East Dr., H.D.F.C. v Carter
Annotate this CaseDecided on December 29, 2009
Civil Court of the City of New York, New York County
The East Drive, H.D.F.C., Petitioner,
against
Grace Carter, Respondent.
252529/06
Petitioner by Jose Luis Torres, Esq.
Respondent by Charles H. Small, Esq.
Ruben A. Martino, J.
Respondent moves for an order restoring her to possession and vacating the default judgment and warrant. Based on the respondent's pro se Order to Show Cause (1), Affidavit in Opposition (2), Supplemental Affirmation in Opposition (3), Reply Affidavit submitted by respondent's attorney and after an evidentiary hearing, the Court decides as follows.
This is a non primary residence case settled by stipulation on February 22, 2008. Respondent agreed to temporarily vacate her cooperative apartment so that structural repairs could be made. After the repairs were completed and respondent notified, she was to immediately occupy the apartment, begin paying maintenance and use the apartment as her primary residence. The landlord had up to a year after the move in date to restore the case if respondent failed to use the apartment as her primary residence.
Tenant acknowledges that she received the notice informing her that the renovations were completed and that she was to move in as of August 4, 2008 and begin paying maintenance. Tenant did not move in and instead arranged to do further renovations at her own expense beyond what the petitioner was required to do. She never notified management to complain about the work that was done. She went to court to inquire about her case and was informed that petitioner had to make a motion to restore the case and that her obligation to pay maintenance did not begin until the work was completed. Apparently, respondent took the position that she did not have to move back in because the renovation work she was doing was not complete yet.
Petitioner sent other letters to respondent informing her of her obligations and eventually restored the case for a judgment. Respondent claims that she never received the letters, motion [*2]or entry of judgment. Petitioner sent the papers to the subject apartment and to an alternative address which had the wrong apartment number. She stated that she does not regularly check her mail at the subject apartment and does not have a mail box key. Petitioner produced two signed return receipts which respondent claims are not her signature. However, those were addressed to the wrong apartment. Respondent never appeared for the motion and petitioner obtained a judgment of possession after inquest and eventually took possession of the apartment after the warrant was executed. Respondent then brought the instant Order to Show Cause.
The Court finds that respondent breached the stipulation. She received notice of the move in date after petitioner completed the work it was required to do. She never contacted petitioner to complain that she felt the work was not completed. She did not move back in and did not pay maintenance. Any unfinished work was work the respondent, at her own expense, chose to do. For example, she decided to change the configuration of the opening to the bathroom. This was not part of the landlord's obligation. She did not notify petitioner that she was doing this and failed to pay maintenance while she had work done.
The Court finds that respondent did not receive notice that the case was being restored.
Although petitioner sent the notice to the subject apartment, the respondent testified
that she was not regularly checking the mail. She had no mail box key and would only get her
mail from the postal carrier when she saw him. This is not to say that petitioner improperly
served the motion or other papers. She never notified petitioner that she had no mail box key nor
notified petitioner that mail should not be delivered there. There was no testimony that she ever
provided petitioner with an alternative address for mailing. She acknowledged that she did
receive the move in notice. Proof of service shows that this was sent to the subject apartment.
However, it is credible that respondent did not receive the other letters and notice of motion
because she had no mail box key. The mailings to the alternative address probably did not reach
her because she was staying in her son's apartment at 2383 2nd Avenue, apartment 3204. The
mailings were addressed to apartment 3004.
Under the circumstances, there is good cause for the Court to exercise its discretion because respondent was not aware that the case had been restored. Respondent is over 80 years old and has lived in this apartment for 42 years since 1967. She mistakenly believed that she did not have to move back in because all of the repairs were not completed. The agreement, however, did not allow her to stay out and not pay maintenance while she decided to do her own renovations beyond the work the landlord actually completed.
Her mistaken interpretation of the agreement and her failure to receive notice should not result in her loss of an apartment she has had for 42 years. The Court exercises its discretion and continues the stays of re-letting and removal of the belongings through January 31, 2010 to give respondent an opportunity to cure. If respondent pays $10,017.59, representing all of the maintenance due from August 2008 to present, plus the maintenance for January, if it becomes due, she shall be restored to possession. If not paid, all stays shall vacate. Upon restoration, the terms of the February stipulation shall continue in that respondent must immediately take possession and use the apartment as her primary residence or petitioner may move, within one year, for re-execution of the warrant upon five days notice at the subject apartment by mail. Respondent is advised to go to the Court Help Center if she needs assistance with the back maintenance. It is anticipated that the Department of Social Services and other agencies will [*3]assist her. Petitioner reserves its claim, if any, for legal fees and costs of the eviction. This constitutes the order of the Court.
____________________________
Hon. Ruben A. Martino
A.S.C.J.
December 29, 2009
Harlem, New York
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