224-232 Atl. Ave. Invs., LLC v Gonzalez
Annotate this CaseDecided on April 10, 2017
Civil Court of the City of New York, Kings County
224-232 Atlantic Avenue Investors, LLC, Petitioner, Landlord,
against
Anna Marie Gonzalez, Respondent-Tenant.
L & T 69334/16
Heiberger & Associates, P.C.
Joshua Zukofsky, Esq.
589 Eighth Avenue, 10th floor
New York, NY 10018
(212) 532-0500
jzukofsky@heibergerlaw.com
MFY Legal Services, Inc.
Jason Blumberg, Esq.
299 Broadway, 4th floor
New York, NY 10007
(212) 417-3711
jblumberg@mfy.org
Frances A. Ortiz, J.
Recitation as required by CPLR 2219(a), of the papers considered in the review of the respondent's post eviction order to show cause.
Papers/Numbered
Order to Show Cause & Affirmations 1
Affirmation in Opposition 2
Reply Affirmation 3
Sur-Reply 4
Sur-Sur-Reply 5
This is a non-payment proceeding brought against the rent stabilized tenant, Anna Marie Gonzalez ("Ms Gonzalez") by petition dated May 10, 2016. The petition seeks rent from December 2015 through May 2016 for a total amount of $1, 210.08. Paragraph seven of the petition states that this landlord and tenant are parties to a Section 8 lease approved by the New York City Department of Housing Preservation and Development ("HPD") as the public housing agency administering the Section 8 benefits. The affidavits of service for the rent demand, notice of petition and petition all show conspicuous place service. Respondent failed to answer. As a result, petitioner sought a default judgment against Ms. Gonzalez. A default judgment was entered against her on June 22, 2016. Ms. Gonzalez was evicted on or about July 14, 2016. Subsequently, she learned of her eviction while temporarily rehabilitating at a nursing home. She retained counsel who on September 16, 2016 moved by this instant post eviction order to show to be restored to possession of the premises. From September 16, 2016 to March 28, 2017 the matter was adjourned multiple times for opposition, reply, sur-reply, sur-sur-reply and settlement. At the March 28, 2017 oral argument the attorneys informed the Court that throughout the last six months, they diligently worked to settle the matter but ultimately were not able to do so. Under these post eviction circumstances, the Court informed the attorneys that a hearing would be appropriate. However, the attorneys agreed on the record that a hearing would not be necessary because the overall facts were not in dispute. Accordingly, the Court took the motion on submission and reserved decision.
Ms. Gonzalez in her affidavit in support of her order to show cause states she is eighty-one years and has resided at the rent stabilized premises for the last forty-one years. She asserts that she has been a long time Section 8 recipient from the New York City Housing Authority ("NYCHA"). She also explains that she suffers from medical ailments requiring in-patient treatment. She has been at the nearby Cobble Hill Nursing Home since December 18, 2015 and that petitioner was aware of her hospitalization. Despite such knowledge, she states petitioner failed to serve her at the nursing home. She says she spoke to petitioner's agent, Alexandra Smith, several times and was never told about the instant non-payment petition or default judgment. She only learned about the eviction during her discharge plan. She further denies having spoken to Lizmyli Ramos at the subject premises on May 27, 2016 regarding her military status. She was not at the subject premises that day because she was hospitalized. She is now ready to be discharged and return to her home. (Aff'd Gonzalez ¶s 1-9).
Respondent argues in her order to show cause that she must be restored to possession of her apartment based on this Court's discretion under these legal and factual circumstances. Additionally, respondent argues the petition must be dismissed for failure to comply with the Williams Consent Decree. The Williams Consent Decree requires landlords who accept NYCHA Section 8 subsidies to obtain certification for approval or disapproval before initiating a non-payment proceeding in court against its tenants. Here, there was no such approval as it erroneously stated on the petition that HPD was the public housing agency administering the Section 8 subsidy. Alternatively, respondent argues if the petition is not dismissed, the Court should appoint a Guardian Ad Litem ("GAL") for respondent and vacate all judgments and orders. A GAL shall be appointed for adults incapable of defending or prosecuting their rights based on mental or physical incapacity. CPLR 1201. Here, respondent was physically incapable of defending herself, since she was hospitalized for months and is [*2]eighty-one years old.
Petitioner in opposition argues that respondent was lawfully evicted on July 14, 2016 and waited over fifty days to file the instant order to show cause. Actually, petitioner claims it waited over one month after the eviction to start renovations in the apartment including removal of kitchen cabinets, bathroom and kitchen fixtures. Therefore, it claims it would be "impossible" to restore respondent to the current apartment condition. Respondent's possessions are in a Manhattan storage facility. Lastly, petitioner argues that respondent fails to state an excusable default or meritorious defense warranting vacatur of the default judgment against her. CPLR 5015
The Williams Consent Decree requires dismissal of a case if a landlord has improperly commenced a non-payment proceeding against a NYCHA Section 8 participant. Improper commencement includes failure to certify to NYCHA the grounds for the proceeding that would constitute a lawful basis for the eviction of a Section 8 tenant participant. 1994 WL 323634, Williams v New York City Housing Authority et. al., No. 81 Civ. 1801 (SD NY July 5, 1994); Jennie Realty v Sandberg, 125 Misc 2d 28 (AT 1st Dep't 1984); Townhouse West, LLC v Williams, 19 Misc 3d 847 (Civ Ct. NY Cty 2008). Here, petitioner failed to obtain certification from NYCHA before commencing this non-payment proceeding. The Court is not persuaded by petitioner's argument that it was not aware of respondent's participation in the NYCHA Section 8 program, instead of HPD Section 8. Respondent in her supporting documents annexes proof of a letter mailed from NYCHA to the current petitioner "224-232 Atlantic Ave Investor LLC" regarding respondent's annual review. (Exhibit B to Sur-Sur-Reply) The document is dated August 20, 2015. This demonstrates that petitioner had notice of respondent's NYCHA Section 8 participation as far back as August 2015.
The Court of Appeals has found that in appropriate circumstances the Civil Court may vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed. Matter of Brusco v Braun, 84 NY2d 674 (1994). The Court of Appeals in Matter of Brusco v Braun, supra cited Solack Estates v Goodman, for this proposition. Solack Estates v Goodman, 78 AD2d 512 (1st Dep't 1980). Solack Estates supra involved a non-payment proceeding where the elderly, long term tenant was vacationing in Florida and defaulted. The landlord obtained a default judgment against her, and she was subsequently evicted. The Appellate Division, First Department found that the Civil Court properly vacated the warrant of eviction and restored her to possession. Additionally, other factors considered by Courts to determine whether good cause exists to vacate the warrant of eviction and restore a tenant to possession are the length of the tenancy, rent regulatory status of the premises, health circumstances and age of the tenant. Parkchester Apts. Co. v Scott, 271 AD2d 273 (1st Dep't 2000).
Here, some of the facts of Solack Estates supra are analogous to the respondent who is eighty-one years old and has resided at the premises for forty-one years. She defaulted as a result of her hospitalization and medical condition. Subsequently, she was evicted and is seeking restoration on the basis of an excusable default, meritorious defense and good cause. First, she was never notified of the proceeding because she was in the hospital. Second, the meritorious defense is the petitioner's failure to comply with the Williams Consent Decree. Third, respondent is a long term, elderly, medically fragile, rent stabilized tenant. These are key factors Courts consider as good cause to vacate the warrant of eviction and restore a tenant to possession. Parkchester Apts. Co. v Scott, supra.
Moreover, respondent has made a greater showing beyond good cause for vacatur of the judgment and warrant based on petitioner's failure to comply with the Williams Consent Decree. Regardless of the circumstances, petitioner would not have been able to proceed with this non-payment because it failed to obtain certification from NYCHA before commencing the proceeding. Therefore, the judgment and warrant could not have been issued.
Based on the foregoing case law and respondent's ability to satisfy CPLR 5015 for vacatur of the default judgment standards, and factual circumstances, respondent has shown good cause to vacate the warrant of eviction and restore her to possession.
Accordingly, the respondent's post eviction order to show cause to be restored to the subject premises, vacate her default and dismiss the petition is granted. Respondent is awarded a judgment of possession as against petitioner and shall be restored to possession within two weeks of the date of this decision. This time frame will allow petitioner an opportunity to restore the subject premises to a habitable condition including the restoration of the kitchen cabinets, bathroom and kitchen fixtures. NYCCCA §110 (c). Upon such restoration, respondent shall be made whole. Since this was not a proper eviction, petitioner to remove respondent's possessions from the storage facility and return it to the subject premises forthwith at petitioner's expense.
This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below.
Dated: April 10, 2017
Brooklyn, NY
_________________________________
Frances A. Ortiz, JHC
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