Opinion
33324/2016
11-10-2016
Elliot Place Properties, Inc., Petitioner-Landlord, v. Antonio Perez, Respondent-Tenant.
Attorney for Petitioner: Allison M. Heilbraun, P.C. 73 Market Street, Suite 376 Yonkers, New York 10710 (914) 237-3348 Attorney for Respondent: John Montoute, Esq. Bronx Legal Services 349 E. 149th Street, 10th floor Bronx, New York 10451 (718) 928-3697
Attorney for Petitioner: Allison M. Heilbraun, P.C. 73 Market Street, Suite 376 Yonkers, New York 10710 (914) 237-3348 Attorney for Respondent: John Montoute, Esq. Bronx Legal Services 349 E. 149th Street, 10th floor Bronx, New York 10451 (718) 928-3697 Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Order to Show Cause seeking Vacatur of the Default Judgment and Warrant, Leave to Interpose an Answer and an Order to Correct; or, in the alternative, a Stay of Issuance of the Warrant and Vacatur of the Judgment and Warrant upon Payment: Papers/Numbered Order to Show Cause & Attached Affirmation, Affidavit and Exhibits A-F 1 Affirmation in Opposition 2 Affirmation in Reply 3
Upon the foregoing papers, the Decision and Order on this Motion are as follows: BACKGROUND & PROCEDURAL HISTORY
This is a nonpayment proceeding commenced by Petitioner-Landlord Elliot Place Properties, Inc. against Respondent-Tenant Antonio Perez, the Rent Stabilized tenant at 38-42 Elliot Place, Apt. 2F, Bronx, New York 10452, by Notice of Petition and Petition dated June 1, 2016. The Petition seeks alleged rent arrears of $3272.72 comprised of rent at the rate of $934.52 for the months of March, April and May 2016 plus a balance of $319.16 for the month of February 2016. As sworn to in the process server's Affidavit of Service which was filed with the court on June 16, 2016, personal service of the Notice of Petition and Petition was effectuated on Respondent on June 13, 2016, a judgment was entered on default on July 8, 2016, and a warrant was issued to City Marshal Bia on July 26, 2016. A week later, on August 2, 2016, Respondent pro se filed an Order to Show Cause to vacate the default judgment and restore the case to the court's calendar. Respondent supported his Order to Show Cause with an affidavit in which he acknowledged receipt of the Notice of Petition and Petition and stated, "Need more time, & also rent was paid, but still being charged as nonpaid." The Order to Show Cause was signed and made returnable on August 16, 2016, at which time the case was adjourned to September 14, 2016 for Respondent, now represented by counsel, to serve and file supplemental papers. On September 14, 2016, counsel for the parties entered into a Stipulation under which the Order to Show Cause filed by Respondent pro se was withdrawn, a second Order to Show Cause, prepared by Respondent's attorney and signed by the Court on September 8, 2016, was adjourned to October 20, 2016, Respondent's counsel was given until October 17, 2016 to serve and file a reply to Petitioner's opposition papers, Respondent agreed to tender $1970.52 to Petitioner by September 30, 2016, comprised of three months' rent at the rate of $656.84 per month, without prejudice to Petitioner's claim that the monthly rent was $948.14, and Petitioner agreed to inspect and repair as required by law certain conditions in Respondent's apartment on specified access dates.
Respondent seeks vacatur of the default judgment under CPLR § 5015(a)(1) based upon a showing of excusable default and meritorious defenses. The excuse proffered for the default is that Respondent is elderly (72 years old), disabled due to a heart attack in October 2015 for which he was hospitalized until March 2016, has limited proficiency in the English language, has a limited income of Social Security benefits, had been paying his share of the rent during all months in question at the rate set by the City's Senior Citizen Rent Increase Exemption ("SCRIE") Program in 2010, believed that his SCRIE benefits were still in place and, while he had received the Nonpayment Petition and Notice of Petition, was confused about how to answer it and thought he would "receive another document providing the court date." Respondent's Affidavit in Support of Order to Show Cause, dated September 6, 2016 (hereinafter "Respondent's Affidavit"), at ¶ 13. The three defenses Respondent asserts, which are included in the proposed Answer he seeks leave to interpose upon vacatur of the default judgment, are: (1) "Rent Already Paid"; (2) "Improper Rent Demand"; and (3) "Violation of the Warranty of Habitability". Respondent also requests an Order to correct conditions that he alleged had existed for approximately two months and which he had previously complained about to Petitioner, including a broken front door knob, ceiling falling down in the living room, clogged sink in the bathroom, defective stove and refrigerator and leaks in the bathroom, kitchen and bedroom. In the alternative, Respondent seeks a stay of issuance of the warrant of eviction to provide time to secure retroactive restoration of his SCRIE benefits, which appear to have lapsed due to Respondent's failure to recertify by December 2015 (when he was in the hospital recovering from the heart attack), and vacatur of the judgment and warrant upon payment of the rent arrears.
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 states that because Respondent acknowledged receipt of the Notice of Petition and Petition, and because the Court routinely sends out postcards to Respondents prior to the issuance of a default judgment to apprise them of the pending case, Respondent has not met his burden of showing that his default was excusable. Petitioner argues that, "Had Respondent or his daughter read the Pleadings it is clear that they indicate that an Answer must be interposed with the Court." Affirmation in Opposition of Allison Heilbraun, dated September 9, 2016 (hereinafter "Affirmation in Opposition"), at ¶ 8. With regard to meritorious defenses, without discussing why any of the three defenses listed in Respondent's proposed Answer are insufficient, Petitioner argues that Respondent has failed sufficiently to document the efforts being taken to secure retroactive reinstatement of Respondent's SCRIE benefits, and that this should result in a finding that Respondent has failed to establish a meritorious defense. Petitioner also argues that Respondent should not be permitted to interpose an Amended Answer under CPLR § 3025, as Petitioner would be severely prejudiced by the vacatur of the judgment it secured on default "as it has already obtained a valid judgment and warrant in this proceeding and must not be required to relitigate a proceeding that has been pending for four (4) months." Affirmation in Opposition at ¶ 6. Petitioner also argues that there is no basis for ordering it to address Respondent's need for repairs at this juncture. Petitioner asserts that a review of the New York City Department of Housing Preservation and Development's ("HPD") website "reveals that 5 'B' violations have been placed on August 31, 2016" and that Respondent appears to be "Clearly acting in bad faith" by using "the month that was afforded to him as a courtesy in the adjournment to have violations placed." Affirmation in Opposition at ¶ 20. Petitioner's opposition papers do not address Respondent's claim in his affidavit that he had complained about the conditions in his apartment approximately two months earlier, and do not include an affidavit from anyone with personal knowledge of the facts of this case.
This is a misstatement; in actuality, the information available on HPD's website, which the court takes judicial notice of pursuant to Multiple Dwelling Law § 328(3), indicates that while three "B" violations for hazardous conditions in Respondent's apartment were reported on August 31, 2016 for: (1) repairing the source and abating the evidence of a water leak in the kitchen ceiling; (2) repairing and painting the kitchen ceiling and walls; and (3) repairing and painting the ceiling and walls in another room, two months earlier, on June 23, 2016, HPD already had issued another four "B" violations, and sent out Notices of Violation to petitioner, for: (1) repairing the source and abating the evidence of a water leak in the kitchen ceiling; (2) repairing and painting the kitchen ceiling; and repairing or replacing the (3) carbon monoxide and (4) smoke detectors. In any event, the parties entered into a Stipulation on September 14, 2016 under which, inter alia, Petitioner agreed to inspect Respondent's apartment and make necessary repairs.
Petitioner also argued that the pending Order to Show Cause was improper because a previously filed Order to Show Cause was still pending — the one filed by Respondent before retaining counsel - making the current one "not ripe for adjudication". The Court does not need to address this issue, however, as it was resolved by the parties in a Stipulation on September 14, 2016 which, inter alia, withdrew Respondent's original Order to Show Cause.
On reply, Respondent's attorney argues that while Respondent did acknowledge receipt of the Notice of Petition and Petition, he and his daughter did not know how to respond to the papers, and that his default was not willful or deliberate but instead the result of him being "an elderly, disabled, LEP individual being confused by the Pleadings." Reply in Opposition to Petitioner's Opposition Affirmation of John Montoute, dated October 18, 2016 (hereinafter "Reply Affirmation"), at ¶ 15. Respondent argues that Petitioner did not address the defenses raised - that the rent demand and Petition are fatally flawed and that Petitioner has breached the warranty of habitability — and points out that "Instead, Petitioner focuses on Bronx Legal Services advocacy to SCRIE, which is irrelevant and not dispositive because nowhere is it alleged to be a meritorious defense with regards to the default." Reply Affirmation at ¶ 24. DISCUSSION
Under CPLR § 5015(a)(1), a default judgment may be vacated where the moving party demonstrates a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the proceeding. Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 NY2d 138, 501 N.Y.S.2d 8 (1986); Goldman v. Cotter, 10 AD3d 289, 781 N.Y.S.2d 28 (1st Dep't 2004). What constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court. Grutman v. Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527, 616 N.Y.S.2d 68 (2nd Dep't 1994); 38 Holding Corp. v. New York, 179 AD2d 486, 578 N.Y.S.2d 174 (1st Dep't 1992). The determination of whether a reasonable excuse has been offered is sui generis and should be based on all relevant factors, among which are the length of the delay chargeable to the movant, whether the opposing party has been prejudiced, whether the default was willful or deliberate, and the strong public policy favoring the resolution of cases on the merits rather than on default. Li Xian v Tat Lee Supplies Co., Inc., 126 AD3d 424, 2 N.Y.S.3d 344 (1st Dep't 2015); Chevalier v. 368 E. 148th Street Associates, LLC, 80 AD3d 411, 914 N.Y.S.2d 130 (1st Dep't 2011), citing Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877, 800 N.Y.S.2d 613 (1st Dep't 2005); Guzetti v. City of New York, 32 AD3d 234, 820 N.Y.S.2d 29 (1st Dep't 2006); Silverio v. City of New York, 698 N.Y.S.2d 669, 266 AD2d 129 (1st Dep't 1999); Fromartz v. Bodner, 266 AD2d 122, 698 N.Y.S.2d 142 (1st Dep't 1999).
Litigants may be relieved of their defaults even when represented by counsel and the default is due to "law office failure", Mejia v. Ramos, 113 AD3d 429, 979 N.Y.S.2d 281 (1st Dep't 2014)("the belief of plaintiffs' counsel that he thought an adjournment had been granted, although not the strongest argument, amounts to a law office failure 'which is a recognized excuse for vacatur of a default'"); Xiao Jia Lin v. Engleton, 121 AD3d 483, 993 N.Y.S.2d 493 (1st Dep't 2014)(upholding the lower court's finding of a reasonable excuse for defendant's counsel's default in opposing plaintiff's motion for summary judgment, and noting that the lower court "exercised its discretion in a provident manner"); Chevalier v. 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 914 N.Y.S.2d 130 (1st Dep't 2011)(excuses asserted by litigant's prior counsel found to be sufficient to vacate the default "because any law office failure was inadvertent", especially in light of the short delay caused by the default, the lack of prejudice to the other party and public policy concerns), and a motion court's failure to vacate a default in such circumstances may constitute reversible error, see, e.g., Chelli v. Kelly Group, P.C., 63 AD3d 632, 883 N.Y.S.2d 26 (1st Dep't 2009)(reversing lower court's order denying defendants' motion to vacate a default order entered five weeks earlier where defendants "demonstrated their failure to appear was neither willful nor part of a pattern of dilatory behavior, but was purely the result of inadvertent law office failure on the part of the attorneys to whom they had entrusted their defense"); Berardo v. Guillet, 86 AD3d 459, 926 N.Y.S.2d 521 (1st Dep't 2011)(reversing lower court's denial of motion to vacate a judgment entered on default where the moving party's attorney "impacted his ability to defend the summary judgment motion and/or caused his law office failure"); FEB Realty LLC v. Public Adm'r for NY County, 45 Misc 3d 131(a), 3 N.Y.S.2d 284 (A.T. 1st Dep't 2014)(reversing Housing Court Judge's order and granting motion to vacate default judgment in eviction proceeding where the default "was not willful or deliberate but rather the result of her (now former) counsel's misguided expectation that his request to adjourn the return date of petitioner's motion would be granted").
Respondent has made a sufficient showing on both prongs of the 5015(a)(1) test to warrant vacatur of the default judgment under the facts and circumstances of this case. With regard to a reasonable excuse for the default, Respondent alleges in his sworn affidavit that while he did receive the Notice of Petition and Petition, he thought he would receive another document advising him when to appear in court and did not know that he was required to appear at the courthouse and submit an oral or written answer in response to those papers in order to secure such a court date and prevent a default. Given the other unrefuted circumstances — including that the tenant is elderly, living on a fixed income of Social Security benefits, has limited English language proficiency, is in poor health subsequent to being discharged from a lengthy hospitalization earlier in the year, and had been paying his share of the rent during all months listed as unpaid in the Petition in a timely manner and at the rate he believed to be correct under the SCRIE Program — the court finds there to be an adequate showing of a reasonable excuse for Respondent's default under CPLR § 5015(a)(1). See, e.g., Matter of Matias v New York City Hous. Auth., 46 Misc 3d 1213(A), 9 N.Y.S.3d 594 (Sup. Ct. NY Co. 2015)(default vacated where tenant "was confused and did not even understand that a hearing was scheduled for May 22, 2013, as opposed to a mere 'meeting'").
Whereas a Notice of Petition in a Holdover Proceeding specifies the date, time and place of the hearing on the Petition, RPAPL § 731(2), the Notice of Petition in a Nonpayment Proceeding filed in New York City does not include such information and, instead, in language mandated by the Uniform Civil Rules for the New York City Civil Court, 22 N.Y.C.R.R. § 208.42(d), advises the Respondent in the third paragraph of the Notice "that within five (5) days after service of this Notice of Petition upon you, you must answer, either orally before the clerk of this Court at 1118 Grand Concourse, Bronx County, City and State of New York, or in writing by serving a copy thereof upon the undersigned attorney for the petitioner, and by filing the original of such answer, with proof of service thereof, in the Office of the Clerk" after which "the Clerk will fix and give notice of the date for trial or hearing which will be held not less than three (3) nor more than eight (8) days thereafter, at which you must appear". While the level of difficulty of this text, and the level of education needed to comprehend its import and meaning, no doubt can be ascertained by running it through a readability formula, even without undertaking such an analysis it is not surprising that Respondent was confused by the Notice of Petition and thought he would receive another document advising him of his date to appear in court. See also, generally, Sendhil Mullainathan & Eldar Shafir, Scarcity, The New Science of Having Less and How it Defines Our Lives 83-84 [2013]("The hard-to-read disclosures on low-cost mortgage forms will be particularly misunderstood (and carry bigger consequences) for those living with financial scarcity.").
Given that defaults by litigants represented by counsel may be vacated due to errors made in day-to-day law office practice, a fortiori a default by a litigant without an attorney who does not understand court rules and procedures should be excused under the circumstances set forth in this case. This is especially so here where the time that elapsed between entry of the default and the defaulting party's appearance in court with a request to open that default was minimal: the court entered a default judgment against Respondent on July 8, 2016, the warrant of eviction issued on July 26, 2016 and Respondent appeared in court to take out an Order to Show Cause seeking vacatur of the default one week later, on August 2, 2016. Nor was the default willful or deliberate: the Court finds Respondent's explanation for why he did not file an answer after he received the Notice of Petition and Petition to be reasonable, and finds the resulting default therefore to be inadvertent, in light of the circumstances. With regard to alleged prejudice to Petitioner, simply because Petitioner secured a valid judgment and warrant does not constitute the type of prejudice that supports a denial of a request to vacate a default. Moreover, vacatur of the default does not require Petitioner "to relitigate a proceeding that has been pending for four (4) months", Affirmation in Opposition at ¶ 6; Respondent appeared in court less than two months after the case was commenced and, as can be seen from the timeline set forth above, very little litigation activity had taken place at the time Petitioner secured its default judgment on July 8, 2016.
Resolution of the issues raised in this proceeding should not "be made to hinge on 'gotcha' litigation tactics," FS 41-45 Tiemann Place LLC v. Estrella, 38 Misc 3d 29, 958 N.Y.S.2d 860 (App. Term 1st Dep't 2012), especially in light of 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 N.Y.S.2d 130 (1st Dep't 2011), citing Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877, 800 N.Y.S.2d 613 (1st Dep't 2005); Guzetti v. City of New York, 32 AD3d 234, 820 N.Y.S.2d 29 (1st Dep't 2006); Silverio v. City of New York, 698 N.Y.S.2d 669, 266 AD2d 129 (1st Dep't 1999); Fromartz v. Bodner, 266 AD2d 122, 698 N.Y.S.2d 142 (1st Dep't 1999), and disfavoring forfeiture of leases, Village Ctr. for Care v Sligo Realty & Serv. Corp., 95 AD3d 219, 943 N.Y.S.2d 11 (1st Dep't 2012); Sharp v Norwood, 223 AD2d 6, 11, 643 N.Y.S.2d 39 (1st Dep't 1996), affd 89 NY2d 1068, 659 N.Y.S.2d 834 (1997).
As explained by the Appellate Division, First Department in 38 Holding Corp. v. New York, 179 AD2d 486, 487, 578 N.Y.S.2d 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 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).
Further, the Court finds that the three defenses Respondent includes in his proposed Answer are all viable and of demonstrable merit, sufficient to meet the second prong of the 5015(a)(1) test. With regard to the first and second of those defenses — "Rent Already Paid" and "Improper Rent Demand" — whereas the Rent Demand and Petition allege a monthly rent of $934.52 and unpaid rent in that amount for each of the months of March, April and May 2016, as well as a balance of $319.16 due for the month of February 2016, Respondent alleges that he paid rent of $656.84 - the rate he thought was due - for each of the months of February, March, April and May 2016 (as well as for January, June, July and August 2016), with each such payment dated within the first week of each such month (Exhibit F to Respondent's Affidavit). Neither the predicate rent demand nor the Nonpayment Petition acknowledges receipt of Respondent's payments made in and for each month listed in those documents, calling into question whether or not the petition is based on a rent demand that "clearly informs the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period." 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 848 N.Y.S.2d 37 (1st Dep't 2007), quoting Schwartz v Weiss-Newell, 87 Misc 2d 558, 561, 386 N.Y.S.2d 191 (Civ. Ct. NY Co. 1976). With regard to Respondent's proposed third defense of breach of the warranty of habitability, this claim is well supported by Respondent's sworn allegations in his affidavit, corroborated by the violations listed on HPD's website, see fn 1, supra.
After finding that Respondent has met the two-pronged test of CPLR § 5015(a)(1) and vacating the default judgment, it is appropriate for the Court also to allow Respondent's proposed Answer to be deemed duly served and filed. See, e.g., Harcztark v. Drive Variety, Inc., 21 AD3d 876, 800 N.Y.S.2d 613 (2d Dep't 2005); Mendoza v. Bi-County Paving, 227 AD2d 302, 642 N.Y.S.2d 884 (1st Dep't 1996); Junior v. New York, 85 AD2d 683, 445 N.Y.S.2d 503 (2d Dep't 1981); 1234 Broadway LLC v Caroline K., 47 Misc 3d 673, 7 N.Y.S.3d 839 (Civ. Ct. NY Co. 2015); Cino v Creighton, 2012 NY Misc. LEXIS 3349, 2012 NY Slip Op 31837(U) (Sup. Ct. NY Co. July 3, 2012). Were the Court to deny Respondent's request for leave to file an answer upon vacatur of the default, the value of such vacatur in furtherance of the State's strong public policy of allowing cases to be heard on their merits would be undermined. Petitioner's argument to the contrary under CPLR § 3025 is misplaced; while that section addresses "Amended and supplemental pleadings", Respondent, who failed to answer the Petition leading to the default judgment which the Court is now vacating, seeks permission to file an initial — albeit late — answer, not an amended one. CONCLUSION
For the foregoing reasons, Respondent's Order to Show Cause is granted to the extent of vacating the July 8, 2016 default judgment and warrant entered thereupon and deeming duly served and filed the proposed Answer which is annexed as Exhibit E to Respondent's moving papers. As the parties stipulated on September 14, 2016 that Petitioner would inspect and repair as required by law the conditions Respondent alleged to exist in his apartment, that portion of Respondent's motion seeking an Order to Correct is denied with leave to renew if the repairs are not completed. This proceeding shall be restored to the Court's calendar on January 6, 2017 at 9:30 a.m. for all purposes. This constitutes the Decision and Order of this Court. Dated: November 10, 2016 Bronx, New York _________________________ Diane E. Lutwak, Hsg. Ct. J.