East 10th St. LLC v Garcia

[*1] East 10th St. LLC v Garcia 2012 NY Slip Op 52152(U) Decided on November 20, 2012 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2012
Civil Court of the City of New York, New York County

East 10th Street LLC, Petitioner-Landlord

against

Yetta Garcia, Respondent-Tenant



L & T 79304/11



FISCHMAN & FISCHMAN

Attorney's for Petitioner

335 BROADWAY, SUITE 905

New York, NY 10013

YETTA GARCEA

Respondent, pro se

309 EAST 10TH STREET, APT 8

New York, NY 10009

ROBERTO LOPEZ

GUARDIAN AD LITEM

43 Eighth Avenue

Brooklyn, NY 11217-3901

Sabrina B. Kraus, J.

BACKGROUND

On May 22, 2011, the underlying holdover proceeding and a related nonpayment proceeding under Index No. 64722/2011, were assigned to Part R for joint trial. The trial [*2]commenced on that date, and prior to the Court issuing a decision, the parties entered into a global stipulation of settlement (Stipulation) resolving both proceedings. Yetta Garcia (Respondent) is eighty years old, is the rent control tenant of record and has lived in 309 East 10th Street, Apt. 8,New York, NY 10009 (Subject Premises) for over fifty years. Respondent has paid no rent for the Subject Premises since October 2010. In the Stipulation, the Respondent and GAL consented to a judgment of possession and forthwith issuance of the warrant of eviction. Respondent agreed to vacate in four months, in exchange for a compete waiver of all sums owed. Respondent now moves for an order discharging her GAL and vacating the underlying Stipulation, and the GAL moves for an order extending Respondent's time to vacate. Both motions are consolidated for disposition herein.

PROCEDURAL HISTORY

The Nonpayment Proceeding

The nonpayment proceeding was commenced by petition dated April 18, 2011, seeking $5,252.93 in arrears, through March 2011, at a monthly rent of $1058.89. Respondent appeared and filed an answer on April 22, 2011, asserting a general denial. The proceeding was originally returnable on May 2, 2011. On the initial return date, the court referred Respondent to APS and to the Assigned Counsel Program (ACP).

During the next two court dates, Petitioner sought access to the Subject Premises to make repairs Respondent had asserted were necessary. On June 1, 2011, the court noted that Respondent refused to grant Petitioner access to the Subject Premises. On June 29, 2011, the court file notes that Respondent asked that access be delayed until her health issues are resolved.

On June 30, 2011, APS notified the court in writing that Respondent was not eligible for services. The notification stated that Respondent had sufficient mental and physical capacity to handle her affairs, that she was refusing APS services and that she was able to relocate to her daughter's home. The daughter's name and phone number were provided on the notification. ACP also rejected the court's referral and did not approve Respondent for representation.

On July 27, 2011, the court made a second referral to APS and the ACP on behalf of Respondent. Respondent was again rejected from the ACP but on September 29, 2011, APS notified the court in writing, that Respondent was eligible for protective services, effective September 23, 2011. On October 12, 2011, Respondent was evaluated by Dr. Ralph Speken on behalf of APS. Dr. Speken's report indicates that Respondent had an income of $800 month, which is insufficient to pay the ongoing rent for the Subject Premises. The report also stated Respondent was uncooperative and refused to allow anyone inside the Subject Premises, including the doctor and social workers. Respondent advised the Doctor that she wished to relocate from the Subject Premises, because she was physically unable to walk up and down the stairs to the Subject Premises. The report concluded that Respondent showed some indications of major mental illness, but would not cooperate to allow the doctor to perform a complete evaluation, and recommended appointment of a GAL for the landlord tenant proceeding and an Article 81 guardian for relocation. The report further indicated that Respondent stated she would voluntarily relocate to Senior Housing.

In January 2012, the court appointed a GAL for Respondent, the GAL appeared and at the GAL's request the proceeding was adjourned to March 14, 2012, for the GAL to look into relocating the Respondent. On March 14, 2012, the proceeding was adjourned to May 1, 2012 for trial or settlement. The stipulation also provided "Respondent states that she will not provide access to the subject apartment to petitioner." On May 1, 2012, the proceeding was transferred [*3]to the expediter. On May 22, 2012, the proceeding was assigned to Part R for trial.

The Holdover Proceeding

On November 11, 2011, Petitioner issued a notice to cure demanding that Respondent provide Petitioner with access to inspect and repair the Subject Premises, pursuant to §2204.2(a)(6) of the New York City Rent and Eviction Regulations, and that Respondent provide Petitioner with a key to the Subject Premises. A notice of termination was issued December 7, 2011, and the petition issued in February 2012. The proceeding was originally returnable on February 22, 2012. On that date, the court sua sponte issued an order appointing the same GAL for Respondent as had been appointed in the nonpayment proceeding. On May 22, 2012, the proceeding was assigned to Part R for joint trial with the nonpayment proceeding.

The May 22, 2012 Trial

On the date both cases were assigned to Part R for trial, the court initially discussed settlement. The GAL indicated Respondent could not afford to pay the $20,000 in arrears that had accrued as of that date or to pay the ongoing rent. The GAL further indicated that Respondent refused to allow access to the Subject Premises to Petitioner, and insinuated that if access were to have been provided, a colliers condition would be discovered. The GAL indicated he had hoped to have APS perform a heavy duty cleaning, but that Respondent had not been cooperative in receiving services.

Based on said initial discussion, the court and parties determined that settlement was not possible and commenced the trial. At the commencement of the trial, Respondent was not in court, but she arrived at approximately 11:15 am. The Petitioner put several documents into evidence including a certified deed, MDR, and documents related to the legality of the rent sued for. Testimony was taken of Petitioner's witness and of Respondent. Respondent testified about her history and some problems with repairs. Respondent also testified that her daughter lived close to the Subject Premises.

Respondent testified that she would not allow Petitioner into the Subject Premises to do the repairs, and that she wanted Petitioner to wait until after she moved to allow Petitioner access to the Subject Premises. Respondent testified that she did not wish the assistance of her GAL, and that she wanted to move out of the Subject Premises. Respondent testified that she was working with APS to be relocated to more appropriate housing.

After Respondent's testimony, the parties started renewed negotiations and entered into The Stipulation.

THE STIPULATION

Pursuant to the Stipulation, Respondent agreed to move out in four months, in exchange for a waiver of all arrears through the date she moved. The value of the waiver calculated at the rent control rent was approximately $24,000.00, including the additional months Respondent was given to move. The nonpayment proceeding was discontinued. Respondent was allocuted by the court in detail. The court, on the record, went over each provision in the Stipulation with Respondent word for word.

The GAL was also allocuted. The GAL represented to the court that he believed the Stipulation was in the best interest of Respondent. The GAL also stated that Respondent was in agreement with the Stipulation. The GAL represented to the court that he had evaluated the Petitioner's claims and any potential defenses and determined that the Stipulation was better for [*4]Respondent then proceeding with the trials.

At the conclusion of these allocutions, the Court indicated on the record that although Respondent consented to the Stipulation, she appeared to lack capacity to fully understand the nature of the proposed settlement, never the less the court agreed with the GAL's assessment that the Stipulation was better for the Respondent then the likely outcome of the nearly completed trials, and that it was in Respondent's best interests to enter the Stipulation.

Respondent and the GAL executed the Stipulation and it was so ordered by the Court.

DISCUSSION

§1201 of the CPLR provides that a person shall appear by his GAL,if he is "an adult incapable of adequately prosecuting or defending his rights." The legal standard for appointing a GAL is much lower than an Article 81 Guardian, and the corresponding powers of a GAL are much more restricted.

The duties of a GAL in Housing Court, prior to recommending that a court accept a proposed stipulation of settlement, include obligations to: meet with the ward and make a home visit; determine what the ward desires as the outcome of the case; investigate and weigh all factors in the case; recommend a settlement that is in the best interests of the ward, which takes into account the ward's desires if feasible; develop a plan to assist the ward in complying with the stipulation; and take steps to follow through with the plan and assist the ward; and inform the court if the ward disagrees with the proposed settlement; and attempt to insure that the ward appears in court ( Advisory Notice: Settlement of GAL Cases, March 8, 2007, Civ. Ct. New York City; Arthur Management Co. v. Zuck 19 Misc 3d 260 [2008]).

Implicit in the court's obligation to supervise the GAL's work is the ability and obligation to remove or replace a GAL where appropriate (NYCHA v. Maldonado NYLJ Apr 13, 2005, p19, col 3; Pomeroy v. Thompson NYLJ Sept 18, 2002, p20, col 6). The court may exercise its discretion to remove a GAL, but only after a full and complete inquiry on the record (Stahl v. Rhee 220 AD2d 39 [2nd Dept 1996]).

In determining when removal of a GAL is warranted, factors that have been considered by courts include whether the GAL has an objective understanding of the material facts of the proceeding (In re Lockwood 309 AD2d 708 [1st Dept 2003]), whether the GAL has breached an obligation to the ward (In re Huang 2003 NY Slip Op 50859[U]), and whether the Court finds the GAL has acted contrary to the best interests of the ward (Dicupe v. City of New York 124 AD2d 542 [2nd Dept 1986]). A court should exercise its discretion to remove a GAL for just cause, or where the interests of the ward will be otherwise promoted by said removal (Ford v. Moore 79 AD2d 403 [1st Dept 1981]).

It is undisputed that the GAL in this proceeding made a home visit, discussed the proposed settlement options at length with Respondent, investigated the allegations in the petition and Respondent's asserted defenses, and then after due consideration and presenting all the facts to the court endorsed the proposed settlement. Respondent presents no valid basis for the court to order the removal of the GAL. There is no cause for the removal of the GAL nor would Respondent's interests be promoted by the removal of the GAL.

Even if Respondent had not consented to the Stipulation, A GAL may still recommend the Court accept a proposed settlement and the court may dio so if it is in the best interests of the ward. In 1976, The Court of Appeals held :

...(A) guardian ad litem may of necessity be obliged to act contrary to the desires of ... and to adopt a position adverse to that urged by his ward. .. It is incumbent on a guardian to [*5]make an objective evaluation of the circumstances and to take such action as will advance what he perceives to be the best interests of the ward; the best wishes of the ward will be relevant but not determinative (In re AHO 39 NY2D 241).

In Feliciano v. Nielsen (290 AD2d 834 [3rd Dept, 2002]), the Appellate Division held that the role of the GAL was not to follow whatever wishes the ward expressed, but rather to make an independent investigation, into the facts and circumstances, including but not limited to the ward's wishes, and then make a recommendation to the court to accept a proposal that the GAL believed was in the ward's best interests

The ultimate determination as to whether a stipulation of settlement is accepted lies with the court. While the GAL may recommend the proposed stipulation, the GAL may not unilaterally bind the ward, it is the court that must determine whether to accept the stipulation based on a totality of the circumstances.

Here, the only defense asserted by Respondent in either proceeding was a general denial, and at the point where the trial stopped it seemed likely that Petitioner would establish a prima facie case given that Respondent acknowledged repeatedly refusing access and had not paid any rent for a long period of time. The Stipulation gave Respondent months to prepare for relocation and eliminated a substantial debt as well as the entry of a money judgment for arrears. Under these circumstances, the Court concluded that it was in the best interests of Respondent to proceed with the Stipulation. Additionally, while she expressed some concerns, Respondent consented to the Stipulation and voluntarily executed the Stipulation in the presence of the Court.

Strict enforcement of stipulations is essential to the integrity of the litigation process and efficient dispute resolution (Hotel Cameron Inc v Purcell 35 AD3d 153). A failure to enforce a stipulation by the Courts, even in cases where a GAL has been appointed for Respondent would "... discourage landlords from resolving housing court matters through stipulations ... ( Id at 156)." Respondent has asserted no legal basis to vacate the underlying stipulation.

Based on the forgoing, Respondent's motion to vacate the Stipulation and dismiss her GAL is denied. The GAL's motion for an extension of time to assist Respondent in relocating is granted only to the extent of staying execution of the warrant through December 31, 2012. The Court is aware that such extension exceeds the six month limit set by RPAPL §753(1), and that Petitioner has not received any rent or use and occupancy for the Subject Premises in over two years, however given the extreme length of Respondent's tenancy, her advanced age and the obstacles faced by the GAL in relocation, the Court finds said extension is an appropriate exercise of discretion and in the interests of justice.

This constitute the decision and order of this court. [*6]

Dated: November 20, 2012

New York, New York ______________________________

Hon. Sabrina Kraus