Matter of Delacruz v Rhea

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Matter of Delacruz v Rhea 2012 NY Slip Op 32501(U) September 25, 2012 Supreme Court, New York County Docket Number: 403392/2010 Judge: Anil C. Singh 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON.ANIL C. SINGH SUPREME COURTTCJSTKE PRESENT: - PART JurUce Index Number : 4033%&2010 DELACRUZ, ROXANNA vs. RHEA, JOHN B. SEQUENCE NUMBER : 002 - I - d/ -- INDEX NO. M O W N DATE MOTION LIEQ. NO. RESTORE ACTION TO CALENDAR - . T r fOllOWlng ppn,numbered 1 to -, h Notlcm of MotJonlOrder to Show C u m mm AnlwrlnQ Affldrvlta - Exhlblta w e n mad on thlr motlon t M o r -AMdavltm - Exhlbltm IWS). )o.. N() I NOW. Replylng Amdrvltl Upon the fongolng papon, It lo ordered that thlr motion 11 ;& J * I 2, ? L/ a I 7 i il 11 FILED OCT 0 1 2012 NEW YORK COUNTY CLERK'S OFFICE E $i J.8.C. Diad: e ..................................................................... CASE D18POSED DENIED 2. CHECK A8 APPROPRIATE: ........................... MOTION 18: QRANTED 3. CHECK IF APPROPRIATE: ................................................ 8 m L E ORDER 0 1. CHECK ONE: 0DO NOT POST NON-FINAL DlSPOSlTlON QRANTED IN PART 0OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY QF NEW YORK:PART 61 : In the Matter of the Application of ROXANNA DELACRUZ, DECISION AND ,ORDER Pet it ioner, !Index No. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, 403392/10 -against- JOHN B. RHEA, as Chairman of the New York City Housing Authority, the NEW YORK CITY, HOUSING AUTHORITY, and 1229-1273 REALTY LLC, I Respondent 1229-1273 Realty LLC moves for an order: 1) restoring this Article I 78 proceeding to the calendar; and 2) pursuant to CPLR 501 5 , vacating the February 24, 201 1 stipulation of withdrawal, settlement and discontinuance, contending that respondent New York City Housing Authority ( NYCHA ) has failed to exercise good faith and fair dealing in complying with th6 terms of the stipulation. Respondent NYCHA and petitioner oppose the motion. i Petitioner Roxanna Delacruz has resided in an apartment at 1239 Clay Avenue in the Bronx since 1993. Ms.Delacruz participates in the Section 8 program administered \ by NYCHA. Page 1 of 4 c . [* 3] Ms. Delacruz contends that, throughout her tenancy, her landlord has failed to make many necessary repairs. Since 2008, she made numerous requests for the landlord to make repairs, but the landlord repeatedly failed to show up or, when he did, he only did a few repairs. In August 2008, Ms.Delacruz was notified by NYCHA that her apartment failed a NYCHA Housing Quality Standards ( HQS ) inspection. When she received this notification, she understood it to mean that if NYCHA stopped paying the Section 8 > subsidy, it was due to the repair conditions in her apartment. ! Ms. Delacruz contends that, after the landlord failed the 2008 HQS inspection, it . continued to fail to complete repairs. - ,. r , I On December 3, 2010, petitioner filed an Article 78 petition against NYCHA and her landlord 1229-1273 Realty LLC. The proceeding sought to restore petitioner s Section 8 subsidy retroactively due to wrongful termination, On February 24,20 1 1, the parties executed a Stipulation of Withdrawal, Settlement and Discontinuance stating in pertinent part as follows: I . IT IS HEREBY STIPULATED AND AGREED, by and between counsel for the parties, as follows: (1) Petitioner Roxanna Delacmz ( Petitioner ) withdraws the petition in the above-entitled Article 78 proceeding, and this proceeding is hereby discontinued without prejudice each party to bear her,,his or its own costs and attorneys fees. (2) Petitioner submitted to Respondent New York City Housing Authority Page 2 of 4 [* 4] . ... . ( Housing Authority ) documents and information necessary to certify her continuing eligibility for the Section 8 program. The Housing Authority will determine if Petitioner remains eligible for the Section 8 program within sixty (60) days of the execution of this stipulation. If it finds Petitioner eligible, it will restore her to the program effective December 31, 2008. (3) Petitioner s restoration to the Section 8 program does not constitute an automatic reinstatement of the Section 8 subsidy payments made by the Housing Authority to Petitioner s landlord. If (a) Petitioner is restored to the Section 8 program, and (b) Petitioner s apartment #passesthe Housing Authority s inspection for compliance with federal Housing Quality Standards, the Housing Authority will reinstate the subsidy to the landlord effective January 1, 2009. The Housing Authority will not pay the landlord a subsidy on behalf of Petitioner whether prospectively or retroactively, however, for any period during which Petitioner s apartment failed to meet federal Housing Quality Standards. The landlord contends that, since entering the stipulation, NYCHA has failed to reinstate monthly subsidy payments, although petitiofier has been restored to participation with the NYCHA program. According to the landlord, NYCHA has engaged in a deliberate course of action to prohibit the landlord from collecting the outstanding subsidy, due under the stipulation, by purposefully and maliciously refusing to pass the subject premises HQS inspection. The landlord exhibits the sworn affidavit of Manny Stein, who states that he is the manager of respondent 1229-1273 Realty, LLC. Mr. Stein contends that the landlord promptly proceeded to repair all of the conditions listed by NYCHA in otdcr to facilitate the subject apartment s passing of the required HQS inspection. Specifically, he asserts that the landlord repaired every condition contained in a June 17, 20 1 1 e-mail Page3 of 4 . - . .. .-. . [* 5] list from Andrew Lupin of NYCHA. Stein asserts that the repairs have been confirmed by petitioner s attorney; however, NYCHA failed to acknowledge the correction of the conditions and continues to deliberately fail the subject apartment s HQS inspection. In response, petitioner Roxanna Ddacruz states in a sworn affidavit that, on or about April 13,2012, NYCHA again inspected her apartment. The inspector told her that the apartment failed the inspection for the following reasons: defective andor missing tiles in the kitchen flood; defective and /or missing tiles in the bathroom floor; 1 her son s bedroom needed to be fixed - the wood floor panels have gaps and are defective; the walls in the master bedroom must be scraped and painted; the wall in her son s bedroom is caving in and needs to be repaired, scraped and painted; the bedroom door needs to be fixed and/or replaced; and the bathroom door needs to be fixed andor ) replaced. In light of the facts set forth in the tenant s sworn affidavit, the Court finds that the landlord has failed to demonstrate a lack of good faith and fair dealing on the part of NYCHA. Accordingly, it is hereby ORDERED that respondent s motion to restore the proceedinfi t l e &r k ! e @ and vacate the stipulation is denied. Page4of 4 Q

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