Inwood Ventura Assoc., LLC v Bonomme
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Inwood Ventura Assoc., LLC v Bonomme 2016 NY Slip Op 30743(U) April 26, 2016 Civil Court of the City of New York, New York County Docket Number: L&T 77005/2015 Judge: Sabrina B. Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART D X INWOOD VENTURA ASSOCIATES, LLC, HON. SABRINA B. KRAUS Petitioner-Landlord DECISION & ORDER Index No.: L&T 77005/2015 -againstROSA F. BONOMME a/k/a ROSA BONHOMME and JOHN ROLLANO 14-28 SICKLES STREET, UNIT C18 NEW YORK, NEW YORK 10040 Respondents-Tenants “JOHN DOE” AND “JANE DOE” Respondents -Undertenants X BACKGROUND This summary holdover proceeding was commenced by INWOOD VENTURA ASSOCIATES, LLC (Petitioner) against ROSA F. BONOMME a/k/a ROSA BONHOMME (Respondent) and JOHN ROLLANO (Rollano), the rent-stabilized tenants of record of 14-28 SICKLES STREET, UNIT C18, NEW YORK, NEW YORK 10040 (Subject Premises), based on the allegation that Respondent had failed to provide access to Petitioner to effectuate necessary repairs and correct outstanding violations. PROCEDURAL HISTORY Petitioner issued a notice to cure dated August 3, 2015, asserting that two violations had 1 [* 2] been placed by HPD on May 20, 2015, one for excessive storage of material in the Subject Premises, a Class “B” violation, and one for an illegal lock at the door to the fire escape, a Class “C” violation. The notice further asserted that despite phone calls and letters, Respondent had failed to provide access. Further violations were placed on the Subject Premises by HPD in July 2015, and again access was requested but not provided. The notice required Respondent to cure by August 19, 2015, by providing access for the requested repairs. The petition is dated September 10, 2015, and the proceeding was initially returnable September 30, 2015. Respondent failed to appear and the proceeding was adjourned to November 2, 2015 for inquest. The inquest took place on November 2, 2016, and the court adjourned the proceeding for submission of proof as to Respondent’s military status. On November 25, 2015, the court, (Back, J) issued a written decision wherein a judgment of possession was entered and the court stayed issuance of the warrant to permit Respondent an opportunity to cure, by providing access within ten days of service of a copy of the order with notice of entry. Petitioner served Respondent with notice of entry on January 20, 2016. Petitioner filed an affidavit of noncompliance, dated March 1, 2016, asserting that Respondent had failed to cure . The warrant of eviction issued on March 15, 2016. An eviction took place on March 29, 2016, and Respondent came to court and moved by Order to Show Cause for an order to be restored to the Subject Premises. On that date, NMIC appeared as a friend of the court and made an application for the court to make an APS referral 2 [* 3] and to submit supplemental papers in support of the motion. The application was granted by the court pursuant to a written order, and the motion was adjourned to April 15, 2016. Petitioner opposed the motion asserting Respondent has failed to assert an excusable default and a meritorious defense. Petitioner further asserted that any restoration should be conditioned on Respondent’s payment of reasonable legal fees and marshal fees. Petitioner asserted legal fees as of March 30, 2016,totaling $4,578.75, as well as past due use and occupancy of $5,513.49 through March 2016. Finally, annexed to Petitioner’s opposition papers are photos of the Subject Premises, taken on the date of the eviction, that show that the Subject Premises was maintained in a Colliers like condition, filled with boxes and bags. Petitioner asserts that the Subject Premises resembled a garbage dump, “ ... with filth strewn and garbage piled up through out the apartment (par. 15 of aff in opp of T Rose dated 3/30/16).” NMIC submitted a supplemental affirmation which asserts that Respondent failed to appear and defend herself in this proceeding because she is mentally ill. NMIC asserted that in consulting with Respondent it became obvious that she was “out of touch with reality” and could not assist in NMIC’s attempt to defend the proceeding on her behalf. NMIC seeks an order vacating the default judgment and warrant, restoring Respondent to possession, appointing a GAL and allowing Respondent to defend on the merits, alternatively, NMIC seeks a continued stay pending the appointment of a GAL. NMIC obtained copies of a document from a Supreme Court proceeding related to Respondent’s mental illness and made an application for the court to examine the materials in camera and rely on them in making a decision on the motion. The court reviewed the materials in camera but ultimately declined to consider them in making a determination on the motion. 3 [* 4] On April 15, 2016, the motion was granted to the extent of setting the matter down for a hearing to determine if Respondent is an adult unable to adequately protect her rights in this proceeding as defined by Article 12 of the CPLR. The hearing commenced on April 15, 2016, and continued and concluded on April 21, 2016. The court reserved decision at the conclusion of the hearing. THE HEARING Respondent was the first witness to testify at the hearing. Respondent testified that she has lived in the Subject Premises for approximately 23- 24 years, with her son John Bonhomme (JB) and her daughter, Jessica. Respondent testified that she had been hospitalized against her will on multiple occasions during the last six months, including in December 2015. Respondent testified that JB, Jessica and Respondent’s mother had requested that Respondent be involuntarily committed, because her family is after her and thinks that she is mentally ill. Respondent testified that she was kept in the hospital for over a month from December 2015 to January 2016, and that she was forced to take medication. Respondent testified that there were “irregularities” associated with her hospitalization, but that she did not report them because she was a “believer.” Since being evicted, Respondent, JB and Jessica, are living with Respondent’s mother. There is a pending family court proceeding wherein Respondent is asserting that she has been abused by her family. Respondent stated that the Subject Premises are filled with boxes and bags because she is getting ready to move out. Respondent testified that JB has lived with her all his life in the Subject Premises. 4 [* 5] Respondent testified that her family has been after her for 23 years and subjected her to the risk of rape, as well as actual physical abuse, by having her involuntarily committed. Respondent stated she suffered a bloody nose due to physical abuse by the hospital staff when she was committed. Respondent acknowledged receiving documents relating to this proceeding during the past year. Respondent was focused on the fact that ‘JOHN DOE” and ‘JANE DOE” were named in the caption and that mail was sent to their attention. Respondent can speak only a few words of English and can not read English. Respondent did not show these documents to JB, but she took the documents to a local assemblyman’s office for his staff to review. Respondent testified that the staff told her the documents they were ridiculous and that she should ignore them. Respondent acknowledged that she had made complaints regarding repairs to 311. Respondent stated she called Petitioner to ask for repairs and Petitioner refused to make them, but she also testified that she is in constant communication with the new super, and that he agreed to wait on repairs until Respondent was ready to provide access. Respondent testified that the only required repairs in the Subject Premises are for the bathroom, and that she would agree to give Petitioner access in the future but only to make repairs in the bathroom. Respondent testified that she believed this court case was based on rent arrears, and that she did not want her family to participate in this proceeding, because they are trying to steal from her. When the hearing continued on April 21, 2016, both Petitioner and NMIC asked to have Respondent recalled to the witness stand. Respondent did retake the stand and continue her 5 [* 6] testimony. Some documents were admitted into evidence, including a letter from an internist stating Respondent is in good health (Ex A), a letter from Maria Rodriguez, a staff member with Assemblyman Linares stating Respondent wishes JB and Jessica to be removed from her lease 1 because she was having problems with them (Ex C), proof that Respondent had applied for assistance with rental; arrears with HRA and that as of March 18, 2016 said application was pending (Ex B) and Respondent’s lease renewal dated March 16, 2011 (Ex F). Respondent testified that when she called 311 to complain about repairs “they” told her not to let Petitioner into the Subject Premises and that Petitioner had no right to touch her possessions. Respondent testified that she was aware that her mental health was an issue in the hearing, and that she started the family court proceeding because her family was mistreating her, cursing at her, insulting her and harassing her. Respondent further testified that she believes her life is in danger because she has life insurance and her family wants to steal the policy. Respondent testified that Jessica has twice tried to strangle her, and has tried to steal her clothing. The next witness to testify was JB. JB testified that Respondent is his mother and that they have lived together in the Subject Premises for the past 23-24 years. JB testified that over this period Respondent has been in and out of hospitals, and that Respondent suffers from Schizophrenia. JB testified that after Respondent was released from the hospital in January 2016, she again stopped taking her medication, and that Respondent’s December hospitalization came about because he and Jessica had called the police due to Respondent’s erratic behavior. JB testified that he works late and that Respondent often does not give him mail that is addressed to him. JB works from 2pm to 10 pm six days a week. JB testified that Respondent 1 Neither JB nor Jessica are named on the lease for the Subject Premises. 6 [* 7] was previously hospitalized in 2013, and that between her lease and subsequent hospitalization in December 2015, Respondent went on and off her medication. JB testified that when Respondent stops taking her medication she is like another person. JB testified that Jessica is 40 years old, also suffers from mental illness and does not work. JB will not answer the door to the Subject Premises, even if he is home, because it would anger Respondent. JB was aware that the Super was seeking access to the Subject Premises to make repairs, but stated Respondent would not agree to let him in. JB stated it was possible that Respondent did not want to let the Super in, because she did not want him to see the condition of the Subject Premises. JB never saw the petition or predicate notice in this case. JB testified that Rollano used to be Respondent’s boyfriend several decades ago and helped them rent the Subject Premises, but never actually lived in the Subject Premises. JB testified that the Subject Premises has been in the condition depicted in the photographs for years, but he did not feel he could do anything about it. JB does not believe that Petitioner had knowledge of Respondent’s mental illness. The next witness to testify was Jessica. Jessica testified that she lived in the Subject Premises with Respondent for 23 years and that they do not have a good relationship. Jessica tries to insist Respondent take her medication and this causes problems between them. Jessica testified that she suffers from depression and insomnia and takes medication for both conditions. Jessica never received any of the pleadings in this proceeding, but Respondent did mention something about a court case to her. Jessica and Respondent are not currently on speaking terms. 7 [* 8] Jessica was aware that the Super was seeking access to the Subject Premises and that Respondent did not want to let him in. The next witness called was Paul Ramnarain (PR). PR is a property manager for the subject building. PR testified that the prior super, Antonio Mejia, was in the Dominican Republic and that a new super had been hired as of December 2015. PR was primarily called to explain why Petitioner did not present the testimony of the old Super at the hearing. There was no evidence at the hearing that Petitioner knew or should have known of Respondent’s illness prior to the execution of the warrant. The court finds that the preponderance of credible evidence at the hearing supports the finding that Respondent is a person unable to adequately defend her rights in this proceeding. The court finds that Respondent suffers from mental illness, that said illness escalated to the point of requiring Respondent to be involuntarily hospitalized and that Respondent’s testimony confirmed that she is unable to adequately defend her rights in this proceeding. Based on the foregoing the court will appoint a guardian ad litem for Respondent. DISCUSSION CPLR § 1201 provides that a person shall appear by a guardian ad litem if she “ ... is an adult incapable of adequately prosecuting or defending his rights.” CPLR § 1203 provides that no default judgment may be entered against an adult incapable of adequately protecting her rights, where a GAL has been appointed until twenty days after such appointment. In the practice commentaries to CPLR §1203 Vincent Alexander states “ ... if it is demonstrated upon a motion to vacate a default judgment in an action that the defendant was not 8 [* 9] adequately capable of defending, the judgment must be vacated if such defendant had no guardian ad litem at the time of the default.” However, the cases cited by Mr. Alexander in support of this proposition have an added factor not present in the case at bar, namely that a party knew or had reason to know of the incapacity at the time the default was entered [Fischer v Fischer 21 AD3d 554, 2nd Dept. 2005 (denial of motion to vacate default reversed where it was undisputed that adverse party was on notice of mental disability); Barone v Cox 51 AD2d 115, 4th Dept., 1976 (holding error to deny motion to vacate default against a party who suffered from mental deterioration where plaintiff knew or had reason to know of defendant’s condition); Sarfaty v Sarfaty 83 AD2d 748 4th Dept., 1981 (error to deny motion to vacate default judgment where husband and his attorney knew wife had been under psychiatric care and was a patient in a mental health center of a general hospital); Oneida National Bank and Trust Co. Of Central New York v Unczure 37 AD2d 480, 4th Dept., 1971 (failure of plaintiff to bring defendant’s mental disability to court’s attention required that default judgment be vacated); see also State v Kama 267 AD2d 225, 2nd Dept., 1999 (where state was on notice of patient’s mental disability, default judgment would be vacated) While the above referenced cases all concern situations where a party knew of the disability prior to the entry of the default, the language cited from the cases is more absolute. In its holding in, Oneida National Bank and Trust Co. Of Central New York v Unczure (supra) the Appellate Division, Fourth Department stated in reference to CPLR § 1201 and CPLR§ 1203: The two quoted statutory provisions are to be read together and interpreted as requiring the appointment of a guardian ad litem in every case where the defendant is an adult incapable of adequately protecting his rights, before a default judgment may be entered against him. With respect to infant defendants for whom no guardian ad litem has been appointed, the courts have long held that no jurisdiction was acquired and that judgments obtained in such actions are void. The same rule should apply to an adult incompetent. 9 [* 10] While this language is seemingly absolute and has been cited without reservation by other courts, the quote continues by stating: This places the burden upon a plaintiff who has notice that a defendant in an action is under mental disability, to bring that fact to the court’s attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendants interest. For failure of the Bank to employ such procedure to safeguard the interests of its mentally ill debtor, we hold that Special Term properly vacated the default judgment ... (Oneida, supra at 483 citations omitted, emphasis added). The proposition that default judgments against persons unable to adequately defend their rights prior to the appointment of a GAL are not void as a matter of law is further supported by other cases where courts did not grant such relief. For example, in Shad v Shad (167 AD2d 532, 2nd Dept., 1990) the husband obtained a default judgment against his wife who was mentally ill and under long term psychiatric care. The relief obtained on default included the sale of the marital residence and a warrant of eviction to remove the wife from the marital residence. The Appellate Division held that a hearing was required to determine whether a guardian ad litem should be appointed for the wife, and further held “.. . if the appointment of a guardian ad litem is deemed necessary, the wife is granted a stay of the eviction for 60 days following the appointment ... (Id at 532).” There was no finding that the underlying judgment should be vacated. Similarly, in Palaganas v DRC Industries, Inc. (64 AD2d 594, 1st Dept., 1978) the court held that a motion to vacate a default based on the allegation that a party was incapable of adequately defending his rights required a hearing not only to determine whether there was such an incapacity, but also to determine what appropriate protection should be afforded based on the facts ascertained at the hearing (id at 594). 10 [* 11] In this proceeding, there is no indication as of yet that Respondent has any meritorious defense. No meritorious defenses has been alleged either by NMIC or Respondent. Based on the record before the court as it stands, it is uncontested that violations exist at the Subject Premises, and at least some of them are based on hazardous conditions created by Respondent (ie hoarding and illegal lock on fire escape door), that Respondent not only caused the underlying condition but actually called HPD to have additional violations placed on the Subject Premises and that Respondent refused to allow Petitioner access to correct the violations. Therefore, it is not evident that the underlying judgment should be vacated as a matter of law. However, before a final determination is made in this regard, a GAL must be appointed, appear, and have an opportunity to investigate and assert any meritorious defenses, or alternatively seek any relief in regards to a cure. The motion to vacate the judgment is denied without prejudice to renewal after the GAL appears and upon assertion of a meritorious defense. The motion is granted to the extent of finding a GAL should be appointed for Respondent and restoring the proceeding to the calendar on May 16, 2016 at 9:30 am for the GAL to appear. Petitioner’s allegation that through March there is $5513.48 in past due use and occupancy and that Petitioner has incurred $4,578.75 in attorneys fees through March 30, 2016, is uncontested. The warrant of eviction shall be vacated, Respondent restored to possession, and her tenancy reinstated upon payment of $10.092.23 on or before May 16, 2016. The stay on reletting and removal shall continue in place through May 16, 2016. 11 [* 12] This constitutes the decision and order of the Court. Dated: New York, New York April 26, 2016 __________________ Sabrina B. Kraus, JHC TO: ROSE & ROSE Attorneys for Petitioner By: TODD ROSE, ESQ. 291 Broadway, 13th Floor, New York, New York 10007 212.349.3366 NMIC Legal Services As a Friend of the Court By: RAMON GUTIERREZ, ESQ 76 Wadsworth Avenue New York, NY 10033 212.822.8300 12
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