Hawkins v Hawkins

[*1] Hawkins v Hawkins 2012 NY Slip Op 52248(U) Decided on October 25, 2012 City Court Of Rye Latwin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2012
City Court of Rye

Lauren D. Hawkins as Executrix of the Estate of BYRON T. HAWKINS, Petitioner,

against

Janet Hawkins and John or Jane Doe, Respondents.



LT12-210



Plaintiff Finger & Finger, P.C. , White Plains, NY by Carl L. Finger, Esq.

Defendant Rocco F. D'Agostino, Esq., White Plains, NY

Joseph L. Latwin, J.

Once upon a time there was a landlord tenant proceeding that arose from a series of unfortunate events. Unlike Lemony Snicket's Series of Unfortunate Events where the parents are killed and their three children are delivered to the custody of their cousin Count Olaf, who is secretly plotting to steal their parents' vast fortune, here the parties' father passed away and the three children are left with the custody of the deceased father's real estate in the City of Rye. The Respondent occupies that property without any claim of ownership except through the Estate. There is no lease, and no occupancy agreement. Having entered into possession presumably with the consent of her late father, respondent occupies the premises simply as a licensee. Since her father is deceased, he cannot grant any continued right to possession. Apparently, the preliminary executrix, on behalf of the Estate, is unwilling to grant her sister any right to possession. Unable to work out a suitable, interim arrangement [FN1], this holdover proceeding pursuant to RPAPL 713(7) ensued. [*2]

Petitioner was appointed a preliminary executrix of her father's Will. Previously, this Court, by its October 3, 2012 decision, determined that the petitioner, as preliminary executrix, was a proper party to bring a Summary Proceeding. Now, respondent seeks to dismiss this proceeding claiming the notice to vacate was improperly and untimely served.

Petitioner served a 10 day Notice to Quit and Vacate by affixing the notice to the door of the premises on August 7, 2012 and mailing it by regular and certified mail on August 8, 2012. The notice specified that the termination date of the license to occupy would expire August 20, 2012 - 12 days after the mailing.

Respondent claims this proceeding is improper and untimely since: (1) the process server made only two attempts to personally serve respondent before resorting to affixation and mail service of the notice to vacate; and (2) the termination date did not allow for an additional five days for it being mailed. The Respondent claims 5 days should be added to the 10 Day Notice period because the notice was served by affixation and mail. Respondent computes the earliest termination date possible as August 23, 2012 based on the mailing occurring on August 8, adding on the five days for mailing to August 13, and the 10 days of the notice period to August 23, 2012 - 3 days after the date in the notice.

RPAPL § 713 permits "[a] special proceeding to be maintained where no landlord-tenant relationship exists after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735." RPAPL § 735 requires service . . . be made by personally delivering them to the respondent; . . . or if admittance cannot be obtained and such person found, by affixing a copy . . . upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail." Although the statute specifically requires "reasonable application" to gain admittance before delivery and mail service, it does not specifically call for "reasonable application" before affixation and mail service. Nevertheless, as a rule, at least two attempts at personal service, one during normal working hours and one attempt when a person working normal hours could reasonably be expected to be home, are required to satisfy the "reasonable application" standard [*3](RPAPL 735[1]; see Eight Assoc. v. Hynes, 102 AD2d 746, 748, 476 NYS2d 881 [2nd Dept 1984], affd 65 NY2d 739, 740, 492 NYS2d 15 [1985]; Martine Associates, LLC v. Minck, 5 Misc 3d 61, 62 [App Term, 9th Jud Dist, 2004]. See also, Avgush v. Berrahu, 17 Misc 3d 85, 847 NYS2d 343 [App Term 9th and 10th Jud Dist, 2007]. Here, the affidavit of service indicates attempts to personally serve respondent at 6:50 p.m. on August 6 and 1:15 p.m. on August 7 before serving her by affixation and mail.

Respondent relies on ATM One, LLC v. Landaverde, 2 NY3d 472 [2004] for the proposition that 5 days must be added when mailing is done. This Court however agrees with and follows the reasoning (without the need for re-iteration here) of the decision in 135 PPW Owners LLC v. Schwartz, 7 Misc 3d 1016(A), 801 NYS2d 238 (Table)[Civ Ct Kings County, 2005] that the holding in Landaverde, supra, is inapplicable to proceedings commenced pursuant to RPAPL §§ 713 and 735. See also, BHAP Housing Development Fund Co. v. Selby, 28 Misc 3d 1206(A), Slip Copy, 2010 WL 2682179 (Table) [Civ Ct Kings County, 2010] (The Landaverde additional five days rule was designed in order to ensure that tenants are not disadvantaged by the owner's choice of service method. The rule allows the tenant the additional time to make sure that he received appropriate notification via mail. However, there is no disadvantage to the respondent since the notice was served also in person on a suitable age person), and 170 East 77th 1 LLC v. Berenson, 12 Misc 3d 1017, 820 N.Y.S.2d 693 [Civ Ct New York County, 2006] (In case involving an unregulated apartment where a termination notice pursuant to motion to dismiss based on failure to add five extra days for mailing under the Landaverde rule after conspicuous place service is denied). Since this is a situation where there was nothing for the Tenant to cure during the notice period, there can be no disadvantage to the Tenant whether the notice is mailed or not.

Service of the notice to vacate was both timely and proper, we turn to the merits of the proceeding. At the trial, respondent stipulated that the petitioner, as preliminary executor was the owner for the purposes of this proceeding, that the notice to quit was served as described above, that the property is located within the City of Rye, and that the respondent is in possession without any further right to possession. Thus, there are no triable issues and the Court awards a judgment of possession to petitioner. [*4]

Respondent asks this Court to exercise its discretion to stay the warrant pursuant to RPAPL 751(4)(a), that says

In a proceeding to recover the possession of premises outside the city of New York occupied for dwelling purposes, . . . upon the ground that the occupant is holding over and continuing in possession of the premises after the expiration of his term and without the permission of the landlord, . . . the court, on application of the occupant, may stay the issuance of a warrant and also stay any execution to collect the costs of the proceeding for a period of not more than four months, if it appears that the premises described in the petition are used for dwelling purposes; that the application is made in good faith; that the applicant cannot within the neighborhood secure suitable premises similar to those occupied by him and that he made due and reasonable efforts to secure such other premises, or that by reason of other facts it would occasion extreme hardship to him or his family if the stay were not granted.

The respondent claims, in support of the stay, that she is a mature woman who has resided in the premises for dwelling purposes for ten years and would have continued to live there but for the demise of her father. She claims to be unable, after efforts, to secure similar, suitable premises in the neighborhood partially because of her limited and lack of verifiable income. It appears that the respondent appears eligible for a stay of the warrant.

RPAPL 751(4)(b) describes the parameters of the stay.

Such stay shall be granted and continue effective only upon the condition that the person against whom the judgment is entered shall make a deposit in court of the entire amount, or such installments thereof from time to time, as the court may direct, for the occupation of the premises for the period of the stay, at the rate for which he was liable as rent for the month immediately prior to the expiration of his term or tenancy, plus such additional amount, if any, as the court may determine to be the difference between such rent and the reasonable rent or value of the use and occupation of the premises; such deposit shall also include all rent unpaid by the occupant prior to the stay. The amount of such deposit shall be determined by the court upon the application for the stay [*5]and such determination shall be final and conclusive in respect to the amount of such deposit, and the amount thereof shall be paid into court, in such manner and in such installments, if any, as the court may direct. A separate account shall be kept of the amount to the credit of each proceeding, and all such payments shall be deposited in a bank or trust company and shall be subject to the check of the clerk of the court, if there be one, or otherwise of the court. The clerk of the court, if there be one, and otherwise the court shall pay to the landlord or his duly authorized agent, the amount of such deposit in accordance with the terms of the stay or the further order of the court.

Since the respondent was living in her father's house rent free, the rate for which she was liable as rent for the month immediately prior to the expiration of his term is $0. That property is a single family house that sits on .51 acres. There are several other houses and apartments available for rent in the City of Rye, some larger, some smaller, some nearer, some farther from the father's house, some for less rent, others for a greater rent, but there are two examples are that are the best matches. There are several other properties in the neighborhood available for rent, but none for free. The issue for respondent is not the unavailability of rental alternatives, but the lack of any other properties where she could live without paying any rent. There is a ½ acre house for rent just around the corner for $7,900 per month. There is a .38 acre house about ½ mile away for rent for $6,400 per month. The Court finds that the difference between such rents and the reasonable rent or value of the use and occupation of the premises is $7,150.00 per month.

It appears that respondent doesn't have the funds to pay that rent on an ongoing basis, however, she appears to be at least a distributee entitled to a 1/3 share of the value of the father's house having a value of several hundred thousand dollars. The online records of the Westchester County Clerk reveals no mortgage in the name of the decedent.

The Court grants a stay for up to four months upon the following conditions:

1) For as long as the stay continues, on the first day of each month the stay continues, the sum of $7,150.00 shall be credited to the estate from and against [*6]respondent's share of the estate;

2) Respondent shall maintain the premises in the same conditions as existed on the decedent's date of death;

3) Respondent shall be responsible for the removal of snow, leaves and debris from the premises and the sidewalks adjoining the premises;

3) Respondent shall keep the interior of the premises clean and neat;

4) Respondent shall make the premises available for inspection by real estate brokers, potential buyers, architects, engineers, designers, decorators, tradesman and maintenance and repair workers each day during the hours from 9:00 a.m. to 8:00 p.m.;

5) Respondent shall release petitioner and the Estate, indemnify and hold it harmless from any damage or injury arising from Respondent's or her agents, servants or employees' active or passive negligence from the date of death until she vacates the premises;

6) Respondent shall be responsible for all utility accounts for utilities serving the property, and during their occupancy, shall pay for all telephone, gas, electric, cable, water, sewer and refuse, garbage and trash removal services, if any of the premises; and

7) Respondent at her cost and expense shall keep the premises including all fixtures and appliances in good repair and condition and be responsible for, at her own expense, all repairs of any nature;

8) Respondent shall vacate the premises, leaving them empty and broom clean on or before February 28, 2013; and

9) Respondent shall, on or before November 1, 2012, deliver a writing, signed and acknowledged by her, specifically restating, agreeing to, and affirming the above conditions.

The Court directs the parties to live happily ever after.

October 25, 2012_________________________

JOSEPH L. LATWIN

Rye City Court Judge [*7]

ENTERED

__________________

Mary Jo Garrity

Appeals

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk's office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515.

Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District.

An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant.

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b). Footnotes

Footnote 1: No Fairy Godmother appeared on the return date to rescue the respondent-sister. No handsome Prince was present in the Court with anything resembling a glass slipper, although, if he wore his crown, he may not have gotten it through the magnetometer device in any event.