Citywide Preserv. LLC v Roberts
Annotate this CaseDecided on July 27, 2017
Civil Court of the City of New York, Kings County
Citywide Preservation LLC, Petitioner,
against
Grace Roberts, Respondent.
95435/2016
Sperber Denenberg & Kahan, New York City, for Petitioner.
The Legal Aid Society (Brooklyn Neighborhood Office), Brooklyn, for Respondent.
Michael L. Weisberg, J.
This is a holdover summary eviction proceeding premised on the claim that Respondent's license to reside in the rent-stabilized apartment expired when the tenant of record vacated and surrendered her tenancy in August 2016. The proceeding settled with a judgment entered in Petitioner's favor on March 1, 2017, with execution of the warrant of eviction was stayed through May 31st. There were provisions for waiver of past and payment of ongoing use and occupancy. Respondent has already been granted a stay of execution of the warrant of eviction one month beyond the date by which she agreed to vacate. She has now moved for a further stay.
The apartment is located in a building that is subject to a regulatory agreement (along with 32 other buildings) between Petitioner and the New York City Housing Development Corporation whereby Petitioner agreed to rent apartments in the building to "low income tenants" as defined therein.[FN1] Respondent has lived in the apartment since around 2008. The predicate notice to quit was served in late-October 2016. The proceeding was commenced in late-November 2016 and first appeared on the calendar on December 2nd.
Respondent retained an attorney but never answered the petition. The parties settled the proceeding on March 1, 2017, the third court appearance, with an agreement wherein Petitioner was awarded a judgment of possession and immediate issuance of a warrant of eviction. Execution of the warrant of eviction was stayed through May 31, 2017 on the condition that [*2]Respondent pay use and occupancy for March and April at the rate of $1,100.00 per month and for May at the rate of $1,400.00 per month. Petitioner waived any claims to rent or use and occupancy for the period prior to the date of settlement.
Respondent paid use and occupancy in accordance with the agreement but did not vacate by May 31st. On May 17, 2017, the court (Kuzniewski, J.) granted a motion by Respondent motion to the extent of further staying the execution of the warrant of eviction through June 30, 2017 "to allow the Respondent to vacate with dignity."
In support of her current motion, Respondent alleges that she has "made a good faith effort to comply with the stipulation in this case and this court's order, diligently searching for new housing" and that she has now been offered a room for rent that will not be available until September 1, 2017. A letter confirming this, purportedly from her prospective landlord, is annexed to the motion. No use and occupancy has been paid since the payment for May, but Respondent offers to pay a month of use and occupancy at a rate of $1,100.00 per month. Copies of bank checks in this amount payable to Petitioner are annexed to the motion. At argument Respondent offered to pay another two months of use and occupancy at the rate of $1,100.00 per month within about another week or two.
It is now nine months since service of the notice to quit, eight months since commencement of the proceeding, and a few days shy of five months from entry of judgment. Had Petitioner prevailed at trial, pursuant to RPAPL 753(1) and (2), the court could have stayed issuance of the warrant of eviction for up to six months, but statute requires that such a stay be conditioned on deposit of past due and ongoing use and occupancy. It is therefore significant here that Petitioner waived claims to use and occupancy accruing prior to the date of settlement. If the court grants the relief requested by Respondent, even conditioned on payment of use and occupancy for June through August, Respondent will have obtained the benefit of relief that is better than the statutory maximum she could have obtained had she refused to settle and instead demanded a trial. And she would have achieved this by failing to comply with her agreement. By the same token, nearly all incentive that Petitioner had to settle the proceeding rather than demand a trial will have been obviated.
Respondent argues that the court should further stay eviction in the "interests of justice" to prevent unfairness, but no specific claim of unfairness is made. Respondent has already avoided the bargained for consequences of her agreement and, understandably, now seeks to avoid eviction before her new residence is available for her to move in. But, while the court is not unsympathetic to Respondent's plight, according to and under the laws of the State of New York there is no unfairness here that would warrant relief granted in the interests of justice. Instead, there is simply a tragic dearth of affordable housing and an insufficient safety net for low-income New Yorkers.
Respondent also includes a boilerplate string cite of cases that she argues stand for the proposition that "courts even consistently provide equitable relief even after the issuance of a warrant by relying on factual circumstances and the courts' equitable powers in order to avoid substantial hardship." No facts of the cases cited are provided, but research revealed that all of them are nonpayment cases and not particularly instructive with respect to the facts of this case. Regardless, one might consider that, for a low-income individual who has not yet found a new residence, eviction is always a substantial hardship. There are no special circumstances that have been presented to the court here that differentiate this case from thousands of others litigated each year in New York City Housing Court and therefore no circumstances that justify granting [*3]the relief sought.
While it is not insignificant that Respondent alleges that she can pay for the additional time that she is seeking, and there is some merit to the argument that if such payment is made then there is little prejudice to Petitioner, the court does not consider it a sufficient basis to grant the motion. That is especially the case here, where, presumably, there is a waiting list containing the names of families or individuals facing their own substantial hardship until their application for the affordable housing provided in the subject building is granted.
"New York City's shortage of affordable housing has reached a crisis point" (website of the City of New York, http://www1.nyc.gov/site/housing/problem/problem.page [accessed July 26, 2017] [also noting that there are only 424,949 rental units that are affordable to 979,142 "extremely low income" and "very low income" households]). This is common knowledge. Despite the lack of affordable housing available to her, Respondent agreed to vacate the apartment within three months rather than holding out for a different agreement. She obtained valuable consideration for her agreement (waiver of past use and occupancy). Based merely on her ability to vacate within the time she agreed, she obtained a further court-ordered stay of not insignificant length. Then, by virtue of the fact that an eviction notice had to be served, whatever delay occurred service of that notice or in the scheduling in the actual date of execution of the warrant, and the court's issuance of a temporary restraining order staying execution pending the hearing of this motion, Respondent has obtained a further stay of nearly one month. All told, nearly two months have passed since the date by which Respondent agreed she would vacate the apartment, a period equal to approximately two-thirds the length of the stay initially agreed to by the parties. No further stay is warranted.
Motion denied. All stays are vacated.
The foregoing constitutes the decision and order of the court.
Dated:July 27, 2017
Hon. Michael L. Weisberg Footnotes
Footnote 1: It is the opinion of the court that Petitioner should have pleaded the regulatory agreement in the petition (see Matter of Volunteers of Am.-Greater NY, Inc. v Almonte, 65 AD3d 1155 [2d Dept 2009] [petition defective for failure to plead existence of contract between petitioner and Department of Homeless Services]).
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