Neighborhood Hous. Servs. of NY City, Inc. v Reid

[*1] Neighborhood Hous. Servs. of NY City, Inc. v Reid 2006 NY Slip Op 50061(U) [10 Misc 3d 1073(A)] Decided on January 18, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 18, 2006
Supreme Court, Kings County

NEIGHBORHOOD HOUSING SERVICES OF NEW YORK CITY, INC. and THE CITY OF NEW YORK, Plaintiffs,

against

DAISEY REID a/k/a DAISY REID, et. al., Defendants.



17012/03



Plaintiff:

Wenig Ginsberg Saltiel & Greene

Brooklyn NY

Defendant:

Regina Felton, Esq.

Brooklyn NY

Arthur M. Schack, J.

Upon the Receiver's Order to Show Cause, dated December 29, 2005, for a judgment of possession and a writ of assistance, and upon this Court's Order, dated November 29, 2005, setting this matter for a hearing to determine use and occupancy and compliance with the Receiver's Demand for Compliance, dated November 7, 2005, and the hearing having commenced [*2]on December 22, 2005 and continued to January 3, 2006, and the court having issued interim orders on December 22, 2005 and January 3, 2006, this Court makes the following findings:

On January 3, 2006, this Court adjourned to January 17, 2006, at 2:15 P.M., the previously commenced hearing on: use and occupancy by Defendant Reid; compliance by Defendant Reid with the Receiver's Demand for Compliance with the turnover of documents, collected rents and security deposits; and, the Receiver's Order to Show Cause seeking entry of a judgment of possession and issuance of a writ of assistance. Yesterday, January 17, 2006, at approximately 1:30 P.M. during lunchtime, my

chambers received a voice mail message from "Dameka," who said that she was from the office of Regina Felton, Esq. (counsel for Defendant Reid). "Dameka" stated that Ms. Felton would not appear in my Part that afternoon at 2:15 P.M. because she was engaged in a matter in Civil Court, Queens County, before Judge Raffaele, Index Number 37118/2003, State Farm Ins. v Sylvanna A. Gonsalves. "Dameka" further advised that Defendant Reid would not appear because her physician ordered her to stay off her feet for two weeks to alleviate hypertension and anxiety. Ms. Felton failed to provide the Counsel for the Receiver or me with an affirmation of actual engagement, in violation of 22 NYCRR § 125.1, or provide any documentation from a doctor with respect to Defendant Reid's medical condition.

This Court telephoned Judge Raffaele yesterday at approximately 2:30 P.M. Judge Raffaele advised me that Ms. Felton was in his courtroom on a matter that was held over from the morning, but that Ms. Felton had not advised him of her actual engagement on the continued hearing in Kings County. Further, the Queens Civil Court trial had not commenced prior to the hearing on the instant Brooklyn action.

§ 125.1 of The Rules of the Chief Administrator of the Courts (22 NYCRR § 125.1 (c)) provides that where an attorney has conflicting engagements, the priority of engagements is as follows: child protective proceedings; criminal proceedings or juvenile delinquency proceedings in which the defendant or respondent is incarcerated; felony matters; misdemeanor matters; matrimonial proceedings; and, then civil actions.

Notwithstanding the foregoing, §125.1(d) of The Rules of the Chief Administrator of the Courts, provides that if there is no statutory preference to a matter, and there are no matters with exceptional circumstances and if none exist, then priority is given to the first matter scheduled. Clearly, Ms. Felton, a practicing attorney for a number of years (admitted to the New York State Bar in 1978), should be familiar with the rules for the engagement of counsel and decided to ignore them by her failure to appear before me yesterday afternoon, January 17, 2006 at 2:15 P.M., in the continued hearing that commenced prior to her Queens Civil Court case, and her failure to submit an affirmation of actual engagement.

Moreover, although this court directed Ms. Felton to serve and file any opposition papers to the Receiver's December 29, 2005 Order to Show Cause for a judgment of possession and a writ of assistance by January 12, 2006, Ms. Felton failed to file any papers with this Court. Counsel for Receiver, however, graciously advised the court that she was served with opposition papers, and provided this Court with a copy.

The Receiver's application for this Court to order Defendant Reid to pay market value for the apartment that she occupies is granted upon Defendant Reid's failure to appear and continue [*3]the hearing. This court sets use and occupancy for Ms. Reid's apartment at $1,200.00 per month, based upon the credible expert testimony of Kiney A. Corbett, a licensed real estate broker. Defendant Reid is directed to pay $1,200.00 each month until possession is given to the Receiver, and shall have until January 31, 2006 to pay for the use and occupancy of her apartment for the period commencing January 2005 (the month subsequent to the receiver's appointment) through November 2005, and the $200.00 per month shortfall for moneys paid each month for December 2005 and January 2006 use and occupancy, pursuant to this Court's December 22, 2005 interim order, for a total amount due to the Receiver of $13,600.00 through January 31, 2006.

This Court grants the Receiver's Order to Show Cause, dated December 29, 2005,

for entry of a judgment, pursuant to RPL § 221, for possession and issuance of a writ of assistance to the Sheriff of the City of New York to forthwith eject Daisey Reid a/k/a Daisy Reid and all those holding under or through her from possession of the premises known as Apartment No.1R at 876 Greene Avenue, Brooklyn, NY, and deliver possession of apartment #1R at 876 Greene Avenue, Brooklyn, NY to the Receiver. Further, this Court declines to grant a stay of execution in light of Defendant Reid's age, as Adult Protective Services shall be notified prior to any ejectment to afford Defendant Reid time to relocate.

The order appointing the Receiver is explicit in directing turnover of possession, and Defendant's opposition papers fail to set forth any legitimate defense to the relief requested. Further, the payment of any use and occupancy is not a defense to the demand for possession. This Court rejects, for the second time, Defendant Reid's challenge to the service of the moving papers. Notably, this Court addressed that issue on January 3, 2006, holding that, since no sworn affidavit challenging service has been presented, service pursuant to CPLR §308 and/or CPLR §2103 (b) was proper.

Defendant Reid's continued failure to comply with this Court's Orders of December 22, 2005 and January 3, 2006 directing compliance with the Receiver's Demand for Compliance with the Order Appointing the Receiver is most troubling to the Court. There has been no accounting or turnover to the Receiver of: more than $38,415.00 in rent admittedly collected since November 2004; the security deposits paid by tenants, at the property, to Defendant Reid; and, the documents necessary for the Receiver's filing of a J-51 application, pursuant to this Court's Order Appointing the Receiver. This Court's January 3, 2006 Order directed Defendant Reid to turnover or post a bond for $4,554.57 in security deposits by January 10, 2006. Counsel for the Receiver advised the Court that she received $2,675.00 from Ms. Reid, and no bond for the difference.

Any application to this Court by Defendant Reid for future relief must address her failure to comply with this Court's orders of December 22, 2005 and January 3, 2006 directing compliance with the Receiver's Demand for Compliance with the Order Appointing the Receiver.

Further, Receiver's application is granted to reserve his rights to seek: legal fees and/or sanctions against Defendant Reid and/or Defendant Reid's counsel for willfully failing to appear without notice; and, contempt for failure to comply with the turnover of documents, collected rents, and security deposits.

This constitutes the Decision and Order of this Court. [*4]

E N T E R

____________________________________

HON. ARTHUR M. SCHACK

J. S. C.