Clark v St. James Tower, Inc.

[*1] Clark v St. James Tower, Inc. 2007 NY Slip Op 51447(U) [16 Misc 3d 1116(A)] Decided on August 1, 2007 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2007
Supreme Court, Kings County

Jerry Clark, Petitioner,

against

St. James Tower, Inc., Respondent.



8690-07



Plaintiff's Atty: Jerry Clark Pro se

Defendant's Atty: Schechter & Brucker

Yvonne Lewis, J.

The Petitioner herein (Jerry Clark) seeks a stay of a November 21, 2006 eviction certificate, from the New York City Department of Housing Preservation and Development (HPD), after having failed to adhere to a previous July 21, 2006 determination requiring Mr. Clark to pay all outstanding carrying charges, within 15 days of the decision date, to Respondent, herein, (St. James Tower, Inc). Mr. Clark claims that Administrative Hearing Officer, Frances Lippa's failure to credit Petitioner's complaints of Respondent's breach of warranty of habitability, or acknowledge Mr. Clark 's reason as to why he did not abide by Mr. Lippa's initial resolution was an abuse of discretion and arbitrary. By way of Article 78, filed on March 20, 2007, Mr. Clark now asks the court to annul Mr. Lippa's determination.

Specifically, Mr. Clark, a pro se litigant, claims that Mr. Lippa failed to consider evidence of continual "dangerous, [and] disturbing noises" made by the tenants in the adjacent apartments (slamming and banging heavy objects, and constant tapping). Mr. Clark claims that the respondent's failure to address the problem led to endless awakenings and a subsequent inability to care for his father, whose death he feels may have been avoided if the respondent controlled the noises, and Petitioner had a clear mind to think.

Prior to the eviction decision, in response to the respondent's first two summary nonpayment proceedings (See respectively, St. James Towers, Inc v. Jerry Clark, Index No. 75132/04 & 67497/05), Mr. Clark had sought an abatement of rent, and indicated that he would not pay the full rent until the respondent repaired a hot water faucet, a wash basin stopper, a loose kitchen sink faucet, a broken hallway door and the toilet. At the time that Mr. Clark made these complaints, he never raised the issue of noise grievances.

The respondent, by its attorneys, responded to Mr. Clark's foregoing claims by requesting a dismissal of his application on numerous grounds. The respondent argues that dismissal is appropriate because, [1] an Article 78 proceeding is barred pursuant to CPLR §§ 217(1), 7802, 7803, 7804 & 3211(a)(5), since Mr. Clark commenced this Article 78 proceeding eight months subsequent to HPD's decision; i.e., beyond the four-month statute of limitations, [2] Mr. Lippa's decision was not arbitrary, capricious, or an abuse of discretion as required by CPLR § 7804(f), [*2][3] the petition is barred by res judicata, collateral estoppel, wavier and the election of remedies doctrines under CPLR § 3211(a)(5), because Mr. Clark accepted and conceded to the March 1, 2007 Stipulation that he vacate the apartment and pay the respondent the outstanding rent, [4] Mr. Clark failed to name HPD as a necessary and indispensable party pursuant to CPLR §§ 1001,1003, 321(a)(10), [5] the court lacks subject matter jurisdiction pursuant to CPLR § 3211(a)(2) because the petition became moot and non-justiciable after Mr. Clark voluntarily agreed to vacate the apartment, and [6] the petition can't be adjudicated because it is pending in another action pursuant to CPLR § 3211(a)(4) (Index No. 4610/2004).

Furthermore, the respondent emphasizes that Mr. Clark's failure to make any assertion of withholding rent due to noise, and the corresponding breach of his warranty of habitability in his original repair demands exposes his present assertion as a "last-ditch attempt to salvage his former tenancy."

In his reply to the respondent's argument that he failed to raise the issue of noise at his previous appearances, Mr. Clark provided certified complaint letters, dated October 2, 2000, December 5, 2000, and May 6, 2002, written to St. James Towers Management, as well as to the board of directors. Additionally, Mr. Clark indicated that he did not complain about the noise at the time he made the complaints of the necessary repairs because, "[he] knew nothing would be done about it, and was pursuing the Supreme Court." Further, Mr. Clark explicates that he first composed the June 9, 2005 letter to Mr. Lippa addressing the noise and breach of warranty of habitability only when he realized that his "court case [was taking] longer than [he] thought and the noise continu[ed]." Mr. Clark also responded to his default with regards to Mr. Lippa's July 21, 2006 decision by stating that he did not abide by the said decision "because it would be condoning the discredit of noise indicated in the fact finding section."

Mr. Lippa's final decision and certificate of eviction addressed what Mr Clark regards as Mr. Lippa's failure to acknowledge prevalent claims. Mr. Lippa referred to the reasons outlined in his July 21, 2006 decision, noting that he did not credit the petitioner's claims based on warranty of habitability because "Mr. Clark was in housing court on two occasions, and was not granted an abatement of the rent on either, and [because] Mr. Clark did not mention noise or the misconduct of others as problems when he wrote the housing company regarding conditions in his apartment in January 2004." Further, he notes that taken with Mr. Clark's conflicting testimony at the November 9, 2006 proceeding, "the lack of credibility color[ed] the reliability and legitimacy of Mr. Clark's testimony regarding noise."

An evaluation as to whether a determination is "arbitrary and capricious, an error of law, or an abuse of discretion is the standard of review for an administrative hearing, in which a mandamus for review is sought." (See CPLR § 7803). "The courts cannot interfere" and a decision will not be arbitrary and capricious "unless there is no rational basis for the exercise of discretion" (See Pell v. Board of Ed. Of Union Free School Dist. No 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 (NY 1974). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. (See Pell, 34 NY2d at 231).

In this case, Mr. Lippa's explanation concerning his refusal to consider Mr. Clark's noise complaints is both valid and rational in its reasoning. Mr. Lippa clearly stated that the petitioner's failure to raise claims in previous proceedings, as well as his conflicting testimony "color[ed] the reliability and legitimacy of Mr. Clark's testimony." Although others might view Mr. Clark 's claims more favorably, that fact does not make Mr. Lippa's decision arbitrary and [*3]capricious since it has a rational basis. "[I]t is well settled that a court many not substitute its judgment for that of a board or body it reviews unless the decision under review is unreasonable and constitutes an abuse of discretion." (See Id. at 232).

The failure to join a necessary party requires dismissal of an action if the action cannot be adjudicated in that party's absence (See CPLR §§ 1001(a), 1003 & 3211(a)(10). A necessary party is defined as, "persons who ought to be joined as parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." (See CPLR § 1001(a)). In suits involving public assistance programs, the governmental entity whose policies are the subject of the plaintiffs' challenge is a necessary party." (See Joanne S. v. Carey, 115 AD2d 4, 10 (1st Dept. 1986)). When the court cannot obtain jurisdiction over a person who should be joined under [CPLR §1001(a)] the court must decide whether to dismiss the case or allow the action to proceed, as justice requires. (See CPLR §1001(b)). In determining the appropriate course of action, the court must consider five factors; [1] Whether plaintiff has another effective remedy if the action is dismissed, [2] the prejudice to the defendant if the other person is not joined, [3] if and by whom this prejudice could have been avoided, [4] the possibility of other protective measures by the court, and [5] whether an effective judgment may be rendered in the event of nonjoinder. (See CPRL 1001(b)).

In the current action, HPD is a necessary party because it is the administrative agency that ordered the Decision and Certificate. Furthermore, the very purpose of the Article 78 petition is to challenge an action taken by their administrative agent. However, since the statute of limitations for joining HPD expired four months after the November 21, 2006 decision, this court is without jurisdiction to order the joinder, and it is therefore necessary to determine whether HPD is indispensable to this suit.

Weighing the CPLR 1001(b) factors, this court finds that dismissal [factor 1], would leave Mr. Clark without another means of recourse, as the statute of limitations as to HPD expired, and Mr. Clark could not properly re-file his action. There is, of course, some prejudice to HPD [factor 2], as the respondent notes, in that its material interest lies in ensuring the upholding of its decisions. However, in contrast, as a protective measure [factor 4] HPD had the opportunity to raise prevalent issues at the previous nonpayment suits, and additionally, has the ability to intervene to avoid any undue potential prejudice in any later proceedings. (See 27th Street Block Association v. Dormitory Authority of State of New York , 302 AD2d 155 (1st Dep't. 2002). Nonetheless, it is important to note that, by the time of filing, Mr. Clark had knowledge or constructively knew that HPD was the appropriate party, [factor 3] as all decisions and certificates received by Mr. Clark clearly came from HPD. Additionally, Mr. Clark alone had the opportunity to avoid this situation by timely filing his petition against HPD. Finally, this court could still render an effective judgment [factor 5] in the absence of HPD, by ordering the respondent to allow Mr. Clark to remain in the building, without affecting any of HPD's established policy. Hence, under all the attendant circumstances herein, the court finds, pursuant to CPLR § 1001 (b), that the factors justifying the continuance of the proceeding in HPD's absence weigh in favor of Mr. Clark.

An Article 78 proceeding challenging a decision of an administrative agency must be commenced within four months after that decision becomes final and binding. (See CPLR § 217). The respondent erred in claiming that Mr. Clark's filing of his request eight months after the final judgment, barred his actions due to the closing of the statute of limitations. The eviction decision became final and time began to toll 10 days after the November 21, decision, [*4]rather than the July 21, decision. Therefore, Mr. Clark's March 20, 2007 petition was timely as to the respondent. It is noted that Mr. Clark's claim would fall outside the statute of limitations with regards to HPD (rather than Respondent). However, since the court has determined that the action can proceed in HPD's absence this statute of limitations as to HPD alone will not serve to bar Mr. Clark's request.

"Any person aggrieved by a violation of [New York Real Property § 235-b] may maintain an action in any court of competent jurisdiction for: (a) an injunction to enjoin and restrain such unlawful practice; (b) actual damages sustained as a result of such unlawful practice; and (c) court costs." (See RPL § 235-F). Contrary to the respondent's claims, Mr. Clark's pending action for money damages on the warranty claim is not a valid bar to his present claim. The use of one remedy does not bar the availability of another. In addition, inasmuch as the [administrative] action is final, and not reviewable by appeal elsewhere, it presents a triable issue in this court. (See CPLR § 7801(1)).

This court must be mindful of a variety of legal standards; to wit; [1]"A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has no jurisdiction of the subject matter of the cause of action." (See CPLR § 3211(a)[2]), [2] "It is the general policy of the courts of this State where an appeal has been rendered moot to simply dismiss the appeal." (See Application of Thomas F. Ruskin v. Howard Safir, 257 AD2d 268, 271 [NY App. Div. 1999]). "The predominating factor in disposing of moot cases in the manner most consonant to justice is the nature and character of the conditions which have caused the case to become moot." (See Id. at 271). "The principal conditions to which we have looked are whether the party seeking relief from the judgment below caused the mootness by voluntary action (See Id. at 273) (citing United States Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (U.S. 1994)), [3]"Absent extraordinary circumstances, a party should not be relieved from the terms of a stipulation and courts must not interfere with stipulations freely executed by parties to litigation" (See Matter of Cecil Marquez, 750 NYS2d 517 (App. Div 2nd Dept 2002)), [4] the doctrine of collateral estoppel prevents a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against the party (See Ryan v. New York Telephone Company, 62 NY2d 494 (NY 1984)). The collateral estoppel doctrine bars re-litigation of issues decided in a stipulation. (See Gurvewy v. Lynch, 282 AD2d 367 (NY App. Div. 2001)), [5] "Res judicata doctrine bars re-litigation of issues resolved in a stipulation, and all issues related to those decided therein" (See Prudential Lines, Inc. v. Firemen's Insurance Company of Newark, New Jersey, 91 AD2d 1 (NY App. Div. 1982)), [6] a waiver is the relinquishment of a known right, which prevents a party from asserting the right. (See Jefpaul Garage Corp. v. Presbyterian Hospital in the City of New York , 61 NY2d 442 (NY 1984)).

In the instant matter, the March 1, 2007 Stipulation in which Mr. Clark voluntarily agreed to vacate the premises by July 1, 2007 renders this subsequent attempt to receive a Stay from the eviction action moot. Although Mr. Clark is a pro se litigant, and perhaps requires additional understanding in his acceptance of the Stipulation, at the time when he agreed to the Stipulation, Mr. Lippa informed him on numerous occasions of his options in regards to an Article 78 appeal. Mr. Clark clearly set out to reserve only his "rights and claims with respect to the contested $1,403.45 balance owed" in the self-written, signed Stipulation that he freely and voluntarily entered into. Furthermore, in each prior proceeding Mr. Lippa informed Mr. Clark of his options, before he agreed and signed to the conditions in the Stipulation. Additionally, [*5]Mr. Clark does not assert a lack of understanding in his attempt to receive an Article 78 proceeding, and it would therefore be procedurally improper to grant him an exception based on a lack of understanding as to the consequences of the Stipulation.

Furthermore, because this court finds that Mr. Clark is bound by the Stipulation, the respondent's arguments that the action is barred by collateral estoppel, res judicata and waiver are also valid. The issue of eviction was clearly raised in the Holdover preceding that led to the Stipulation, and the pending petition seeks to stay such eviction, which would clearly impair the respondent's already established rights.

WHEREFORE, on the basis of all the foregoing, the petitioner's motion for an Article 78 proceeding is denied on two grounds; [1] Mr. Lippa's prior decisions were not "arbitrary and capricious" and therefore may not be overturned by this court, and [2] the March 1, 2007 Stipulation renders the issue moot and serves to bar the re-litigation of issues previously addressed. This constitutes the decision and order of this Court.

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JSC