Opinion
L & T 68504/19
08-17-2020
LUCKY 9911 LLC, Petitioner-Landlord, v. Melanie GIRON, Respondent-Tenant, John Doe, and Jane Doe, Respondents-Undertenants.
Rina Milos, Esq., 136-31 41st Avenue, Suite 8A, Flushing, NY 11355, Attorney for Petitioner Katie Redmon, Esq., The Legal Aid Society, 120-46 Queens Boulevard, 3rd Floor, Kew Gardens, NY 11415, Attorneys for Respondent
Rina Milos, Esq., 136-31 41st Avenue, Suite 8A, Flushing, NY 11355, Attorney for Petitioner
Katie Redmon, Esq., The Legal Aid Society, 120-46 Queens Boulevard, 3rd Floor, Kew Gardens, NY 11415, Attorneys for Respondent
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Petitioner's motion to restore and for various relief and Respondent's cross-motion to dismiss the proceeding with prejudice:
Papers Numbered
Notice of Motion & Affidavit/Affirmation/Exhibits Annexed 1
Notice of Cross-Motion & Opposition & Affirmation Annexed 2
Affirmation in Opposition (to Cross-Motion) and in Reply & Exhibit Annexed 3
Affirmation in Reply (in further support of Cross-Motion) 4
Upon the foregoing cited papers, the decision and order on Petitioner's motion to restore and for other relief and Respondent's motion for dismissal with prejudice (consolidated for determination herein) is as follows.
PETITIONER'S MOTION
Petitioner seeks to restore this holdover proceeding to the court's calendar, and for other relief, including the court ordering Respondent to remove personal items from public areas, to provide access for repairs, and to pay rent arrears. Petitioner's motion references a stipulation of settlement (so-ordered by Sergio Jimenez, J.) dated November 20, 2019. By the express terms of the stipulation, Petitioner withdrew the Petition and the proceeding was discontinued (and Respondent withdrew a pending motion without prejudice). In Paragraph 3 of the stipulation, Respondent agreed to "remove any personal items from the common stairwell on or before 11/22/2019." In Paragraph 4 of the stipulation, Petitioner agreed to inspect and repair various conditions as required by law, and access dates of November 25, 2019 and November 26, 2019 were set. The following paragraph states that "[e]ither party may move to restore this case to court calendar by 8 days' written notice to other side for a hearing on the issues of Paragraphs 3 and/or 4 only, not for any hearing on the allegations contained in the predicate notices or pleadings."
Petitioner annexes an affidavit from Poh Poh Lee, managing member of Petitioner, who states that "after this proceeding was marked settled, [Respondent] begins to place personal items and obstacles in the public hallway and stairs blocking the fire exit." (Lee Affidavit, ¶ 4). In support of this allegation, Petitioner annexes photographs taken on February 6, 2020, purportedly showing the area outside of Respondent's apartment. Poh Poh Lee also alleges that Respondent failed to give access for repairs, failed to pay rent for November and December 2019 and February 2020, and is sending correspondence to Petitioner's attorney by certified mail, causing Petitioner hardship. Respondent opposes Petitioner's motion in its entirety, arguing that no allegations set forth by Petitioner constitute a breach of the November 20, 2019 stipulation.
In assessing Petitioner's motion, the court begins by noting that a stipulation, like any contract, "must be enforced according to the plain meaning of its terms." Greenfield v. Philles Records , 98 NY2d 562, 569 [2002]. Under the terms of the parties' stipulation (dated November 20, 2019), the only provision countenancing restoration references Paragraphs 3 and 4. Petitioner has not sufficiently alleged a breach of Paragraph 3 that would warrant restoration for a hearing. The sole obligation placed upon Respondent in Paragraph 3 was removal of personal items from the common stairwell on or before November 22, 2019. Petitioner's motion does not allege or provide any evidence that Respondent failed to comply with this specific obligation. Rather, Petitioner claims that Respondent, at some unspecified time after settlement, began to place personal items in a public hallway and stairs (and the only proof thereof are photographs taken on February 6, 2020, well after November 22, 2019). Therefore, there is no basis for restoring the proceeding for a hearing on any alleged breach of Paragraph 3.
Paragraph 4 of the November 20, 2019 stipulation only places an affirmative obligation on Petitioner. To wit, Petitioner was required to inspect and repair certain conditions. Petitioner's managing member states that Respondent failed to provide access for ceiling plaster repair and painting; however, no dates of refusal of access or other relevant information about how access was refused are alleged. More fundamentally, this court is not empowered to grant the type of injunctive relief (i.e. an order requiring access) that Petitioner is seeking in the context of this proceeding. See Waxman v. Patabbe, Inc. , 42 Misc 3d 142[A], 2014 NY Slip Op 50221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ["It is well settled that injunctive relief is generally not available in a summary proceeding brought in the Civil Court"]; Topaz Realty Corp v. Morales , 9 Misc 3d 27, 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]. The remaining relief that Petitioner is seeking (requiring Respondent to pay rent arrears in this holdover proceeding and stopping Respondent from corresponding by certified mail) is also injunctive in nature and may not be granted by this court in a summary proceeding.
Finally, inasmuch as the Petition has been withdrawn and Petitioner has not reserved its right to a judgment in the stipulation, there is no ability for Petitioner to obtain its ultimate relief (i.e. a judgment of possession) in this summary proceeding. See Wallkill Affordable Senior Hous., LP v. Powell , 67 Misc 3d 136[A], 2020 NY Slip Op 50554[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020] ["Where there is no provision in a stipulation settling a holdover proceeding which provides for the entry of a final judgment based upon a default under the stipulation, the landlord is not entitled to a final judgment of possession in the event of a breach of the stipulation"].
For each of these reasons, Petitioner's motion to restore and for other relief is denied in its entirety.
RESPONDENT'S CROSS-MOTION
Respondent's cross-motion seeks dismissal of this proceeding with prejudice. Respondent primarily focuses on the lack of merit of Petitioner's motion and the nearly four-month delay in making the motion after settlement in support of her request. Petitioner opposes Respondent's motion, primarily highlighting Respondent's alleged failure to comply with the November 20, 2019 stipulation.
In New York, a dismissal " ‘with prejudice’ generally signifies that the court intended to dismiss the action ‘on the merits’ that is, to bring the action to a final conclusion against the plaintiff." Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp. , 93 NY2d 375, 380 [1999]. The "with prejudice" determination primarily has relevance in the context of res judicata . Id. Here, there is no legal basis for the court to make a merits determination with preclusive effect upon the parties simply because Petitioner has made a motion to restore that has been denied. There is no suggestion by Respondent that Petitioner's making of its motion to restore is sanctionable under 22 NYCRR § 130-1.1, nor does the court find it to be so. As a result, Respondent's cross-motion is denied.
CONCLUSION
In accordance with the determinations made herein, both Petitioner's motion and Respondent's cross-motion are denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.