Bedford Gardens Co. v Berkowitz

[*1] Bedford Gardens Co. v Berkowitz 2006 NY Slip Op 50194(U) [11 Misc 3d 1053(A)] Decided on February 15, 2006 Civil Court Of The City Of New York, Kings County Heymann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2006
Civil Court of the City of New York, Kings County

BEDFORD GARDENS COMPANY, Petitioner,

against

SOLOMON BERKOWITZ and EDITH BERKOWITZ, Respondents.



54367/01



Attorney for Petitioner-Landlord:

Kraus & Kraus LLP

By Rita Rizzo, Esq.

33-01 Vernon Blvd.

Long Island City, NY 11106

1-718-274-5000 x 160

Attorney of Respondent-Tenants:

Tenanbaum & Berger LLP

By David M. Berger

26 Court Street

Brooklyn, New York 11242

1-718-596-3800

George M. Heymann, J.

QUESTION PRESENTED

The issue before this Court is whether to grant a stay tolling the cure period set forth in a Decision/Order of Housing Court Judge Marc Finkelstein [FN1], dated September 23, 2005, in order to preserve the thirty (30) year tenancy of the respondents, herein.

For the reasons set forth below, the Court declines to do so.

FACTUAL BACKGROUND

The petitioner, an Article II rental housing company organized under the Private Housing Financial Law of New York State (PHFL), also known as the Mitchell-Lama Law, commenced this holdover proceeding in January 2001 on the grounds that the respondents, in violation of their lease, performed unauthorized "structural changes, demolition, destruction, alteration and/or renovation of the Premises" located at 90 Ross Street, Apt. 3N, Brooklyn, New York 11211. The respondents have resided in the subject premises since 1976 and receive a rental subsidy under the Section 8 program administered by the New York City Housing Authority.

Prior to commencing this proceeding, the petitioner served a Preliminary Notice of Grounds of Eviction on December 24, 1997. Upon respondents' failure to cure, the petitioner requested an administrative hearing before the New York City Department of Housing Preservation and Development (HPD) seeking removal of the respondents.

Subsequent to a hearing at HPD on May 5, 1998 [FN2], a "Decision and /or Certificate of Eviction" was issued on July 28, 1998 by an Administrative Hearing Officer. The last three [*2]paragraphs of that "Decision" read as follows: New York Caselaw is clear that unauthorized alterations to a landlord's property will result in eviction (citation omitted). Here, the work done was so substantial that photographs of another apartment in the same line show a completely different apartment. Accordingly, a Certificate of Eviction is hereby issued. However, the Certificate of Eviction is stayed for thirty days to allow respondents to restore the property to its former configuration and to remove the alterations. (Emphasis added) It is also surprising that such a luxury renovation could be accomplished by tenants whose income is allegedly so low that they qualify for Section 8 subsidies in this already subsidized complex. I believe an investigation for fraud would also be appropriate here.

Upon respondents' second failure to cure, pursuant to HPD's Certificate of Eviction, the petitioner terminated the respondents' tenancy by service of a Notice of Termination effective December 31, 2000.[FN3]

This matter first appeared on the Court's calendar, five (5) years ago this month, on February 5, 2001. On March 14, 2001 the petitioner made a motion, returnable April 3, 2001, seeking summary judgment. On December 7, 2001, the Hon. Ronnie Birnbaum [FN4] denied the petitioner's motion for summary judgment and granted the respondents' request for a trial de novo on the grounds that the administrative determination was granted on default and the respondents "should be given an opportunity to defend against Petitioner's claims and that can be heard here."

The petitioner appealed this decision to the Appellate Term, 2nd & 11th Judicial District, which rendered a decision on July 29, 2003 granting the petitioner's motion for summary judgment and denying the respondents' cross-motion in its entirety. The Appellate Term held that: The determination of the Department of Housing Preservation and Development (DHPD), after an administrative hearing (citation omitted), that tenants violated their Section 8 lease by carrying out substantial and unauthorized renovations, may not be collaterally attacked in a subsequent summary proceeding (citations omitted) notwithstanding that said determination was taken by default'.[*3]

On September 18, 2003 the respondents filed a motion, returnable October 1, 2003, for Leave to Appeal the Decision of the Appellate Term at the Appellate Division, Second Department. By Order of the Appellate Term, dated January 8, 2004, the motion was denied. The respondents then sought Leave to Appeal in the Appellate Division which was denied on May 4, 2004.

In the interim, on March 22, 2004, the petitioner, in an Amended Notice of Motion, moved for an order restoring the case to the Court's calendar pursuant to the decision of the Appellate Term, seeking a final judgment of possession and immediate issuance of a warrant of eviction. The matter was then adjourned several times to May 18, 2005 for possible settlement and to provide the respondents an opportunity to file a cross-motion.

On May 18, 2005, Judge Finkelstein granted the petitioner's motion for immediate issuance of the warrant upon respondents' failure to cross-move. That decision reads as follows: After argument, petitioner's motion is granted. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed to and including May 31, 2005.

On June 1, 2005, the respondents moved for an Order granting them leave to reargue that portion of the motion for summary judgment that sought immediate issuance of the warrant of evection and, upon such leave, granting them leave to cure the underlying breach of the lease pursuant to RPAPL §753(4) and staying issuance and execution of the warrant pending such cure.

The petitioner opposed the motion. On August 3, 2005 both parties and the Court inspected the subject premises and the attorneys agreed to meet for settlement negotiations. Unable to reach a settlement, the attorneys argued the motion before Judge Finkelstein on September 23, 2005. In a short form Decision/Order rendered that same day, the Court held: After argument, respondents' motion (A) is granted, with consent of petitioner to the extent of staying issuance of the warrant pursuant to RPAPL 753(4) for ten (10) days for respondents to cure the breach administratively determined. (Emphasis added)

Thereafter, on October 14, 2005, ten (10) days after the cure period expired, the respondents made the instant motion seeking an Order tolling said ten (10) day cure period to November 18, 2005 and staying issuance of the warrant accordingly.

CONCLUSION OF LAW

If ever there was a "summary proceeding" in Housing Court that cried out for finality this is it. As previously noted, this case has been pending in court for five (5) years, not to mention that the petitioner initiated the process of notifying the respondents of their breach as early as December, 1997, more than three (3) years prior to the first court appearance.

To date, the respondents have not cured the extensive breaches of their lease as fully set forth on page 5 of the HPD Decision and/or Certificate of Eviction dated July 28, 1998: It is clear from all the evidence that the respondents have substantially altered the subject apartment in violation of their lease. They completely [*4]reconstructed their kitchen, dining area and entry hall by installing new cabinetry throughout, moving walls, moving gas and electric lines and installing new hardwood floors in the living room. All the countertops and backsplashes, plus a new built-in dining table, are made of granite. All of this work was done furtively and without the knowledge or authorization of petitioner. Respondents also created a potentially dangerous situation for other tenants as utility and gas lines were moved without New York City permits or any oversight by building management. No insurance was provided and it is not known if the work was done by licensed plumbers and electricians.

Once again, the respondents are seeking a further stay from the Court to "cure" that which they have failed to do after all this time. Although the respondents argue that the Housing Court has broad equitable powers to resolve housing disputes (CCA §110) and that RPAPL §753(4) provides for a ten (10) day cure period, it cannot be disputed under the circumstances herein that the Court did, in fact, utilize its inherent powers to provide the respondents extension upon extension to rectify the situation.

The respondents respectfully refer the Court to the matter of 57 E54 Realty Corp. v. Gay Nineties Realty Corp., 71 Misc 2d 353, 335 NYS2d 872 (AT1, 1972) wherein the Appellate Term stated that "[t]he law abhors forfeitures of leases....". While that may be true, this Court will not sanction the conduct of tenants who can state unequivocally that they "absolutely stand ready, willing and able to effectuate a cure of the breach as allowed them by this court's 9/23/05 Order...and the Petitioner's consent therein" (Respondents' Attorney's Affirmation, September 30, 2005, ¶ 9) when, at every juncture where that opportunity was presented, absolutely nothing was done. The Court finds that these hollow words and promises are nothing more than another attempt to forestall the inevitable, and concludes that its equitable powers require an end to this long drawn out charade.

The respondents have been given more than ample opportunities to cure their breach. Having failed to cure after the first notification by the petitioner in December 1997, they were given a second opportunity when the HPD Administrative Hearing Officer granted a thirty (30) day stay for respondents to restore the property to its original configuration prior to the unauthorized alterations. That would have required completion by the 28th of August, 1998.

Notwithstanding that over seven (7) years had come and gone without any action on the part of the respondents to cure, they again pleaded with the Court in August, 2005 for yet another opportunity to do so. Over petitioner's objection, Judge Finkelstein granted another ten (10) day stay in the Decision/Order dated September 23, 2005, as set forth above.

Now, five (5) months after that ruling, the respondents, once again, in the motion returnable October 14, 2005, beseech this Court for a fifth stay since 1997 in an effort to prevent the petitioner from obtaining that which it was entitled to immediately upon the denial for leave to appeal the Appellate Term's determination granting summary judgment to the petitioner on July 29, 2003.

At every stage of this proceeding, from prior to its inception through the present, the respondents were afforded numerous opportunities to rectify the breaches of their lease which they, themselves, created. Their knowing and willing failure to do so (i.e.: failing to cure after the [*5]initial notice; failing to appear at the administrative hearing; failing to timely file an Article 78 proceeding in Supreme Court to challenge the HPD ruling and, thereafter, having lost this matter on appeal to the Appellate Term and subsequently failing to comply with two (2) additional stays by the Court) warrants a forfeiture of any further opportunity to be rewarded with an additional stay of the issuance of the warrant and/or execution of the warrant.[FN5]

As former President Harry S. Truman aptly stated : "The Buck Stops Here".

Not only would it be inappropriate for this Court to sit as an appellate court to review and alter the decision of a colleague of concurrent jurisdiction, a fortiori, it would be even more inappropriate where the Appellate Term has already reached a determination that the petitioner is entitled to possession of its property.

Accordingly, the respondents' motion tolling the stay period is denied and the petitioner is awarded a final judgment of possession with issuance of the warrant and execution thereof forthwith.[FN6]

This constitutes the decision and order of the Court.

Dated: February 15, 2006 ______________________________

GEORGE M. HEYMANN, J.H.C. Footnotes

Footnote 1: Effective October 2005, Judge Finkelstein was transferred to New York County Housing Court at which time this Court was assigned to preside over Part A.

Footnote 2: The date for the hearing was scheduled in consultation with both parties and respondents failed to appear, which resulted in an inquest being conducted.

Footnote 3: No Article 78 proceeding in Supreme Court was filed by the respondents and therefore the "Decision and/or Certificate of Eviction" issued by HPD on July 28, 1998 became final and binding on the parties on November 28, 1998. -2-

Footnote 4: Judge Birnbaum currently presides in Queens County Housing Court.

Footnote 5: It should be noted that in the motion dated September 30, 2005, returnable October 14, 2005, the respondents were seeking a stay until November 18, 2005 based on the fact that they could not complete the work during the stay period provided by Judge Finkelstein due to observance of religious holidays. They claim that they had "contracted for work to begin in their apartment on Monday, October 31, 2005- to continue day-to-day until complete, though this may take a few weeks." After several adjournments by the attorneys, in an attempt to reconstruct portions of the file which is no longer available, the motion was submitted to this Court, for the first time, on January 25, 2006. Clearly, between October 31, 2005 (the date the work was allegedly to commence) and January 25, 2006 (the date of submission of this motion) the respondents had almost three (3) additional months to "cure" which, had they done so, would have rendered the instant motion moot.

Footnote 6:As stated in footnote 5, supra, this Court does not have the file available and thus it is unable to determine whether a final judgment has been entered and a warrant previously issued. If the judgment and warrant have been entered and issued, respectively, then said judgment and warrant are to remain in full force and the petitioner may execute upon said warrant forthwith.