Opinion
073371/09.
Decided September 3, 2010.
Petitioner was represented by: Jason Blau, Esq.
Respondent was represented by: Legal Services NYC — Bronx, Gatsby Contreras, Esq.
This nonpayment summary proceeding resulted in respondent Shakima White (respondent) being evicted from the subject premises. A hearing on respondent's post-eviction order to show cause was held by the Court on March 18, March 24 and May 27, 2010. Respondent had been restored to possession by this Court's interim order dated March 9, 2010, and has been in possession since then. For the reasons set forth below, it is the determination of the Court that respondent's motion should be granted, she should be permanently restored to possession of the subject apartment, and her tenancy reinstated.
PROCEDURAL HISTORY
The within proceeding was instituted by 2720 LLC (petitioner) to collect rent allegedly unpaid for the months of November and December, 2009, by a petition and notice of petition (petition) dated December 21, 2009. The petition alleges that rent was demanded personally from respondent prior to the service of the petition. Respondent timely answered the petition, pro se, on January 11, 2010, and the matter was calendared for January 15, 2010, in part L.
On January 15, 2010, a settlement was reached and a stipulation was entered into between the parties and allocuted and "so ordered" by the Court. The terms of the stipulation were: a judgment was entered against respondent for $3,144.63, representing all rent due through January 31, 2010; said judgment was to be paid by February 16, 2010, and it was specifically noted that the February rent was not included and the stipulation contained a current rent provision; it was also noted that there was a disputed amount of $151.71, which, if not resolved by February 16, 2010, then petitioner could restore the proceeding to the Court's calendar. The stipulation also contained the following statement: "Above amount reflects an MCI [major capital improvement] charge of $101.14". It is not clear if this charge was "reflected" in the judgment amount or the disputed amount. The stipulation also contained a list of alleged repairs respondent said were needed in the apartment, and access dates of January 28 29, 2010, were set forth, work to be completed within 30 days.
The next time the matter appeared on the Court's calendar was March 4, 2010, on respondent's post-eviction order to show cause (OSC). In her motion respondent alleged (and the testimony later confirmed) that she had made a payment of $4,000.00 (received by petitioner and ultimately rejected and returned to respondent), representing the judgment amount plus all but $192.84 of the February rent. Petitioner appeared on the return date of the OSC, but has submitted no written opposition thereto. The Court issued what turned out to be its first interim order on that date setting the matter down for a hearing on the efficacy of the eviction for March 18, 2010, at 2:30pm. Respondent was to be given access to her belongings to obtain needed personalty and papers for the hearing. Respondent was further directed to serve the OSC on a purported new tenant.
On oral argument on March 4, 2010, it became apparent to the Court that respondent had timely paid the judgment amount plus almost all of the February rent, that petitioner had retained such payment for a period of 12 days, and then returned same to respondent, by mail, and proceeded to schedule an eviction and execute on the warrant. Respondent was out-of-state on a personal family matter (which trip she claimed she had told petitioner about) when the eviction occurred (she being notified by a neighbor by telephone that it was occurring), and by the time she had returned to New York the next day, her belongings had been removed and, allegedly, put into storage. Petitioner supplied respondent with the name and address of the moving company (Helen Sons Moving Co.), by giving respondent a copy of the bill it had received from the moving company.
Respondent returned to Court on March 5th advising that, though she had been in telephone contact with someone allegedly from the moving company, she had been unable to get any access to her belongings as the address she had been given on the previous day in Court, to wit: 3494 Park Ave., Bronx, NY, turned out not to be the moving company's address. The Court then called petitioner's counsel, advised him of this problem, and he then called the Court back with another address for the company, to wit: 1332 Commerce Ave., Bronx, NY. This address also turned out to be a bogus address — and this was ultimately verified by the Court itself visiting the address at 1332 Commerce Ave., and upon such visit, the Court was unable to find any evidence of the moving company at that address, or even a building with such address (it appeared that 1332 Commerce Ave. is an empty lot). Nor did the Court find any evidence that the moving company had an office anywhere in the vicinity. An internet search by the Court for the moving company returned both the first above cited address, as well as 1328 Commerce Ave., Bronx, NY (yet a third address, though obviously just down the street from the second address given respondent, to wit: 1332 Commerce Ave.). None of these addresses is apparently accurate. Respondent further alleged that the person she had spoken with had demanded hundreds of dollars in payment before the company would allow her any access to her belongings; that he stated that the company did not accept court orders; and threatened to auction her belongings if she did not pay its fees within 24 hours. On March 5th the Court issued its second interim order directing the moving company to retain respondent's belongings in accordance with law (it is unknown if respondent was ever able to serve the company with this order).
All of the above resulted in the Court issuing its third interim order on March 9th, in which the Court ordered that respondent be immediately restored to possession of the apartment pending the determination on the hearing, and for petitioner to produce a representative of the moving company on the hearing date of March 18, 2010. Restoration occurred, no-one from the moving company was ever produced by petitioner. The Court was advised that, as of the last hearing date, May 27, 2010, respondent had not been able to retrieve any of her belongings, their whereabouts being unknown, as well as any true address for the moving company hired by petitioner. On the first hearing date respondent appeared represented by counsel for the first time in this proceeding.
HEARING TESTIMONY
The ostensible new tenant, Elida Morales, appeared, pro se, and testified that she had filed an application with the petitioner for an apartment approximately six months prior. She received a call that an apartment had become available and saw the apartment on March 3, 2010, in the early morning. From the testimony, it appears that the actual eviction occurred on March 2nd, and respondent's belongings were removed on March 3rd. It is unclear if Ms. Morales saw the apartment before or after the removal of respondent's belongings had occurred.
Ms. Morales further testified that she was living with her parents, was going to move into this apartment with her boyfriend (fiancé?), but had not moved in. Since respondent had already been restored to possession of the premises by this Court's third interim order (see above), clearly Ms. Morales could not have possession of the apartment. Though the Court found Ms. Morales to be a truthful and credible witness, since she never actually took possession of the apartment nor changed her circumstances in reliance upon the lease she had signed with petitioner, the Court need not address the possible harm to Ms. Morales by it's decision to permanently restore respondent to possession of the apartment. It is expected that petitioner shall return Ms. Morales' deposit to her forthwith.
Respondent testified that she has lived in this apartment for 30 years. Her husband and three children live with her (they are 11, 13 and 19 years old). Respondent lives with a chronic pain condition and her 19 year old son is disabled. She acknowledged that, after the settlement of January 15, 2010, she received a rent statement from petitioner for an amount somewhat in excess of $4,300.00; that she was confused as to the correct amount actually due and "chose $4,000.00" (her words) as a round number to pay. She further stated that she knew she owed $3,144.00 on the stipulation (actually $3,144.63), and believed her rent to be approximately $956.00 without MCI increases (major capital improvements). She also advised the Court that none of the repairs required under the stipulation were done. As stated above, the stipulation of January 15, 2010, contained a disputed amount and an ambiguous reference to an MCI increase. This may explain respondent's alleged confusion as to the amount of rent due in February, 2010.
She said that the $4,000.00 she chose to pay was mailed to petitioner by certified mail, return receipt requested, and was received by petitioner on February 12, 2010. Respondent's exhibit 2 in evidence is the green card from the post office evidencing delivery on February 12, 2010, but the Court is unable to decipher the name written thereon as the person signing for the delivery. Respondent said she had called the management office on either the 12th or 13th of February and asked for and, allegedly, spoke with the person who signed for the delivery. The dates seem off to the Court, how could respondent even have the green card back on the 12th or 13th if delivery was first had on the 12th? In any event, the payment was received well in advance of the due date per the January 15, 2010, stipulation (to wit: February 16, 2010).
Respondent alleges that, in this conversation, as well as confirming that they had her $4,000.00 payment (made by cashiers check), that she was advised all was fine with her payment, and that she advised this person at management that she would be leaving New York shortly and would be gone for a period of time. She said a neighbor called her on March 2, 2010, advising her that she was being evicted; that she drove home on March 3rd, found that her belongings were being removed and the return of her check in her mailbox. As her exhibit 1 respondent entered into evidence the envelope and letter from petitioner used to return her check. The Court notes that it was post-dated February 24, 2010, twelve days after petitioner had received that payment.
Respondent testified that she stayed in a hotel while all of this was occurring (at least until this Court's order restoring her to possession of the apartment on March 9th). She said she called the telephone number for the moving company she was given on March 4, 2010, and a man claiming to be from Helen Sons came to her hotel room that night, demanded full payment of the bill and had no property list to show her. She also testified that she had visited the addresses she had been given for the moving company, one on March 3rd (3494 Park Ave., Bronx, NY — the address on the bill petitioner supplied), and one on March 4th (1332 Commerce Ave., Bronx, NY), but that she could find no evidence of the moving company at either address.
On cross-examination, respondent confirmed she had signed the stipulation of January 15, 2010; stated she did not remember the Court, nor any of its personnel, advising her that February rent was also to be paid; nor did she remember being advised to seek an order to show cause if she needed more time for payment of her rent and arrears, or if the repairs were not done. She also acknowledged that there were three months rent due on the stipulation ($3,144.63 /3 = $1,048.21/mo.); that she had received the Marshal's notice after she returned from out-of-state (she said she would have come back to Court had she been here and received the Marshal's notice in order to stop the eviction). She reiterated that when she sent the $4,000.00, she thought it included February rent (as noted above, this payment was $192.84 short of the full amount due to petitioner including the February rent).
Jennary Dufresne was subpoenaed by respondent and testified. This is the person respondent alleges signed for the mail which contained her payment, and to whom she claimed she had spoken before she left the State. Ms. Dufresne testified that she works for a mortgage lender with offices on the first floor of the building in which petitioner's management offices are located; that she receives the mail for the entire building, including signing for any mail that requires a signature, but then simply distributes the mail to the appropriate recipients, but does not open the mail. She acknowledged it was her signature on the green card. She stated that she does not work for the management office, does not answer their telephones, and does not talk with nor deal with any of the management company's tenants, ever. On cross-exam she denied ever talking with respondent.
The Court notes that, after Ms. Dufresne finished her testimony, but before she left the courtroom, she and the petitioner's agent, Robert LaTempa, exchanged what can only be termed an extremely friendly, and familiar, hug and kiss, with words of thanks from Mr. LaTempa for Ms. Dufresne's testimony.
Mr. LaTempa then testified that he works for the petitioner; their offices are on the second floor; that respondent had paid no money since the January 15, 2010, stipulation (other than the acknowledged and ultimately rejected $4,000.00); that respondent's monthly rent is $1,098.78 (which would apparently include a disputed MCI increase); that petitioner had paid $4,854.00 to the movers, incurred $850.00 in legal and Marshal fees in this proceeding, and respondent now owed $13,394.32 in total through May, 2010. Petitioner's rent history for respondent's account, dated April 15, 2010, was accepted into evidence as petitioner's exhibit 1 over respondent's objection, the parties then submitted certain documents on consent (petitioners ex. 2 — the mover's bill [which the Court notes has the address of the movers as 3494 Park Ave., Bronx, NY — which everyone acknowledges is not the correct address for the movers]; respondent's ex. 3 — the most recent rent statement from petitioner dated May 1, 2010 [which actually shows $13,424.37 owed]; and petitioner's ex. 3 — a current rent history dated May 26, 2010).
THE LAW
There can be no doubt that the Court retains the authority to relieve respondents of their defaults. See RPAPL sect. 749, which states in pertinent part:
"the issuing of a warrant for the eviction of a tenant cancels the agreement under which the persons removed held the premises and annuls the relation of Landlord/Tenant, but nothing contained herein shall deprive the Court of the power to vacate such warrant for good cause shown prior to the execution thereof.
Further, the power of a Court to restore a respondent to possession of an apartment after an eviction has long been held to exist. Brusco v. Braun , 84 NY2d 674, 621 NYS2d 291, 645 NE2d 724 (CANY, 1994), is the seminal case finding that the court retains jurisdiction of a case even after execution of the warrant. "[T]he Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed." (at pg. 682, citations omitted). See also New York City Housing Authority v. Torres , 61 AD2d 681, at 683, 403 NYS2d 527 (AD 1st Dept, 1978) where a judgment was entered against tenants on their default and a warrant of eviction issued. The Court opined that vacatur of a warrant "requires an exercise of judicial discretion. The court must therefore weigh the possible harm engendered or benefit derived by the exercise of that discretion." It has been stated that in appropriate circumstances the authority retained by the court over a summary proceeding extends to the reinstatement of a tenant even after the warrant of eviction has been executed. Solack Estates v. Goodman , 78 AD2d 512, 432 NYS2d 55 (1980); Central Brooklyn Urban Dev. Corp. v. Copeland , 122 Misc 2d 726, 471 NYS2d 989 (1984).
In Manning v. Brown , NYLJ 7/31/01, 18:1, the Court held that the Civil Court retains jurisdiction to grant post-eviction relief in an appropriate case, citing Brusco v. Braun , supra, and Parkchester Apts. v. Scott , 271 AD2d 273, 707 NYS2d 55 (2000), though finding the Civil Court did not abuse its discretion in denying the post-eviction order for restoration in this case as tenant failed to demonstrate good cause. See also Tiemann Holding (NY) Corp. v. Wei , NYLJ 12/15/00, 28:1 (the court found the default was excusable and the tenant showed a credible reason for withholding rent); 467 42nd St. Inc. v. Decker , NYLJ 10/13/00, 27:5 (AT 2 11), ("The Civil Court is authorized pursuant to CCA 212 and CPLR 5015 (d) to restore a tenant to possession even after execution of a warrant in appropriate circumstances."); Iltit Assoc. v. Sterner , 63 AD2d 600, 601; Third City Corp. v. Lee , 41 AD2d 611; Davern Realty Corp. v. Vaughn , 161 Misc 2d 550; Matter of Marluted Realty Corp. v. Decker , 46 Misc 2d 736; 260 NYS2d 988; Brusco v. Braun , supra, at 682 ("A court also has inherent power to ensure that its process is not executed in an unlawful manner."); Guardian Loan v. Early , 47 NY2d 515, 520; Sutter Houses v. Diaz , NYLJ 6/1/90 (App. Term 2 11).
The Courts have consistently held that it has the power and authority to grant post-eviction relief in appropriate circumstances. Prominence Realty Corp. v. Trueblood , NYLJ 7/9/96, 25:2, (AT 1) (a 27 year tenant unintentionally defaulted at the nonpayment trial after being told by the landlord's representative on the morning of the eviction that he would not be evicted if the rent was tendered in full. Later that day, the landlord refused to accept the money tendered because the warrant had executed. The court cited Brusco v. Braun , supra, in saying that "the Civil Court may, in appropriate circumstances vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed."); Ocean Realty Assocs. v. Mitchell , NYLJ 5/22/95, 30:1 (AT 2 11) ("Tenant's default under stipulation was de minimus, it was not an abuse of discretion of the court to restore tenant to possession."); Theresa 157 Corp. v. Mitchell , NYLJ 7/12/94 (AT 2 11); Gotteherer v. Rivera , NYLJ 2/6/90, 21:5 (the Appellate Term held the court properly reinstated a 25 year tenant owing arrears of $407.00 due to a misunderstanding where money orders never reached the landlord); El-Kam Realty Inc. v. Quickly , NYLJ 3/15/91, 21:3 NYLJ 3/21/91, 25:2 (AT 1) (a rent stabilized tenant defaulted under the stipulation but paid the full amount of arrears after the eviction. The term cited Oppenheim v. Spike , 107 Misc 2d 55, in saying, "the Civil Court retains jurisdiction, in appropriate circumstances, to restore a removed tenant to possession." The Term considered the tenant's immediate motion for restoration and the tender of the outstanding arrears); Eberhart v. Areinoff , NYLJ 9/5/95, 29:3 (AT 1) (the Court affirmed the restoration of a 20 year tenant who had insubstantially breached the stipulation based on the moderate amount due, substantial tender in court, tenant's physical and financial vulnerability and the duration of the tenancy).
Here, respondent immediately moved for an order of restoration, her default was definitely insubstantial having tendered to petitioner, timely, 95.4% of the then due rent total, and also taking into consideration that she was a 30 year tenant and her and her sons disability. The petitioner's action in holding the payment for twelve days before returning it to respondent is also a factor in the Court's decision.
Petitioner made no secret that it disliked respondent and was more than happy to be rid of her as a tenant in it's building. The obvious animosity shown by petitioner towards respondent, coupled with it having retained the quite substantial payment from respondent for twelve days; and the total failure of petitioner to produce a representative from the moving company it chose to use, and the fact that the company has, so far, proven to be a ghost, all leads to this Court's conclusion that petitioner has no credibility before the Court. Were this Court to have jurisdiction over the loss of respondent's belongings, it would exercise same without hesitation, but such jurisdiction lies elsewhere.
FINDINGS AND CONCLUSIONS
The Court finds that, though the eviction, on its face, would have been legal since respondent did fail to pay all that was owed through February, 2010, the acknowledged tender of payment respondent had made in excess of 95% of the amount then due, in and of itself, fits squarely within the cited cases finding that restoration was proper. Further, the Court determines that petitioner knowingly waited until respondent was out-of-state (having been notified of this by respondent before she left) to schedule the eviction; that petitioner lulled respondent into a false sense of security in order to evict her; and thus the eviction was, in fact, improper, and should never have occurred. See In the Matter of Marluted Realty Corp. v. Decker , supra, a wrongful eviction case where the court found that the Civil Court has the same power as the Supreme Court to reinstate a wrongfully evicted tenant. CCA § 212, Matter of MacLeod v. Shapiro , 20 AD2d 424. See also In the Matter of Wade B. Albany v. White , 46 Misc 2d 915; 261 NYS2d 361 and Papp v. Maffei , 64 Misc 2d 739; 315 NYS2d 995 (the Civil Court retains jurisdiction even after the execution of a warrant as § 212 of the Civil Court Act says the Civil Court has "all the powers that the Supreme Court would have in like actions and proceedings.").
For the most part, the Court found respondent to be a credible witness, though she clearly made some mistakes — the most glaring being her failure to make payment of 100% of the amount due. But, the Court found petitioner's agent, Mr. LaTempa, not to be a credible witness, nor did it find Ms. Dufresne to be credible.
Since Ms. Morales, the "new" tenant, had never taken possession of the apartment, nor had she changed her circumstances, there is no need for the Court to determine a balancing of the equities between the respondent and Ms. Morales, but as between respondent and petitioner, there can be no other conclusion than that for respondent not to be restored to permanent possession of the apartment, and her tenancy reinstated, would be a miscarriage of justice — equity demands that respondent be granted full relief on her motion.
It is thus the decision and order of this Court that the restoration to possession previously ordered by this Court be made permanent and respondent's tenancy be immediately reinstated. The judgment and warrant previously issued are vacated and the proceeding is dismissed. Respondent is not responsible for any legal fees, Marshal's fees or moving expenses incurred by petitioner as the Court has already determined that the eviction was improper and should never have occurred. As this Court has no jurisdiction over any damages which respondent may have incurred due to petitioner's improper conduct, she is referred to the regular Civil Court part of this Court, or to Supreme Court should she feel her damages are in excess of the Civil Court's jurisdiction, for redress of such claims as against petitioner, the moving company, or any other entities she deems appropriate to be named in such action. If the needed repairs set forth in the January 15, 2010, stipulation, have not been done, then petitioner is directed to access respondent's apartment on September, 20, 2010, workers to arrive by 10am, to make said repairs. Completion of the work shall be within 21 days of the access date.
This is the decision and order of the Court. Copies are being mailed to both sides. The parties may pickup their exhibits in the courtroom.