City of New York v Taylor

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City of New York v Taylor 2012 NY Slip Op 32489(U) September 24, 2012 Supreme Court, New York County Docket Number: 400100/12 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 9 1 2 8 0 1 2 ' [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART Justlue LE MOTION DATE The following papers, numbered 1 to , were read on this motion to/for Notlce of Motion/ Order to Show Cause - Affidavits - Exhlblts ... Answering Affidavits - Exhibits Replying Affldavlte f Cross-Motion: 0 Yes 0 No Upon the foregoing papers, it io ordered that this motion mTION IS DECIDED IN ACCORDANCE UEEH THE A1FCACM.D WWORANDUM DBISlONm Bated: M. KENNWs. c. :heck one: FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST c REFERENCE ] 0 SUBMIT ORDER/ JUDG. r] SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 8 ____________________---------------------X THE C I T Y OF NEW YORK, Index # 400100/12 Plaintiff, -againstROBERT TAYLOR, 5 6 1 LENOX AVE. L L C , THE LAND AND BUILDING KNOWN AS 100 WEST 1 3 g T H STREET, TAX BLOCK 2007, TAX LOT 3 6 , COUNTY OF NEW YORK, CITY AND STATE OF NEW YORK, "JOHN DOE" AND "JANE DOE," fictitiously named parties, true names unknown, the intended being the owners, lessees, operators or occupants of Apartment 28A within the building located at 100 West 1 3 g t h Street, New York, New York, and a n y person claiming any right, title o r interest in the rea property which is the s u b j e c t of this action, DECI$TON & 0RDER Defendants. Kenney, J., M., J. Counsel ¬or Plaintiff: Attorney for Defendant: N e w York City Police Department Legal Bureau-Civil Enforcement U n i t 2 Lafayette Street, 5th Floor New York, NY LOO07 By: Harold Gate$, Esq. (917) 454-1100 Todd Rothenberg, Esq. 5 6 1 Lenox Ave. LLC 271 North Avenue, Suite 115 New York, New Y o r k 10801 (914) 2 3 5 - 7 2 3 4 Robert Taylor, Pro Se 10.10 Hazan Street EMTC East Elmhurst, New Y o r k 11370 Papers considered in review of this motion: Pagers : Order To Show Cause, Affirmation, and Exhibits, A f f i r m a t i o n i n Opposition, and Exhibits Pro Se Opposition P a p e r s Numbormd : 1-7 8-11 12 In this public nuisance action, 561 Lenox Avenue LLC, the land owner of the property (the landlord), located at 100 West 3 g t h Street, New York, New Y o r k , moves to vacate a stipulation, dated . . . [* 3] January 17, 2012, which was executed in connection with the settlement of the C i t y of New Yoxk s regarding Apartment 28A, (the City), allegations (the apartment) and Robert Taylor (Taylor), the tenant of said apartment. FACTUAL BACKGROUND On os about January 10, 2012, this action was commenced with the alleged service of an Order To Show Cause (OSC) and the pleadings attendant thereto upon the defendants. The OSC sought, i n t e r alia, injunctive relief pursuant to Sections 7-709, 7-710 and 7-11 o f the Administrative Code of the City of New Y o r k and CPLR 6301. Plaintiff, the C i t y of New York (the C i t y ) sought to enjoin and restrain defendants from us [ing], occup[ying] Apartment 2 8 A (the apartment) within the building located at 100 West 1 3 g t h Street, Tax Block 2007, Tax Lot 36, New York, New York. The pleadings alleged that as a result of an undercover New York City Police Department apartment was being u s e d (NYPD) investigation, for that the the purpose of selling and/or possessing illegal drugs. According to the affidavits supporting the OSC, on July 21, 2011 and August controlled drug purchases were made 1, 2011, two separate at the apartment confidential informant working with NYPD detectives. by a Field tests were apparently conducted immediately, and the tests r e s u l t e d in positive findings for cocaine. On August 11, 2011, the NYPD executed a search warrant in the apartment and recovered, among -2- [* 4] other things, drug paraphernalia, with residue, and three marijuana cigarettes. An individual was arrested and charged with violating Penal Law Section 220.03 and 221.05. On or about January 17, 2012, the landlord and the City executed a stipulation of settlement (the stipulation) . The stipulation stated in pertinent part that the C i t y and t h e landlord acknowledged that when the instant action was commenced, the landlord had legal possession of the apartment. According to the landlord, the tenant, Robert T a y l o r ( T a y l o r ) was evicted, pursuant to a default judgment and warrant of eviction, on or about January 3, 2012. Taylor never appeared in the Housing Court proceeding. The bases for terminating Taylor's tenancy that resulted in the warrant of eviction, were illegal subletting of the apartment; Taylor's allegedly illegal use of the premises, which also constituted an alleged public nuisance, resulting in alleged material breaches of the terms of the lease between the landlord and Taylor. On or about March 1, 2012, Taylor, (while incarcerated), brought a post-eviction OSC in the Housing Part. Taylor's The basis for application was that he never received notice of the dispossess proceeding because he had lost his mailbox key therefore he did not receive the pleadings in the eviction case. The landlord's current application before this Court s e e k s to vacate the stipulation based upon the parties mutual mistake. -3- The legal [* 5] rationale for this argument is that in the event Taylor is restored to possession by the Housing Court, the landlord would be subject to the very harsh enforcement penalties recited in the stipulation. Taylor's response to the instant application is to merely state in an unsworn, ex parte letter submitted to the Court', that counsel to the landlord was aware of his incarceration and because of said incarceration he was unaware that he had been evicted, notwithstanding that Taylor stated that he was aware the apartment had been re-let. The landlord argues it is entitle to have the stipulation vacated based upon a mutual mistake made on the part of b o t h parties, e . g . , because neither party anticipated the possibility of Taylor being restored to the premises. The City argues in opposition, that the landlord's application is both premature and moot. The City contends that the application is premature because Taylor has not been restored to the apartment by the Housing C o u r t 2 , and moot because the apartment has been r e - l e t pursuant to a the terms of a written lease that does not expire until A p r i l 30, 2013. Although it is generally better to err on the side of caution, it seems that at this juncture the landlord and the City have 'There is no indication in the "letter" that copies were mailed to the other parties to this lawsuit. 'The City does not address the fact that this Court stayed Taylor's application pending a determination of this application. -4- [* 6] already produced very persuasive evidence t h a t T a y l o r allegedly engaged in illegal activity while in legal possession of the apartment, e.g., the property vouchered after execution of the criminal search warrant and the predicate support f o r the warrant itself (the two controlled drug purchases from the apartment). It has already been determined between parties that t h e apartment was being used for illegal purposes, and because this C o u r t \\so Ordered" the stipulation, the stipulation becomes an order of the Supreme Court. Res judicata and collateral estoppel generally deal with preclusion after judgment: res judicata precludes a p a r t y from asserting a c l a i m that was litigated in a prior action (see, P a r k e r v B l a u v e l t V o l u n t e e r F i r e Co., 93 NY2d 343, 347 [1999]) (emphasis added), while collateral estoppel precludes relitigating an i s s u e decided in a Rapid-American prior action (see, Continental Cas. Co. v C o r p . , 8 0 NY2d 640, 649 [1993]). It is highly unlikely that the Housing Court will r u n afoul of the C o u r t of Appeals when it cautioned that "a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate [ o r superior] jurisdiction" (see, Martin v C i t y of Cohoes, 37 NYZd, at 165 [ 1 9 7 5 ] ) . Consequently, the motion is denied without prejudice in the event the Housing Court attempts to r e s t o r e Taylor to possession of the apartment. -5- [* 7] Accordingly, it i s ORDERED that the motion is denied. Dated: September 2 4 , 2012 E N T E R : H -6- / W Joan M. Kenney

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