAL by Order dated May 3, 2017. As of June 8, 2017, Petitioner had not yet served and filed its opposition papers and The Bronx Defenders' motion was adjourned to July 14, 2017. On June 21, 2017 Petitioner filed opposition and a cross-motion seeking use and occupancy. The Bronx Defenders filed an Affirmation in Reply and Opposition on July 11 and on July 14 the motion and cross-motion were adjourned to August 10. During argument on August 10, Bronx Defenders attorney Graham F. Dumas advised the court that Respondent's sister had retained him to represent Respondent. Mr. Dumas further reported that Respondent was currently an inpatient at South Beach Psychiatric Center, and that he was prepared to present medical records in support of the motion, if this could be done in camera and with a protective order sealing the file. After a discussion with counsel for both sides, the court determined that it was unnecessary to review the medical records and incorporate them into the court file as Petitioner's counsel had not opposed the appointment of a GAL and did not dispute that Respondent was an adult who was incapable of adequately protecting his rights in this proceeding or that he was currently hospitalized.

Respondent seeks vacatur of the default judgment under CPLR § 1203. Respondent's [*3]counsel asserts that he himself appeared on the second court date of January 19, 2017, although Respondent did not, that he "discussed the matter with Petitioner's counsel, and stated, in sum and substance, that [Respondent] required a guardian ad litem due to his diminished capacity," and that he "attempted to appear on the record as a friend of the court to request that [Respondent] be referred to Adult Protective Services ('APS') for appointment of a guardian ad litem." Affirmation in Support of Graham F. Dumas, Esq. at ¶ 13-14. However, Respondent had not authorized him to disclose any information about his mental health to the Court, and the Court declined to make the APS referral or appoint a GAL for Respondent at that time. Respondent's attorney argues that the court should have adjourned the proceeding and referred Respondent to APS, and that Petitioner should have consented to such an adjournment. Instead, the court set the case down for inquest on February 23 and, in doing so, "noted that [Respondent] had appeared on the first court date, concluding that this was evidence supporting [Respondent's] competence." Affirmation in Support at ¶ 17.^[FN2] As described above, the court entered a default judgment after holding the inquest.

In opposition, Petitioner argues that the default judgment should not be vacated as Respondent has failed to establish an excusable default and meritorious defense as required by CPLR § 5015(a)(1). Petitioner argues that unlike the cases cited by Respondent's attorney, here Respondent has failed to provide proof of the alleged incompetence, or that Petitioner knew or should have known of it. Affirmation in Opposition of Arianna Gonzalez-Abreu, Esq. at ¶ 33. Further, Respondent's motion is based solely on an attorney's affirmation, which, Petitioner argues, does not "explain why [Respondent's] diminished capacity led to his failure to appear in court" and that Respondent "was clearly aware of the pendency of this proceeding, given that he appeared on the first court date".^[FN3] Id. at ¶ 28. Further, Petitioner argues that Respondent failed to state any defenses. Id. at ¶¶ 30-31. In addition, Petitioner argues that there is no basis to vacate or stay execution of the warrant of eviction, and that "a balancing of the equities does not tip in the Respondent's favor." Id. at ¶¶ 38-40.

In its cross-motion seeking use and occupancy, Petitioner asserts that Respondent owes $2730 in past due use and occupancy through June 2017, at the monthly rate of $286.^[FN4] Petitioner [*4]argues that RPAPL §§ 745(2) and 741(5) and Real Property Law § 220 permit Petitioner to seek a money judgment, eviction or both due to Respondent's failure to pay interim use and occupancy. Alternatively, Petitioner seeks an order directing Respondent to pay all outstanding use and occupancy by a date certain and to pay ongoing use and occupancy as it comes due throughout the pendency of this proceeding.

On reply, Respondent's attorney points out that Petitioner failed to address Respondent's argument that the default judgment should be vacated under CPLR Article 12, and argues that CPLR § 5015(a)(1) does not apply.^[FN5]

Under CPLR § 1201, the court must appoint a guardian ad litem for, inter alia, "an adult incapable of adequately prosecuting or defending his rights." Once a GAL has been appointed, the court has the authority to vacate a default judgment under CPLR § 1203, which provides in its second (and last) sentence that, "No default judgment may be entered against an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed unless twenty days have expired since the appointment." The Advisory Committee Notes to CPLR § 1203 explain the purpose of this provision as follows: "The last sentence is new. It will give the guardian ad litem of a person incapable of adequately protecting his rights an opportunity to prepare the case and decide upon a course of action."

A default judgment may be invalidated under CPLR § 1203 even where it was entered before the appointment of a GAL and, contrary to Petitioner's argument, CPLR 5015(a)(1) is not the appropriate standard to use; as explained by the Honorable Lucy Billings in New York Life Ins Co v VK (184 Misc 2d 727, 736-37, 711 NYS2d 90, 97 [Civ Ct NY Co 1999]), "wherever the court finds a party incapable of adequately protecting her rights under CPLR 1201, CPLR 1203 supplants CPLR 5015(a), because an incapacitated person cannot knowingly and intelligently waive a substantive legal right, including the gravamen of a defaulted proceeding. No default judgment is valid against any party for whom a guardian ad litem is needed, until the guardian ad litem is appointed, even if the judgment preceded the court's determination of disability. Palaganas v DRC Industries, Inc (407 NYS2d 170, 64 AD2d 594 [1st Dep't 1978]); Sarfaty v Sarfaty (83 AD2d 748, 749, 443 NYS2d 506, 507 [4th Dep't 1981])." See also, e.g., Kalimian v Driscoll (1991 NY Misc LEXIS 854, 208 NYLJ 13 [App Term 1st Dep't 1991]).

Further, "Even without a motion, the court's power to open its judgments for good cause and in furtherance of justice requires no less." New York Life Ins Co v VK, supra (184 Misc 2d at 737-78, 711 NYS2d at 98). Compare Inwood Ventura Assoc, LLC v Bonomme (51 Misc 3d [*5]1214[A], 37 NYS3d 207 [Civ Ct NY Co 2016])(after appointing a GAL for an evicted respondent-tenant in a holdover proceeding, the court vacated the warrant of eviction, restored the respondent-tenant to possession and ordered payment of use and occupancy, but denied without prejudice the additional request to vacate the default judgment, to give the GAL "an opportunity to investigate and assert any meritorious defenses, or alternatively seek any relief in regards to a cure").

Here, the court by Order of Judge Spears dated April 20, 2017 has already determined that Respondent is "an adult incapable of adequately prosecuting or defending his rights." CPLR § 1201. Implicit in this Order is the Court's conclusion that Respondent's condition "impedes [his] ability to protect [his] rights." New York Life Ins Co v VK (184 Misc 2d at 734, 711 NYS2d at 96). Vacatur of the default judgment is warranted under CPLR § 1203 to provide Respondent, who now has both a GAL and an attorney in place, the opportunity "to prepare the case and decide upon a course of action." Advisory Committee Notes to CPLR § 1203. The within motion was brought promptly — just two weeks after the court issued its decision and order dated March 21, 2017 granting a default judgment — and Petitioner cannot claim prejudice due to the passage of time following the entry of that judgment after inquest. Most of that delay is due to its own failure to submit opposition papers promptly. Further, it is uncontested that Petitioner has had notice of Respondent's mental health issues since at least January 19, 2017 ^[FN6] when The Bronx Defenders first attempted to bring them to the attention of its attorney and to secure a court referral of Respondent to APS. While the Court did not make such a referral at that time, its Order of March 21, 2017 awarding a final judgment of possession to Petitioner after inquest on February 23, 2017 did include the direction that, "The marshal must notify APS before scheduling any eviction."

Vacating the default judgment is also warranted by the strong public policies in this State favoring the resolution of cases on the merits rather than on default, Chevalier v 368 E 148th Street Associates, LLC (80 AD3d 411, 914 NYS2d 130 [1st Dep't 2011]), citing Harcztark v Drive Variety, Inc (21 AD3d 876, 876-877, 800 NYS2d 613 [1st Dep't 2005]); Guzetti v City of New York (32 AD3d 234, 820 NYS2d 29 [1st Dep't 2006]); Silverio v City of New York (698 NYS2d 669, 266 AD2d 129 [1st Dep't 1999]); Fromartz v Bodner (266 AD2d 122, 698 NYS2d 142 [1st Dep't 1999]), and disfavoring forfeiture of leases, Village Ctr for Care v Sligo Realty & Serv Corp (95 AD3d 219, 943 NYS2d 11 [1st Dep't 2012]); Sharp v Norwood (223 AD2d 6, 11, 643 NYS2d 39 [1st Dep't 1996], aff'd 89 NY2d 1068, 659 NYS2d 834 [1997]).

As explained by the Appellate Division, First Department in 38 Holding Corp v New York (179 AD2d 486, 487, 578 NYS2d 174, 175 [1st Dep't 1992]):

Repeatedly, it has been held that "it is the general policy of the courts to permit actions to be determined by a trial on the merits wherever possible and for that purpose a liberal policy is adopted with respect to opening default judgments in furtherance of justice to [*6]the end that the parties may have their day in court to litigate the issues . . .". Matter of Raichle, Moore, Banning & Weiss v Commonwealth Fin Corp (14 AD2d 830, 831 [4th Dep't 1961]); Cappel v RKO Stanley Warner Theaters (61 AD2d 936, 937 [1st Dep't 1978]); Aces Mechanical Corp v Cohen Bros Realty & Constr Corp (99 AD2d 455, 456 [1st Dep't 1984]); and Scott v Allstate Ins Co (124 AD2d 481, 484 [1st Dep't 1986]).

Turning to Petitioner's cross-motion, the court has broad discretion to award use and occupancy upon such terms as are reasonable under the circumstances. Shoshany v Goldstein (20 Misc 3d 687, 860 NYS2d 908 [Civ Ct NY Co 2008]), citing Alphonse Hotel Corp v 76 Corp (273 AD2d 124, 710 NYS2d 890 [1st Dep't 2000 mem]). Payment of use and occupancy pendente lite, "'accommodates the competing interests of the parties in affording necessary and fair protection to both' and preserves the status quo until a final judgment is rendered." MMB Assoc v Dayan (169 AD2d 422, 564 NYS2d 146, 147 [1st Dep't 1991]), quoting Haddad Corp v Redmond Studio (102 AD2d 730, 731, 476 NYS2d 864 [1st Dep't 1984]). Use and occupancy may be awarded on an interim basis, without a hearing, and the court may look to the most recently charged amount of rent to set the rate. 43rd St Deli, Inc v Paramount Leasehold, LP (107 AD3d 501, 967 NYS2d 61 [1st Dep't 2013]); Haddad Corp v Redmond Studio, supra; 217 E 82nd St Co v Perko (10 Misc 3d 146[A], 814 NYS2d 893 [App Term 1st Dep't 2006]); 3950 Blackstone Assoc LLC v Goldstein (39 Misc 3d 1237[A], 2013 NY Slip Op 50917[U] [Civ Ct Bx Co 2013]), citing Andejo Corp v South Street Seaport Limited Partnership (35 AD3d 174, 825 NYS2d 50 [1st Dep't 2006]).

The court's authority to direct a deposit or payment of use and occupancy is further governed by RPAPL § 745(2), see, e.g., La Fabrique Owners Corp v La Fabrique LLC (16 Misc 3d 130[A], 841 NYS2d 826 [App Term 1st Dep't 2007]); Shoshany v Goldstein, supra; see also Front St Rest Corp v Ciolli (55 Misc 3d 104, 49 NYS23d 811 [App Term 2nd, 11th and 13th Jud Dists 2017]), which requires the court, "upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner," to direct the respondent, upon the petitioner's application, to deposit with the court all rent or use and occupancy pendente lite, dating back to when the petition and notice of petition were served upon the respondent. Where the premises are located in a building containing twelve or fewer units, the court may direct the respondent to pay any undisputed sum directly to the petitioner. RPAPL § 745(2)(a)(iv).

Respondent has not made two requests for an adjournment. At most, the only adjournment that could be chargeable to Respondent was when the court adjourned the case on October 27, 2016 to January 19, 2017 for trial ^[FN7] and for Respondent to seek legal assistance in the interim. However, that first adjournment was for more than 30 days; and even if the first adjournment is charged to Petitioner or deemed to be on consent ^[FN8] , an additional period of more [*7]than 30 days passed between January 19 when Respondent defaulted and February 23, the date to which the court adjourned the proceeding for inquest. There is no indication that this second adjournment was made at Petitioner's request. Even if this time period were excluded based upon the court's subsequent finding that Respondent needs a GAL to adequately protect his rights, the adjournment of these motions on July 14 to August 10, and then the additional time that has passed since August 10 and will pass by the time this case returns to the court's calendar on September 13 (see below), adds up to well over 30 days that is not chargeable to Petitioner. Accordingly, Petitioner has made a proper request that use and occupancy be ordered pendente lite ^[FN9] . To accommodate and protect both parties and to preserve the status quo until this proceeding is resolved, the court directs Respondent to pay use and occupancy from October 2016 forward, unless, after Respondent serves and files his Answer (see below), the court finds that Respondent has properly interposed one or more of the four defenses listed in RPAPL § 745(2)(a).

For the foregoing reasons, Respondent's Order to Show Cause is granted to the extent of vacating the default judgment entered after inquest, and the warrant of eviction based thereon, and restoring the matter to the court's calendar for conference on September 13, 2017. Further, Respondent through counsel must serve and file an Answer to the Holdover Petition by September 8, 2017. Finally, Respondent shall commence payment of use and occupancy at the rate of $236 per month ^[FN10] , retroactive to October 2016, unless the court finds pursuant to RPAPL § 745(2)(a) that Respondent has established a defense that precludes the award of use and occupancy. However, in light of the undisputed representation made during oral argument on August 10 that Respondent is currently hospitalized, the setting of the payment deadline for the initial payment will wait until the conference on September 13, 2017. This constitutes the Decision and Order of this Court, copies of which will be made available to the parties' attorneys in the courthouse. Respondent's counsel is directed to provide a copy of this Decision and Order to Della DeKay, Respondent's GAL, forthwith.