Vargas v 208 Himrod LLC

[*1] Vargas v 208 Himrod LLC 2008 NY Slip Op 52347(U) [21 Misc 3d 1134(A)] Decided on November 24, 2008 Civil Court Of The City Of New York, Kings County Heymann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2008
Civil Court of the City of New York, Kings County

Susan Vargas, Petitioner(s),

against

208 Himrod LLC, Joe Wasser, et al., and DHPD, Respondent(s).



6262/08



The petitioners were represented by:

Vance Gathing, Of Counsel

Martin S. Needelman, Esq.

Brooklyn Legal Services Corp. A

Bushwick Office

1455 Myrtle Ave. 2nd Floor

Brooklyn, New York 11237

718-487-0800

The respondent was represented by:

Jonathan Steckler, Esq.

44 Court Street Suite 912

Brooklyn, New York 11201

718-243-1915

George M. Heymann, J.

This HP action was commenced by an Order to Show Cause (OSC) dated June 26, 2008, returnable in Part B on July 23, 2008, seeking an order directing the correction of violations. Annexed to the OSC is a copy of the 112 violations listed as of June 23,2008 which include 77 Class B violations and 17 Class C violations (Schedule B). In her affidavit in support of the OSC, the tenant/petitioner cites 21 conditions that exist in her apartment or in the common areas of the building.

After four adjournments, the parties entered into a Consent Order and Notice of Violation, dated September 25, 2008, which was "So Ordered" by another judge.

On October 28, 2008, the petitioner brought the instant OSC to obtain, inter alia, an order [*2]directing the landlord to "(a) remove within 21 days the illegal subdividing wall in apartment 2R with utmost care for the premises and petitioner and (b) restore within 21 days the apartment to petitioner in its prior legal condition and (c) be enjoined from permitting the existence of this uncorrected B class violation reported by DHPD on court-ordered inspection on 6/12/08, order number 495, violation ID 7331389, NOV ID 3325891."[FN1]

By consent, this matter was adjourned to November 21, 2008 at which time the attorneys for all parties had an off the record conference with the Court. All parties acknowledged that they entered into the Consent Order on September 25, 2008 to correct all the violations in the inspection report with one exception: the alteration which subdivided the subject apartment. At the time of the entry of the Consent Order specific language was handwritten by petitioner's counsel onto the printed Order directly related to the "illegal wall".

Now, however, the parties are in dispute as to what was written, what was intended and how it impacts on this proceeding.

The printed text of the Consent Order provides, in relevant part:

"IT IS HEREBY ORDERED as follows:

a) The respondent(s) ... shall correct all violations listed on the annexed inspection report and on Schedule A..."

In between the words "report" and "and" the attorney for the tenant/petitioner penned in the phrase "except removal of illegal wall not []" . It is the illegible word that appears in the space, designated here by the brackets, that is in dispute.

The attorney for the petitioner states that the word he wrote is "decided". The attorney for the landlord/respondent avers that the word is "included" and that is what was intended.

The petitioner argues that because the issue of the illegal wall was left open ("not decided") it may now be brought before the Court in this proceeding for resolution. In opposition, the respondent maintains that in lieu of going to trial on September 25, 2008 the parties entered into a stipulation (Consent Order) to settle the entire case. As part of the negotiated settlement, the illegal alteration was the only item that remained unresolved. The respondent opines that, except for noncompliance with the provisions included in the Order, this matter is closed. Respondent further argues that this proceeding cannot be used as a vehicle to resurrect and address the issue of the illegal wall and to seek fines and penalties for failure to correct that which was not agreed upon or "so ordered" by the court.

The removal of the illegal wall was an "except[ion]" to all the other violations to be corrected pursuant to the Consent Order and there was no language incorporated therein that the parties intended to restore this proceeding for that purpose.

Regardless of whether the word in question is "decided" or "included" the outcome is the same - the violation for the illegal alteration in the subject apartment no longer remained a part of this action which was settled by the Consent Order.

In any stipulation between the parties they are free to chart their own course in the [*3]resolution of the proceeding (Nishman v. De Marco, 76 AD2d 360, 368 [AD 2nd Dept., 1980]; appeal dism, 53 NY2d 642 [1981]) and here they chose to sever the issue of the partition from the instant matter.

Thus, for the petitioner to now come before the Court seeking to obtain fines and penalties on the basis that the respondent has violated the Consent Order regarding an, as yet, unresolved issue, and one that they voluntarily chose not to pursue in this proceeding, is disingenuous.

The petitioner argues that pursuant to paragraph "j" of the Consent Order this Court retains continuing jurisdiction over this matter and, therefore, his motion is properly before the Court.

While the Court agrees with petitioner's counsel that it retains jurisdiction over this proceeding and can direct any party to adhere to the terms and conditions of the Order, it was the parties themselves that excluded the illegal wall from said Order and it remains silent as to which forum the issue would be resolved in. The Court will not speculate on the parties' intent inreaching this position, nor will it seek to enforce that which is not contained within the four corners of the agreed upon document. Any confusion or disagreement regarding language added or omitted with respect to the illegal wall must be construed against the petitioner as it was her counsel who drafted the inserted language.[FN2]

As there is no specific mention in the petitioner's affidavit in support of the motion as to any other conditions that have not been corrected, no further orders in this proceeding are required at this time.

Accordingly, the petitioners OSC is denied in its entirety without prejudice to commence a new proceeding regarding the violation for the illegal alteration, if not corrected.

This constitutes the Decision and Order of the Court.

Dated: November 24, 2008________________________________

Hon. George M. Heymann, JHC Footnotes

Footnote 1: This violation reads as follows:

§ 300, 301, 302, m/d law file plans and obtain a certificate of occupancy to legalize the following alteration or restore premises to prior legal condition apartment 2r subdivided in two separate class a apartments located at apt 2r, 2nd story, 1st apartment from south at west.

Footnote 2: In the caption of the Order tenant's counsel named the landlord as the "petitioner" and the tenant as the "respondent". Should the Court therefore find that the tenant - "respondent" is responsible to make all repairs or be subject to fines and penalties for non compliance? Notwithstanding the volume of cases in Housing Court, the attorneys need to be more vigilant in preparing their pleadings, stipulations, orders, etc., for submission to the Court, especially in the HP Part where the typical designations of the parties are reversed.