1745 Caton Ave. Assoc. v Phillipes

[*1] 1745 Caton Ave. Assoc. v Phillipes 2015 NY Slip Op 51323(U) Decided on September 4, 2015 Civil Court Of The City Of New York, Kings County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2015
Civil Court of the City of New York, Kings County

1745 Caton Avenue Associates, Petitioner,

against

Mary Phillipes et al., Respondents.



59620/11



Petitioner's counsel

Goldberg and Lustig, PLLC

188 Montague Street, Suite 500

Brooklyn, NY 11201

(718) 858-4250

Guardian for respondent Phillipes

Jaimie Lathrop, P.C., GAL

641 President Street, Suite 202

Brooklyn, NY 11215

(718) 857-3663

Respondent pro se

Caricia Belkhaouas

1745 Caton Avenue, Apt. B-6

Brooklyn, NY 11226

(No Known Phone Number)
Gary F. Marton, J.

Petitioner moves for a judgment of possession, the issuance of a warrant of eviction, and an award of attorney's fees. The guardian ad litem ("GAL") cross-moves for a monetary award pursuant to CPLR § 1204. Both motions are denied.

The above-captioned proceeding was brought as a holdover predicated upon an allegation of chronic nonpayment of rent. The premises at issue is a rent-stabilized apartment. Respondent Mary Phillipes, 77 years old when this proceeding was commenced, has been the tenant of record since 1991. By a stipulation "so ordered" on the proceeding's first return date of March 11, 2011, respondent Belkhaouas was added as a co-respondent and by a stipulation "so ordered" on November 2, 2011 she was substituted for "Jane Doe." Belkhaouas alleges that she lives at the premises and is Phillipes' daughter. By an order dated August 17, 2011 the court appointed a GAL for Phillipes [FN1] .

After 23 court appearances, five or more motions, and decisions and orders dated March 6, 2013 and September 17, 2014, the parties resolved the matter with a stipulation of settlement that was "so ordered" by the court on January 21, 2015. The stipulation provided that the holdover was converted to a nonpayment, that there were rent arrears of $19,032.16 representing rent due since August, 2013 at the rate of $1,057.62 per month, that all arrears would be paid by March 6, 2015, and that Phillipes would enroll in a financial management program that would ensure the payment of rent by routing her Social Security payments directly to petitioner. It is uncontested that $16,000.00 was paid by March 11, 2015 and that by April 8, 2015 all rent due through April 30, 2015 had been paid [FN2] .

Now, by a notice of motion dated March 19, 2015, petitioner moves for a final judgment of possession, the issuance of a warrant of eviction, and an award of attorney's fees; the GAL cross-moves for a monetary award pursuant to CPLR § 1204. Petitioner bases its motion on the January 21, 2015 stipulation. Paragraph 14 thereof provides that upon any breach by respondent, petitioner might move "for a final judgment, issuance of a warrant forthwith & any & all appropriate relief including but not limited to reasonable attorneys [sic] fees incurred as of the date of the motion."

The stipulation provided that all rent arrears were to be paid by March 6, 2015. They were not. Instead, $16,000.00 was paid by March 11, 2015 and all rent due through April 30, 2015 was paid by April 8, 2015, thereby ending this nonpayment proceeding and precluding the entry of a judgment and the issuance of a warrant. Especially in view of this proceeding's duration of 50 months, the court holds that by paying all rent due within one month of the stipulated date, respondent's compliance was substantial and the breach was both de minimis and promptly cured. See, e.g., Wira Assoc. v Easy, 2015 NY Slip Op 51203(U), (App Term, 2nd, 11th [*2]and 13th Jud Dists, 2015) and the cases cited therein. Petitioner's motion is denied.

The GAL's service in this case has been extraordinary. Not only has he defeated petitioner's efforts to evict his ward from her residence of the past two decades and in addition has secured the payment of rent for that residence for the foreseeable future, he also has benefitted petitioner by securing the payment of tens of thousands of dollars in what otherwise would have been, most likely, uncollectible claims. Yet in the heavily negotiated stipulation of settlement "so ordered" on January 21, 2015 respondents agreed at paragraph 12 to release petitioner from any claim for legal fees and that the stipulation itself "shall be in settlement of all of Respondents claims, if any, to date." To grant the GAL a monetary award now would be contrary to this negotiated-for provision; the court may not re-write the stipulation so that it provides otherwise. Accordingly, the court denies the cross-motion.

The court will mail copies of this decision and order to the parties.

Dated:Brooklyn, NY

September 4, 2015

_________________________________

Gary F. Marton Footnotes

Footnote 1:The court made this appointment sua sponte after the City of New York's Human Resources Administration, upon a referral by the court, determined by letter dated July 6, 2011 that Phillipes, a stroke victim, blind in one eye, and home-bound, was not eligible for its protective services.

Footnote 2:It appears that $15,000.00 of the arrears was paid by the same agency of the City of New York that had previously determined that Phillipes was ineligible for assistance.