Brusco v. Braun , 605 N.Y.S.2d 13 ( 1993 )

Ellerin, J.,

dissents in a memorandum as follows: I would affirm the dismissal of the petition in this CPLR article 78 proceeding seeking to compel the respondent Judge to sign a default judgment in a residential nonpayment proceeding without conducting the inquest scheduled by the Judge.

It must be emphasized that we are dealing here with a proceeding in the nature of mandamus seeking an order directing the Civil Court Judge assigned to this matter to summarily render judgment in favor of the petitioner. The law is clear, and there is no dispute, that "the extraordinary remedy of mandamus is appropriate to enforce the performance of a ministerial duty”, and "it cannot be used to compel an act or acts * * * in respect to which an officer may exercise judgment or discretion.” (Donaldson v State of New York, 156 AD2d 290, 293, lv dismissed in part and denied in part 75 NY2d 1003.) Thus, the critical question is whether it lies within the discretion of the Civil Court to direct an inquest upon the respondent-tenant’s default.

RPAPL 732 provides in relevant part that if the respondent-tenant answers the petition, the clerk shall fix a date for "trial or hearing” (RPAPL 732 [2]), but that following a default in answering the petition, "the judge shall render judgment in favor of the petitioner and may stay the issuance of the warrant” (RPAPL 732 [3] [emphasis added]).

It has long been held that "to render judgment” is a judicial act, while "to enter [judgment]” is a ministerial one. (Evarts v Kiehl, 102 NY 296, 297.) The use of the words "render judgment” in the statute here applicable indicates that the statute contemplated something more than a merely ministerial act which might be performed by a clerk. I do not believe that these are purely “semantical” distinctions. Even more fundamental to the proper construction of the statute is the absence of any direction that judgment be rendered “summarily”, or words of like effect. Setting the matter down for inquest is consistent with the process of rendering judgment, where the Legislature has not seen fit to direct that judgment issue forthwith.

While the majority construe the statute as requiring a summary entry of judgment without further court procedure, they further conclude that the statute permits the petitioner to cure a defect in the pleadings by the submission of additional affidavits, despite complete silence in the statute itself as to any further proceedings. In advancing a construction which approves of certain supplemental proceedings not set forth in the statute, the majority implicitly recognize that the statute was not and could not have been intended to supplant the discretion normally enjoyed by courts before rendering a judgment. As indicated by the record before us, the holding of inquests, sanctioned by the Administrative Judge of the Civil Court, is apparently due to the numerous errors and omissions which occur in the pleadings in such summary proceedings.

On this appeal, however, it is not necessary to determine whether it is desirable to hold a hearing in every instance or under what circumstances an inquest should, if ever, be held on a default in a nonpayment proceeding pursuant to RPAPL 711 (2). What is dispositive, however, is the conclusion that the statute does not provide for summary disposition as a ministerial act and, therefore, a proceeding in the nature of mandamus does not lie.