Opinion
13050/2016
12-06-2016
Greenstone 26 LLC, Petitioner, v. Cynthia Woods, Respondent (Tenant of Record), "John Doe" and "Jane Doe," Respondents-Occupants, New York City Housing Authority Section 8, Respondent.
Attorney for Petitioner: Brian A. Stark, Esq. 1325 Castle Hill Avenue Bronx, New York 10462-4806 (718) 792-1200 Attorney for Respondent: Simone M. Meyer, Esq. The Legal Aid Society Bronx Neighborhood Office 260 E. 161st Street Bronx, New York 10451 (646) 340-1947
Attorney for Petitioner: Brian A. Stark, Esq. 1325 Castle Hill Avenue Bronx, New York 10462-4806 (718) 792-1200 Attorney for Respondent: Simone M. Meyer, Esq. The Legal Aid Society Bronx Neighborhood Office 260 E. 161st Street Bronx, New York 10451 (646) 340-1947 Diane E. Lutwak, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of the Respondent's Order to Show Cause to Resetore to Possession filed pro se and supplemental Motion to Vacate Default Judgment, Restore Case to Calendar, Appoint Guardian Ad Litem and Serve and File an Answer filed by Respondent's Counsel: Papers Numbered Order to Show Cause to Restore to Possession With Attached Affidavit 1 Notice of Motion to Vacate Default Judgment, Restore Case to Calendar & Appoint Guardian Ad Litem With Attached Affirmation & Exhibits A-C 2 Affirmation in Opposition to Respondent's Motion 3 Respondent's Closing Brief 4
Upon the foregoing papers, and after a hearing, the Court's decision is as follows. PROCEDURAL HISTORY
This is a holdover eviction proceeding brought by Petitioner Greenstone 26 LLC against Respondent Cynthia Woods, a Rent Stabilized tenant whose rent is subsidized by a federal "Section 8" housing voucher administered by the New York City Housing Authority's ("NYCHA") Leased Housing Department. By "Ten (10) Day Notice to Cure" dated January 5, 2016, Petitioner notified Respondent that she was violating a substantial obligation of her tenancy, certain provisions of the Rent Stabilization Code and the "HAP Contract" (Housing Assistance Payments Contract) "by failing to recertify with NYCHA Section 8." Attached to and referenced in Petitioner's Notice to Cure was a copy of a letter from NYCHA to Petitioner dated January 1, 2015, on NYCHA form # 059.401 (Rev. 5/18/12)v4, entitled "Landlord Notice of Possible Termination". NYCHA's letter to Petitioner references Respondent Cynthia Woods, with Voucher # 0300465, and reads as follows:
Please be advised that the Section 8 subsidy for the above mentioned tenant will be terminated effective 02/15/2015 due to his/her failure to: Annual Recertification
Note: In order to avoid termination of the Section 8 subsidy, your tenant
must comply within 45 days of the notice of termination dated 01/01/2015 If you have any questions regarding this matter please call the Customer Contact Center.
Petitioner's Notice to Cure further advised Respondent that she was being given until January 25, 2016 to cure the violation and, if she did not, she would be sent a tenancy termination notice which would be followed by the commencement a summary holdover proceeding in the Housing Part of the Civil Court seeking her eviction. Thereafter, Petitioner advised Respondent by "Seven (7) Day Notice of Termination" dated January 26, 2016 that her tenancy was being terminated due to her failure to cure the alleged violation of her lease agreement and the HAP Contract and that if she failed to vacate the premises on or before February 15, 2016 a summary holdover proceeding would be instituted against her. Petitioner followed up on its Notice of Termination by serving and filing a Holdover Notice of Petition and Petition dated February 16, 2016, returnable in this Court on March 8, 2016, attached to which were copies of both predicate notices, the NYCHA letter dated January 1, 2015 and a letter from Petitioner to NYCHA's Law Department, dated January 5, 2016, advising NYCHA that Petitioner would be commencing a holdover proceeding against Respondent seeking to evict her on the grounds of failure to recertify with NYCHA Section 8.
Respondent failed to appear in court on March 8, 2016 and the case was set down for an inquest on March 28, 2016. On that date the case was adjourned to April 25, 2016, an inquest was held, after which the Court issued a decision and order dated April 25, 2016, and a judgment dated April 26, 2016, awarding a default judgment of possession to Petitioner and permitting a warrant of eviction to issue with execution of the warrant stayed 10 days, to and including May 5, 2016. Notations on the court file that appear to have been made on April 25, 2016 indicate that Petitioner's managing agent Fei Yi Ma testified at the inquest on Petitioner's behalf and three documents were admitted into evidence: a certified copy of the deed; a Section 8 letter of termination referencing a termination date of 2/15/15; and a certified copy of the Multiple Dwelling Registration statement. The notes also state "non-military for WOODS", "over 14,000 owed to date" and "no rent since Feb 2015".
On July 18, 2016 the court issued a warrant of eviction to City Marshal Villanueva. On August 4, 2016, Respondent pro se took out an Order to Show Cause supported by her affidavit in which she asserted: "Section 8 pays All of rent 9.56 month." In the margin on the left side of the form affidavit there is a handwritten notation: "Scheduled today". The Court denied that Order to Show Cause on the return date of August 18, 2016 upon Respondent's failure to appear. Respondent took out a second Order to Show Cause on September 7, 2016, this time seeking to be restored to possession as she had been evicted. Again she asserted in her supporting affidavit: "Do not owe rent. Section 8 pays all rent." This second Order to Show Cause was returnable September 9, 2016, on which date Respondent appeared with counsel and the proceeding was adjourned by Stipulation to September 16, 2016 for Respondent to subpoena NYCHA. Respondent was permitted to have limited access to the apartment to retrieve certain possessions, "including medication and medical instruments." That same day, the court signed a subpoena for NYCHA to produce Respondent's tenant file in court. The proceeding was adjourned on September 16 to September 23 for NYCHA to appear, and then to September 29, by which time Respondent's newly-retained counsel had served and filed a motion returnable that day seeking vacatur of the default judgment under CPLR § 5015(a)(1); leave to serve and file an answer under CPLR 3025 and to deem a proposed answer duly served and filed; appointment of a guardian ad litem for Respondent under CPLR §§ 1201 and 1202; and an order either restoring Respondent to possession of the premises forthwith or else continuing the stay of re-letting of the premises and removal of Respondent's possessions until any arrears owed are paid. Petitioner's attorney requested an adjournment to October 6, 2016 to prepare opposition papers, which he did, dated October 5, 2016, the case was adjourned several more times for various reasons and then the court held a hearing on November 7 and 17, 2016. Petitioner's counsel made an oral closing statement at the close of the hearing on November 17, 2016, in lieu of the submission of a post-hearing brief, and Respondent's counsel submitted a post-hearing brief on November 23, 2016. THE HEARING
Respondent through counsel presented the testimony of two witnesses: Respondent herself, testifying by telephone on November 7, 2016, and NYCHA employee Robert Tassinari, testifying in person on November 17, 2016. Petitioner did not present the testimony of any witnesses or other evidence at the hearing.
The telephone testimony was necessitated by the fact that, at some point after October 6, 2016, Respondent was incarcerated for reasons that were not presented to the court and do not appear to be germane to this proceeding.
Respondent testified that the first court date in this proceeding that she knew about was the return date of her first Order to Show Cause, August 18, 2016, which she missed because she was sick. She returned to take out her second Order to Show Cause immediately after she was evicted, and appeared on the return date as well as on the first and subsequent adjourned dates. Respondent testified that she was not aware of any court dates prior to the August 18, 2016 return date of her first Order to Show Cause which she knew that she had missed. When asked when she first became aware that her landlord was seeking to evict her, she testified that she had received a notice "last year" on a date she could not recall, which she took to NYCHA to inquire about. She was advised by a NYCHA employee that she had nothing to be concerned about, the only issues were between NYCHA and the landlord, and the notice was "bogus". When asked whether she knew about any earlier court dates in this proceeding prior to August 18, 2016 she said no, and explained that she had been in Virginia visiting her children since January of this year, got sick while she was there and did not return to New York City until June. She appeared to have no knowledge of this proceeding until receiving a Marshal's Notice in August 2016 which led her to take out her first Order to Show Cause.
Respondent testified that she did know that there had been a problem in 2015 with her Section 8 recertification process, and testified that when she received notice about this from NYCHA she took care of the problem by first getting a "budget letter" from the Department of Social Services and then taking it "to 250 Broadway". She testified that she was told at 250 Broadway that her "Section 8 benefits were still active", that she did not owe any rent and that her share of the rent was zero, which is what it had been throughout the nine years of her tenancy because she had no income other than Food Stamps. On cross-examination when asked whether she had told her landlord or NYCHA about her trip to Virginia she said no, and asserted that she was under no obligation to do so. While Respondent was not able to testify with specificity about dates of events which had occurred prior to August 18, 2016, her testimony otherwise was clear, cogent and credible.
It is common knowledge in the Housing Part of New York City's Civil Court that NYCHA's main offices are located at 250 Broadway in lower Manhattan.
It is not clear from Respondent's testimony whether she was referring to the number of years she had lived at the subject premises, or the number of years she had been in the Section 8 program. The parties' counsel submitted a stipulation, after the hearing, that "According to a NYCHA representative, Cynthia Woods moved into the subject premises 64 West 165th Street, Apt. 3E, Bronx, NY 10452 on January 1, 2010."
The NYCHA employee, Mr. Tassinari, testified initially in a general manner about the two mandatory termination notices that NYCHA uses prior to suspending or terminating a Section 8 recipient's benefits. The first notice, called the "T-1", is a written warning sent out when there is an incomplete recertification package. This notice provides tenants with 45 days to comply. The second notice, called the "T-3", also known as a "Notice of Default", advises tenants of NYCHA's intent to terminate their benefits and also provides them with 45 days to comply.
While NYCHA issues "T-1" and "T-3" notices, NYCHA seems to have skipped over the use of a "T-2" designation, as no such notice was mentioned by Mr. Tassinari.
With regard to Ms. Woods, Mr. Tassinari testified that she had been in the Section 8 program since 2003. Three documents were introduced into evidence through Mr. Tassinari's testimony, without objection:
Exhibit A was two pages of a "Notice of Default: Termination of Section 8 Subsidy" (NYCHA form # 059.002 [Rev. 7/23/14v11]), addressed to Ms. Woods and dated January 1, 2015; this notice advised Ms. Woods that she had failed to supply a required Affidavit of Income that was needed to process her income recertification for the Section 8 Program and that her Section 8 subsidy would be terminated 45 days after the date of the letter and further provided instructions on how to request a hearing if she believed her benefits should not be terminated. Mr. Tassinari testified that this is a "T-3" notice, and that since his records indicated that no corresponding "T-1" notice had been served prior to the service of this notice, it was improper. He further testified that Ms. Woods complied with this notice.
The Notice itself indicates that it is a four-page document, but only pages one and three were submitted into evidence as Exhibit A.
Exhibit B was a three-page "T-1" notice (NYCHA form # 059.003 [Rev. 8/3/15v10)], addressed to Ms. Woods and dated August 22, 2015; this notice advised that Ms. Woods had not supplied certain information needed to process her income recertification for the Section 8 Program, specifically: "Proof of Real Estate". Mr. Tassinari testified that Ms. Woods complied with this request and no follow-up "T-3" notice was generated or sent out based on this "T-1" notice.
Exhibit C was a one-page notice (NYCHA form # 059.343 [Rev. 8/5/15]v6), addressed to Ms. Woods, dated January 14, 2016 and referencing an "Inspection Date: 01/14/2016"; this notice stated that NYCHA had advised Ms. Woods' landlord to make repairs in order to comply with HUD Housing Quality Standards ("HQS"), that if the repairs were not completed "within 30 days of the failed inspection" NYCHA would suspend its payments to the landlord, and that if the subsidy remained suspended for 60 consecutive days NYCHA would terminate the HAP contract, automatically issue Respondent a transfer voucher and Respondent would "remain responsible for your portion of the rent only, not the subsidy portion". This notice further advised Respondent of her obligation to allow her landlord to have access to her apartment to make repairs and that, if she failed to do so, she would "risk termination from the program".
Mr. Tassinari further testified that Ms. Woods had never been terminated from the program, that while her subsidy had been suspended for the months of December 2015 through February 2016, the reason for this could not be discerned, it was apparently in error, and retroactive payment was made to Petitioner for these months. Thereafter, the subsidy was suspended as of March 1, 2016 due to HQS violations, following the failed inspection referenced in the notice that was admitted into evidence as Exhibit C. The violations were then cured and payment of the subsidy to Petitioner was reinstated as of October 2016. Mr. Tassinari testified that Respondent's current subsidy status is "active". On cross-examination, Petitioner's counsel asked Mr. Tassinari whether it was possible that the notice dated January 1, 2015 was mislabeled, and perhaps should have been dated January 1, 2016; Mr. Tassinari testified that this was possible. Mr. Tassinari's testimony was clear, consistent and credible. DISCUSSION
As a preliminary matter, the request of Respondent's counsel for appointment of a guardian ad litem for Respondent is denied. The court credits Respondent's testimony with regard to her having fallen ill while in Virginia from January to June of this year and then having continued to have health problems upon her return to New York City such that she was too sick to come to court on the return date of her first Order to Show Cause. However, there was no evidence submitted to support a finding that Respondent is or was at an earlier point in this proceeding "an adult incapable of adequately prosecuting or defending [her] rights". CPLR § 1201.
The issue presented is whether or not there is good cause, Parkchester Apartments Co v St Clair Scott (271 AD2d 273, 707 NYS2d 55 [1st Dep't 2000]), and whether the facts of this case present "appropriate circumstances", Matter of Lafayette Boynton Hsg Corp v Pickett (135 AD3d 518, 23 NYS2d 204 [1st Dep't 2016]), quoting Brusco v Braun (84 NY2d 674, 682, 621 NYS2d 291 [1994]), for the court to order vacatur of the warrant of eviction and restoration of Respondent to possession of the Rent Stabilized apartment where she had been living, with the financial assistance of a tenant-based Section 8 voucher, for a number of years prior to her eviction this past August.
There was a slight conflict in the evidence submitted as to the exact length of Respondent's tenancy: Respondent herself testified that she had lived in the apartment for 9 years, and the parties' counsel submitted a stipulation stating, somewhat equivocally, that "According to a NYCHA representative, Cynthia Woods moved into the subject premises on January 1, 2010." Mr. Tassinari testified at the hearing that Ms. Woods had been in the Section 8 voucher program since 2003 (13 years).
Section 749(3) of the New York State Real Property Actions and Proceedings Law (RPAPL) authorizes the vacatur of warrants of eviction "for good cause shown" prior to execution of the warrant, and decisional law has extended this relief to cases, like the one now before this court, that present in a post-eviction, post-execution-of-the-warrant posture. See, e.g., 102-116 Eighth Ave. Assocs, LP v. Oyola (299 AD2d 296, 749 NYS2d 724 [1st Dep't 2002]); 1240 Sheva Realty Assoc, LLC v. Ramos (51 Misc 3d 143[A], 38 NYS3d 831 [App Term 1st Dep't 2016]); 2203 Belmont Realty Corp v Gant (51 Misc 3d 140[A], 36 NYS3d 410 [App Term 1st Dep't 2016]); Nagle 112, LLC v Miqui (46 Misc 3d 149[A], 13 NYS3d 851 [App Term 1st Dep't 2015]); 2720 LLC v White (28 Misc 3d 1234[A], 954 NYS2d 554 [Civ Ct Bx Co 2010](and cases cited therein). As the Appellate Term, First Department has held:
Each application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities between the parties .
Parkchester Apartments Co v Heim (158 Misc 2d 982, 983-984 [App Term 1st Dep't 1993]). See also, e.g., Oyola, supra (affirming vacatur of a warrant and restoration of a tenant to possession "under the facts and circumstances of record").
While the cases cited above and in the post-hearing Brief submitted by Respondent's attorney involve nonpayment proceedings, there is no reason for the analysis to be different in the context of a holdover proceeding or for the court not to follow the guiding principle set forth in Parkchester, Oyola, and the many other similar decisions determining the question of whether an executed warrant should be vacated and a tenant restored to possession: Each case must be decided upon the specific facts and circumstances presented. This is borne out by the decisions in two holdover proceedings which the court's research has turned up addressing the tenants' post-eviction requests for vacatur of the warrant of eviction and restoration to possession. In Town of Oyster Bay Hous Auth v Kohler (34 Misc 3d 1234[A], 950 NYS2d 611 [Dist Ct Nassau Co 2012]), a holdover proceeding against a tenant living in federally subsidized housing, the court vacated the judgment and warrant of eviction and restored the tenant to possession of his apartment after finding that the entry of a default judgment against the tenant, who was incarcerated at the time, was "improper and should not have occurred." Further, the tenant was found not to be responsible for any legal fees, City Marshal fees or moving expenses incurred by the landlord. In Kosc Dev, Inc v Scott (28 Misc 3d 138[A], 957 NYS2d 636 [App Term 2nd Dep't 2010]), the tenants' post-eviction order to show cause was granted to the extent of setting the matter down for a hearing on the merits of the tenants' claim that there was no basis for the holdover proceeding and, accordingly, the issue of whether the tenants should be restored to possession.
Also helpful to this analysis is an examination of the Honorable David B. Saxe's concurring opinion and analysis of Brusco and Solack Estates in the Appellate Division, First Department's decision in Matter of Lafayette Boynton, supra, which upheld the Appellate Term's affirmance of the order of former Bronx Housing Court Judge (now Family Court Judge) Javier E. Vargas, who had granted the long-term, Rent Stabilized, disabled tenant's motion to be restored to possession of the subject apartment upon payment of all rent and other charges due to the landlord. In his concurrence, Judge Saxe expressed his concerns about some of the underlying forces and policies at play, noting that the nonpayment proceeding under review had been pending for two years, over the course of which the lower court had repeatedly issued numerous stays of eviction and allowed the tenant considerable additional time to pay the rent before, eventually, issuing an order denying any further stays and allowing execution of the warrant of eviction. This was then followed by the court's denial of the tenant's first two post-eviction motions seeking to stay the landlord from re-letting the apartment and to reinstate him to possession upon condition that he pay all sums owed to the landlord. Judge Saxe analyzed Brusco as follows:
Notably, Brusco did not involve an evicted tenant restored to possession. The decision's acknowledgement that a tenant may be restored to possession after a warrant of eviction has been executed was simply one item in a list of ways that the law protects tenants against unjust or erroneous eviction. Its sole citation in support of that proposition was Solack Estates, Inc v Goodman (78 AD2d 512 432 NYS2d 3 [1st Dep't 1980]). In Solack Estates, an elderly tenant was evicted pursuant to a default judgment obtained while she was on vacation in Florida . (135 AD3d at 522, 23 NYS2d at 207). Judge Saxe then goes on to propose "that we should reconsider the standard of proof necessary to vacate an already-executed warrant of eviction", and, as an example "of the type of greater showing that should be required", returns to the facts of Solack Estates:
The showing in Solack Estates justified reversing an already-executed warrant of eviction and restoring the evicted tenant to possession, because the evicted tenant there showed that the basis for the landlord's underlying claim — nonpayment of rent — was incorrect (although neither fraudulent nor based on perjury). The finding of an error in the allegations supporting the issuance of a warrant of eviction certainly justified vacating that warrant and restoring the tenant to possession. (135 AD3d at 524, 23 NYS2d at 209).
While this court need take no position at this time on Judge Saxe's proposition that "to undo an eviction, the tenant should be required to satisfy more stringent criteria than the type of 'good cause' that justifies vacating an unexecuted warrant" (135 AD3d at 524, 23 NYS2d at 209), his analysis of Brusco and Solack Estates sheds further light on the question of whether this court should reinstate Ms. Woods to her apartment under the facts presented in this case, where it is clear that, as in Solack Estates, there was "an error in the allegations supporting the issuance of a warrant of eviction". As explained through the credible testimony of Mr. Tassinari, who was fully familiar with both NYCHA's general procedures and Respondent's specific tenant file at NYCHA, Respondent's Section 8 subsidy was never terminated or suspended for failure to recertify, and the "T-3" notice dated January 1, 2015 was issued by NYCHA in error. It was not preceded by the requisite "T-1" notice and Respondent in fact complied with NYCHA's request to submit certain documentation that was needed to complete her recertification in 2015. Accordingly, the grounds Petitioner asserted as the basis for this holdover proceeding were in fact not true and the petition was allowed to proceed to a judgment in error. Even if NYCHA had intended that "T-3" notice to be dated January 1, 2016, this would not change the court's analysis, as Mr. Tassinari's testimony that the "T-3" notice was not preceded by the requisite "T-1" notice, and that it was issued in error, still stands. In other words, this is a holdover proceeding that never should have been commenced, as there was no basis for it. Petitioner easily could — and should - have ascertained prior to commencing this proceeding that in fact Respondent's Section 8 benefits had not been terminated, that she had completed her annual recertification process and that NYCHA issued its notice dated January 1, 2015 in error. These errors which have now come to light both constitute a meritorious defense to the proceeding and justify vacatur of the judgment and warrant of eviction. As in Solack Estates, and in the words of the Honorable David B. Saxe, "The finding of an error in the allegations supporting the issuance of a warrant of eviction certainly justifie[s] vacating that warrant and restoring the tenant to possession." (135 AD3d at 524; 23 AD2d at 209).
In addition, the court finds that Respondent presented a credible and reasonable excuse for her defaults, which were not willful: With regard to Respondent's default on the original return date of the Holdover Petition and the subsequent adjourned date when the inquest was held, she testified credibly that she was not in New York City at that time because she had gone to Virginia to visit her children in January of this year and was delayed in her return home until June because she fell ill while there. That she did not tell her landlord or NYCHA that she was away does not undermine her explanation, which the court finds to be reasonable under all of the circumstances: Respondent had completed her 2015 Section 8 recertification before going to Virginia; had been told by a NYCHA employee that her Section 8 benefits were active and that the only remaining issue was between NYCHA and the landlord; was not in default on her own rent payments (her share of the rent was zero); and was caught up with and focused on her health problems. With regard to Respondent's default on what she thought was her first court appearance - the return date of her first, pre-eviction Order to Show Cause — Respondent testified credibly that she did not come to court that day because she was too sick, which then led to her being evicted and back in court immediately on a second Order to Show Cause, on the return date of which she did appear in court, with counsel. Accordingly, the decision in Chelsea 19 Assoc v James (21 Misc 3d 129[A], 873 NYS2d 232 [App Term 1st Dep't 2008]), cited by Petitioner's attorney, in which the Appellate Term, "in view of tenant's extensive and unexplained rent defaults", reversed the lower court's order granting the tenant's motion to vacate a default final judgment in a nonpayment proceeding, is inapplicable. See, e. g., 443 E 78 Realty LLC v Tupas (2010 NY Slip Op 50494[U], 910 NYS2d 404 [Civ Ct NY Co 2010]). CONCLUSION
Accordingly, and bearing in mind the well-settled principle of equity that courts do not look favorably upon the forfeiture of leases, Sharp v Norwood (223 AD2d 6, 11, 643 NYS2d 39 [1996], affd, 89 NY2d 1068, 659 NYS2d 834 [1997]), as well as the strong preference for resolving cases on their merits, Pricher v City of New York (251 AD2d 242, 674 NYS2d 674 [1st Dep't 1998]), and based on the facts and circumstances of this case, the judgment and warrant are hereby vacated and Petitioner is ordered to restore Respondent to possession of the premises forthwith. That branch of the motion filed by Respondent's counsel seeking leave to serve and file an answer is denied as moot.
This constitutes the Decision and Order of this Court. _________________________ Diane E. Lutwak, Hsg. Ct. J. Dated: Bronx, New York
December 6, 2016