1704 Morris Ave. LLC v Plasencia
Annotate this CaseDecided on February 9, 2018
Civil Court of the City of New York, Bronx County
1704 Morris Avenue LLC, Petitioner
against
Maria Adalgisa Plasencia, Respondent.
L & T 901810/16
BRIAN A. STARK
Attorneys for Petitioner
By: VLADIMIR AMPOV, ESQ
1325 Castle Hill Avenue
Bronx, New York 10462
MARIA ADALGISA PLASENCIA
Respondent, pro se
Sabrina B. Kraus, J.
BACKGROUND
This summary nonpayment proceeding was commenced by 1704 MORRIS AVENUE LLC (Petitioner) and sought to recover possession of store No.6 located at 170 East 174th Street a/k/a/ 1704 Morris Avenue, Bronx, NY 10457 (Subject Premises), based on the allegation that the tenant of record, MARIA ADALGISA PLASENCIA (Respondent) failed to pay rent for the Subject Premises. The proceeding was settled in June 2017, pursuant to a stipulation providing for a payment schedule for arrears. On February 1, 2018, Petitioner executed a warrant of eviction, even thought it had received all payments due under the stipulation as of said date.
Respondent's post eviction order to show cause was granted to the extent of setting the matter down for a hearing. The hearing took place on February 8, 2018, and at the conclusion of the hearing, the court reserved decision.
[*2]PROCEDURAL HISTORY
Petitioner issued a rent demand, dated November 4, 2016, seeking rent for October and September 2016, at $1462.32 per month, and $7688.73 for water charges. The notice of petition and petition were filed on December 2, 2016, and proof of service was filed December 6, 2016.
On December 19, 2016, Respondent appeared pro se and filed an answer asserting a general denial.
An initial court date was set for December 27, 2016. Petitioner failed to appear, and the proceeding was dismissed. A motion to vacate the dismissal was granted by the Court (Ramseur, J), and a trial date was set for May 24, 2017. The trial was adjourned to June 29, 2017, to resolve discrepancies concerning the bills for water usage, and for possible testimony by a plumber.
On June 29, 2017, the parties entered into a stipulation of settlement, awarding Petitioner a judgment in the amount of $16,049.28, and forthwith issuance of a warrant of eviction. Execution of the warrant stayed pursuant to a payment schedule running through January 2019. After receipt of an initial payments of $5849.28, there were agreed remaining arrears of $10,200.00. Respondent agreed to pay $2500 plus July rent on or before July 21, 2017, and then $486.25 towards remaining arrears, plus the current rent, by the 21st of each month from August 2017 through January 21, 2019. Upon default, the stipulation provided for execution of the warrant, after service of a notice of eviction.
On July 26, 2017, the warrant of eviction issued.
On December 5, 2017, Joel Marte-Plasencia (JP), Respondent's son, submitted an order to show cause for the court's signature, stating he had paid late, because the checks were lost, but asserting that the monies due under the stipulation had been paid. The court declined to sign the order to show cause, because the movant was neither the Respondent nor a party to the proceeding.
The following day, Respondent's application for an order to show cause was signed, and a court date was set for December 21, 2017. Respondent's affidavit in support stated she paid late, due to a lack of funds, but that the payments had been made. Respondent failed to appear on the return date, and the motion was denied.
On February 1, 2018, the Marshall executed the warrant and Respondent was evicted.
On February 5, 2018, Respondent moved for an order to be restored to possession. The court granted the motion to the extent of setting the matter down for a hearing onn February 8, 2018.The hearing took place on that day and at the conclusion of the hearing, the court reserved decision.
FINDINGS OF FACT
Petitioner credited Respondent with the following payments on the dates indicated:
$5849.28 on June 28, 2017$1948.57 on November 1, 2017
$3962.32 on August 9, 2017$3628.24 on December 12, 2017
$2452.46 on August 28, 2017$486.25 on December 29, 2017
$1948.57 on October 2, 2017$1948.32 on January 25, 2018
The dates that the payments are credited may be later then the dates Petitioner received the payments, but it is undisputed that Respondent made many of the payments late. It is also undisputed when Petitioner executed on the warrant, on February 1, 2018, Respondent had [*3]made and Petitioner had accepted and cashed all payments due under the stipulation as of that date. The last payment made by Respondent, was credited only four days after the date it was due, and one week before the eviction date. Additionally, Respondent received its regularly monthly billing statement from Petitioner with a statement date of January 24, 2018, and a payment due date of February 1, 2018 (Ex B).
JP, Respondent and Neyda Rosario (Rosario) all testified credibly at the hearing.
JP had initially attempted to deliver the payments due under the stipulation in person at the office of Petitioner's managing agent. However, Rosario told him that Petitioner's policy was to no longer allow payments to be made in that way and told him he was required to mail the payments in. Respondent's compliance with this request contributed to some of the delay in the date that Petitioner actually received the payments.
Respondent and JP received a marshall's notice in December, which is why she and JP made the order to show cause applications, however, Respondent testified that she forget to appear on the December 21 return date, and assumed that because Petitioner had cashed the payments, Petitioner did not intend to go forward on the eviction. Neither Respondent nor JP received a Marshall's notice in January.
Petitioner's counsel argues that even though Petitioner had accepted and cashed all the late payments, it was entitled to execute on he warrant because the payments were made after the 21st of each month. Respondent and JP argued that because all the payments were cashed prior to any eviction, they assumed based on Petitioner's course of conduct during the stipulation, that the lateness of the payment was excused and the default waived by Petitioner.
Respondent testified that she had several years remaining on her lease, but no lease was submitted into evidence.[FN1]
DISCUSSION
A stipulation is an independent contract which is subject to the principles of contract law (Adelsberg v Amron 103 AD3d 571).
Enforcement of stipulations of settlement is favored, but remains subject to the supervision of the court, which retains the power in appropriate circumstances, to vacate a warrant of eviction and return a tenant to possession even after the warrant has been executed (Harvey 1390 LLC v. Bodenheim, 96 AD3d 664; Iltit Associates v Sterner 63 AD2d 600; CPLR §5015; CCA§ 212). Whether good cause exists is discretionary and must be determined by the court based on the particular facts and circumstances presented (102—116 Eighth Ave. Assoc. v Oyola, 299 AD2d 296).
Issuance of the warrant annuls the landlord tenant relationship [RPAPL§ 749(3)]. A landlord generally does not have an obligation to inform the tenant that he intends to accept money tendered for overdue rent prior to execution of the warrant and still evict (J.A.R. Management Corp. v Foster 109 Misc 2d 693).
The Respondent's argument is essentially waiver. Respondent believed that Petitioner had waived the right to execute the warrant, and that the stipulation remained in full force and effect, given Petitioner's continued acceptance of the late payments.
Any provision of a stipulation, like a contract is subject to waiver, particularly a provision requiring timely payment (Madison Ave. Leasehold, LLC v Madison Bentley Associates, LLC 30 AD3d 1).
Out of simple fairness, a party that has repeatedly waived a condition of performance, particularly the timeliness of payment, is required to give notice that its waiver has been withdrawn before demanding strict compliance with the condition (see Bank Leumi Trust Co., 180 AD2d at 590, 580 N.Y.S.2d 299; Calamari and Perillo, Contracts § 11.32, at 447—448 [4th ed.] ). This requirement simply recognizes the reasonable expectations that arise from a course of conduct. (Id at 8).The court finds that Respondent was reasonable in believing that based on Petitioner's acceptance of all the prior late payments under the stipulation, that Petitioner would not proceed with the eviction on February 1, 2018, because as of that date all defaults under the stipulation had been cured. Indeed, the January payment credited on January 25 was only a few days late.
However, the court is also mindful of the fact that Petitioner has incurred additional costs as a result of Respondent's defaults.
Based on the foregoing, the court finds that Respondent is entitled to be restored to possession upon payment of $1000.00 in attorneys' fees to Petitioner by certified funds or money order on or before February 16, 2018. Upon said payment, Respondent shall be restored to possession forthwith, and the stipulation of settlement reinstated. Upon default, all stays are vacated.
This constitutes the decision and order of the court.[FN2]
Dated: February 9, 2018
Bronx, New York
Hon. Sabrina B. Kraus, J.C.C. Footnotes
Footnote 1: Petitioner had agreed to provide a copy of the lease to the court after the completion of the hearing, but no such document was provided.
Footnote 2: Courtesy copies of this decision were emailed to both parties.
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