Town of Oyster Bay Hous. Auth. v Schwartz
Annotate this CaseDecided on November 10, 2009
District Court of Nassau County, First District
Town of Oyster Bay Housing Authority, Petitioner(s)
against
Adam Schwartz, "JOHN DOE" and "JANE DOE," Respondent(s)
SP 001540/09
Deutsch, Tane, Waterman & Wurtzel, P.C., of counsel to Turley, Redmond & Rosasco, LLP, Attorneys for Petitioner, 120 Broadway, Suite 948, New York, New York 10271-0040, 212-766-4000; Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondent, One Helen Keller Way, Hempstead, New York 11550, 516-292-8100.
Scott Fairgrieve, J.
Respondent's Motion to Reargue is granted. Upon reargument, the Court denies
Respondent's motion in its entirety.
This motion stems from a summary proceeding in which this Court previously denied a Motion to Dismiss submitted by Adam Schwartz (hereinafter "Respondent"). This Court granted the Town of Oyster Bay Housing Authority (hereinafter "Petitioner") a judgment of possession, with a stay of the warrant of eviction. By notice dated August 3, 2009, Respondent now seeks re-argument of the Motion to Dismiss pursuant to CPLR § 2221 on grounds that this Court "overlooked or misapprehended the federal statutory requirement and the parties' contract to grant the Respondent a trial de novo of the merits of the Petitioner's grievance proceeding conclusion that the Respondent's tenancy should be terminated." (respondent's motion to reargue at 1).
In sum, Respondent contends that (1) by disposing of the Respondent's motion to dismiss, Respondent was not given his right to defend himself in a trial de novo of the merits of the Petitioner's case against him; therefore, Respondent is entitled to a trial de novo pursuant to either federal law 24 CFR §966.57 and New York State case law, or by the lease, (2) a trial de novo is warranted on grounds that an informal grievance hearing awards insufficient due process in comparison to summary proceeding in the District Court, and (3) the motion to dismiss addressed "solely and specifically" whether demand and acceptance of rent vitiated the termination. [*2]
Upon review of the Court's file, the Court concludes that (1) a trial de novo is not warranted pursuant to the Stipulation of Settlement Agreement (hereinafter "Stipulation") or relevant federal or state law, and (2) all other claims in regards to due process and waiver are without merit and need not be addressed in the instant proceeding.
First, it is to be noted that contrary to Respondent's assertions, this court has not "overlooked or misapprehended" Respondent's right to a trial de novo, for it was never mentioned nor requested in the initial Motion to Dismiss. The first mention of a trial de novo was asserted in this Motion to Reargue, submitted on August 3, 2009, in which this Court will now properly respond. The Court, holds that Respondent does not have a per se right to a trial de novo.
The parties in this instant case have had an on-going landlord-tenant relationship since February 1, 2001. Due to complaints about Respondent's alleged conduct from other tenants, Petitioner served Respondent with a Notice of Termination of Tenancy on November 26, 2007. In June 2008, and with assistance of counsel thereafter, the parties entered into a Stipulation in which Respondent was given another opportunity to remain a tenant on the Petitioner's premises. The Stipulation provided, in sum, that Respondent would be relocated to different apartment unit and would abide by the stipulations set forth in the agreement. The said agreement provided that Respondent must not disrupt the quiet and peaceful enjoyment of other tenants. In consideration of the agreement, Petitioner agreed to withdraw its Notice of Termination of Tenancy of November 26, 2007. The provisions entailed in the Stipulation were incorporated into the lease on June 19, 2008.
Shortly after the Respondent relocated to a different apartment, Petitioner contended that the Respondent started to engage in similar conduct banned by the previously signed Stipulation. Consequently, Petitioner, through its attorneys, issued another Notice of Termination and Notice to Vacate under cover dated September 17, 2008. Respondent exercised his right to a Grievance Hearing on November 18, 2008 to present his grievance in regards to the termination of his tenancy. At the hearing, and prior to, both Petitioner and Respondent were represented by the same counsel. The hearing officer, Leonard M. Cascone, concluded that Respondent breached the Stipulation agreement and violated his lease by disturbing the quiet and peaceful enjoyment of the other tenants while residing in his new apartment unit.
In the instant matter, Respondent argues that he is entitled to a trial de novo pursuant to the lease and state law. As mentioned above, the Stipulation agreement was incorporated into the lease; thus, both the lease and Stipulation shall be looked at together as a whole. The Stipulation is a binding document that reciprocally obligates all signatory parties. The Stipulation of Settlement was signed by both parties and their respective counsel. By signing the Stipulation, with the presence of his attorney, Respondent consented to all terms listed therein. To decide the issue at hand, attention should be directed to Paragraph 7 of the Stipulation, which states,
"In the event [Respondent] violates the lease for the new apartment (including any of the terms contained herein) during the probationary period, [Respondent] acknowledges that, in [*3]consideration for [Petitioner's] decision to not commence eviction proceedings at this time and to give [Respondent] the probationary period agreed to herein, [Petitioner] need only prove violation of this agreement at any grievance hearing and/or in the subsequent court eviction proceeding in order to be entitled to evict and shall not be required to prove the existence of any violations or conduct prior hereto. (petitioner's affirmation of opposition, exhibit 1).
By using the words, "and/or", the Stipulation's provision suggests that Respondent does not have a guaranteed right to a new trial. Respondent has already presented his case during the Grievance Hearing — a hearing that he voluntarily elected to partake in — and had an opportunity to present all relevant witnesses and evidence at that time. Additionally, Respondent was also able to confront the Petitioner's witnesses and cross-examine them. However, despite Respondent's efforts, the hearing officer decided that the Petitioner met its burden of proof and concluded that in view of the testimony presented, the Respondent engaged in prohibited conduct that authorized eviction pursuant to the parties Stipulation. There is nothing in the Stipulation or lease agreement which reveals that Respondent is entitled to a trial de novo if the hearing officer's decision was adverse to Respondent.
A review of the transcript from the hearing reveals that Respondent, represented by counsel, had a full and fair opportunity to defend himself against the allegations that he violated the Stipulation of Settlement.
Respondent cites The Municipal Housing Authority for the City of Yonkers v. Jones, 13 Misc 3d 141(A), 831 NYS2d 360 [App.Term. 2006]. In Yonkers, the Court concluded that the tenants of the Housing Authority were entitled to a trial de novo. This holding was predicated on the fact that the parties' lease agreement stated that, "a decision by the Hearing officer which denies the relief requests by the complainant shall not constitute a waiver of, nor affect, in any way, the rights of the complainant to a trial de novo or judicial review which may thereafter be brought in the matter." This lease provision differs from that of 24 C.F.R. § 966.57 because it omits the words "any" and "may have" as found in the federal regulation. Thus, the Yonkers Court gave these omissions deference and held that the omissions "affirmatively suggest that a tenant has a right to a trial de novo." (Id. at 2). The Court did not rule whether a trial de novo would be granted had these words been included in the Petitioner's Grievance Procedure.
The rationale in Yonkers is predicated upon the agreement reached between the parties which led the Court to adopt the view that Respondent was entitled to a trial de novo:
In view of the foregoing, we need not decide whether 24 CFR 966.57 (c) creates a right to a trial de novo since we find that such a right was granted by the Housing Authority in its grievance procedures (see generally New York City Hous. Auth., Nostrand Houses v. Margiato, 4 Misc 3d 135[A], 2004 NY Slip Op 50781[U], supra).
Adopting this approach, this Court concludes that the language of the parties' Stipulation of Settlement does not grant Respondent a right to a trial de novo. Respondent had a full opportunity [*4]to contest Petitioner's allegations in court. Instead, Respondent chose to settle the matters while represented by the same counsel and agreed to a probationary period. It was further stipulated that Petitioner only had to approve a violation at any grievance hearing and/or in a subsequent court proceeding. There is no language indicating that Respondent is entitled to contest this matter in court after he had a full and fair opportunity to contest to litigate in the grievance hearing.
Lastly, Respondent's other claims regarding this instant proceeding are without merit and need not be addressed.
In view of the foregoing, Respondent's Motion to Reargue is denied in its entirety. Petitioner
may proceed to evict Respondent as of January 1, 2010. No further time to extend the warrant
will be granted.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated:November 10, 2009
CC:Nassau/Suffolk Law Services Committee, Inc.
Deutsch, Tane, Waterman & Wurtzel, P.C.
SF/sb
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