Opinion
51905/16
05-11-2016
285 Schenectady LLC, Petitioner, v. Shyrwinka Williams, Respondent.
Petitioner's counsel: Stern & Stern 50 Court Street - suite 1100 Brooklyn, NY 11201 (718) 935-9458 Respondent's counsel: Brooklyn Legal Services, Inc. 105 Court Street - 4th floor Brooklyn, NY 11201 (718) 237-5549
Petitioner's counsel: Stern & Stern 50 Court Street - suite 1100 Brooklyn, NY 11201 (718) 935-9458 Respondent's counsel: Brooklyn Legal Services, Inc. 105 Court Street - 4th floor Brooklyn, NY 11201 (718) 237-5549 Gary F. Marton, J.
Recitation of the papers considered in the review of the motion: Papers Numbered Respondent's motion with affidavit 1 Petitioner's affirmation in opposition 2 Respondent's supplemental affirmation in support 3 Petitioner's supplemental affirmation in opposition 4 The court file 5
Respondent moves to vacate the default judgment in this nonpayment proceeding and to be restored to possession. After considering the testimony and the other evidence at the hearing herein, the court makes the following findings of fact, reaches the following conclusions of law, and denies the motion. All stays are vacated.
Background
Respondent became the tenant of the premises, a rent-stabilized apartment, in May or June, 2012. For the past two years she has always been more than one month's rent in arrears. In December, 2015 she tendered a check for $2,600.00 in partial payment of arrears that exceeded $6,000.00. On or about December 16, 2015 the check bounced.
Petitioner served a predicate rent demand dated December 17, 2015. It alleged that there were arrears of $6,114.00, consisting of a balance of $706.00 from August, 2015 and the monthly rent of $1,352.00 for the months of September, 2015 through December, 2015. On January 18, 2016 petitioner served a petition and notice of petition dated January 12, 2016. The petition alleged that there were rent arrears of $7,466.00, consisting of the sums sought in the rent demand plus the rent for January, 2016.
Respondent did not answer the petition. Thereafter petitioner submitted the requisite affidavit of merit sworn to on February 9, 2016, see, Sella Props v DeLeon, 25 Misc 3d 85 (App Term, 2nd Dep't , 2009). The affidavit recited that after payments through that date the rent arrears were $4,868.00. A default judgment was entered on March 21, 2016, a warrant issued on March 29, 2016, and it was executed and respondent was evicted on April 19, 2016.
By a pro se order to show cause sought later that day and returnable on April 20, 2016 respondent moved for relief. In her supporting affidavit sworn to on April 19, 2016 respondent averred, among other things, "I just paid (yesterday) $1350. The landlord did not tell me anything." and "I never received a notice for the eviction."
At the motion's argument on April 20, 2016 petitioner served an opposing affirmation dated April 20, 2016. By this time respondent had retained counsel and at argument served both an affirmation by counsel dated April 20, 2016 and a supplemental affidavit sworn to by respondent on April 19, 2016.
In these supplemental papers respondent alleged that all rent through February 2016 had been timely paid. She argued as well that she had been justified in ignoring the instant proceeding because after receiving the petition she had contacted an employee of petitioner's, Michael Shultz, that he had assured her that petitioner would drop the proceeding, and that she had reasonably relied on this assurance. In response to these supplemental allegations, petitioner served a second opposing affirmation of counsel dated April 12, 2016 [sic] and an affirmation of Michael Shultz dated April 20, 2016. In these petitioner denied both that all rent through February, 2016 had been paid and that Shultz had told respondent that petitioner would drop the proceeding.
By a decision and order dated April 25, 2016 the court held that a hearing was necessary inasmuch as there were questions of fact as to whether respondent had an excusable default and a meritorious defense, i.e., whether the rent had been paid and whether the alleged misrepresentation upon which respondent claims to have reasonably relied had been made. The court conducted the hearing on May 2, 2016, taking testimony from Shyrwinka Williams and Michael Shultz.
Discussion
To vacate a default judgment, courts typically require the movant to make a prima facie showing of a meritorious defense and to offer a reasonable excuse for the default. Tat-Sang Kwong v Budge-Wood Laundry Service, Inc., 97 AD2d 691 (1st Dep't, 1983). Thus, the threshold issue here is whether respondent has made that showing. If she has, restoration to possession is automatic; if she has not, restoration to possession remains within the court's discretion.
As one meritorious defense respondent avers that the rent due had been paid. At paragraph 6 of the supplemental affidavit of Williams sworn to on April 19, 2016, in reference to a period of time beginning at least half a year before the instant proceeding was brought, respondent avers: "Even though I refused to sign this renewal lease I continued to pay my old rent amount of $1,352 each month between June 2015 and February 2016 and my landlord continued to accept this amount from me each month." The court finds that this statement falls short of the truth. Respondent did not pay any rent in the months of August, 2015 and September, 2015, and, as noted above, she tendered a check in December, 2015 that was dishonored for insufficient funds.
The court makes this finding on the basis of a document that respondent offered in evidence, to wit, respondent's exhibit B, which is petitioner's rent history for the premises for the period April 30, 2014 through April 1, 2016 . The court notes as well that at the hearing herein respondent did not offer any bank records or copies of checks or other documents probative of the alleged payments. Respondent's claimed defense of payment through February, 2016 fails.
This exhibit does not show the $1,350.00 check that respondent tendered on April 18, 2016 and that petitioner, without contradiction by respondent, asserts it mailed back to her on the following day. The court notes that had petitioner accepted this payment, substantial rent arrears would have remained. --------
As another basis for vacating the default judgment, respondent asserts that petitioner lulled her into a false sense of security by telling her that it would drop the instant nonpayment proceeding. More specifically, in her supplemental affidavit sworn to on April 19, 2016 respondent avers at paragraphs 8 and 9: "I had my baby on January 10, and when I returned home, I found court papers under my door saying that my landlord was suing me for non-payment of rent. The next day, I went to Michael Schulz [sic] in the management office to ask him about the court papers." At the hearing herein, respondent testified that she returned home on January 12, 2016. If so, it would follow that she went to Michael Shultz on January 13, 2016.
However, at the hearing respondent also testified that while she returned to the premises on January 12, 2016, she went straight away to stay with her mother for a week, that she returned to the premises on January 20, 2016, and that it was only then that she found the court papers. This discrepancy between her two recitations of the events' chronology gives the court some pause especially in view of respondent's less than accurate recounting of her rental history.
Respondent testified that she went immediately to petitioner to discuss the rent arrears, at which time he lured her into a false sense of security by telling her, after she had rejected a buyout proposal, that petitioner would cancel the nonpayment proceeding. Specifically, at paragraph 11 of the supplemental affidavit sworn to on April 19, 2016 respondent states: "Michael Schulz [sic] told me that, in that case, I should not worry about the court papers and that he would tell his lawyers to cancel them. I then paid rent for December, January, and February, for a total of approximately $3,950."
The court finds, however, that it was not immediately after January 20, 2016 that respondent went to petitioner but that it was more than two weeks later. The court finds that on February 1, 2016 respondent e-mailed Michael Shultz asking "Can you please give a call regarding the rent please" and that it was not until February 8, 2016 that respondent went to petitioner's office to discuss the rent arrears. The court finds that at that time respondent paid not $3,950.00 but $2,000.00 (or perhaps $2,002.00). These discrepancies too give the court some pause.
Shultz testified that respondent went to petitioner's office on February 8, 2016, that her visit was unscheduled, and that they had a conversation that lasted 20 or 30 minutes. He testified that he told her, inasmuch as she was unable to pay the rent, that petitioner would waive the rent arrears and future rent if she would agree to move out in three months. He testified that she declined this offer. He testified that he did not tell her that he would drop the lawsuit and that there was no discussion of the lawsuit. He testified that he did not hear back from her after she left. The court finds that Shultz' testimony was more credible than respondent's.
The court holds that respondent has not demonstrated either an excusable default or a meritorious defense, and the court denies the motion to the extent that it seeks to vacate the judgment.
Respondent's application to be restored to possession is separate and distinct from her application to vacate the judgment. In support, she asserts that although she cannot pay now all of the rent arrears, if restoration to possession were granted conditionally upon the payment of all sums due, she could, with governmental assistance, obtain the requisite sums within a brief period of time.
RPAPL § 749(3) provides that the issuance of a warrant "cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant * * * *" See also, New York City Housing Authority v Torres, 61 AD2d 681 (1st Dep't, 1978). Nonetheless, it has long been clear that even after execution of the warrant, for "good cause," Parkchester Apartments Co. v Scott, 271 AD2d 273, 273-74 (1st Dep't, 2000), or where there are "appropriate circumstances," Matter of Brusco v Braun, 84 NY2d 674, 682 (1994), a court may vacate the warrant and reinstate a tenancy. However, it has also long been clear that by itself a tender of sums due does not constitute "appropriate circumstances" or "good cause" to restore to possession, see, e.g., Davern Realty Corp. v Vaughn, 161 Misc 2d 550 (App Term, 2nd Dep't, 1994), 32-05 Newtown Avenue Assoc. v Hailazopoulos, 168 Misc 2d 125 (App Term, 2nd Dep't, 1996), The Sherwood Complex, LLC v Dunn, 24 Misc 3d 136 (A) (App Term, 2nd, 11th & 13th Jud Dists, 2009).
In Parkchester, supra, the court held that there was good cause to restore to possession a tenant who had tendered all rent arrears and who "while a tenant for 20 years, had apparently had no prior delinquency record and, prospectively, had arranged for automatic withdrawal of monthly rent from his bank account." (At 274). In Equity LLC v Ottley, 14 Misc 3d 126(A) (App Term, 2nd & 11th Jud Dists, 2006) the court, notwithstanding the tenant's default on a stipulation, upheld a restoration to possession where the factors present were "the 20-year duration of the tenancy, landlord's failure to make the stipulated repairs, tenants' significant' payments under the stipulation and their ability to immediately pay the remaining sum due under the judgment...." In BJB Realty Corp. v Holloway, 10 Misc 3d 133(A) (App Term, 2nd & 11th Jud Dists, 2005) the court upheld a restoration to possession where the tenancy's duration was 30 years and the failure to pay in full was attributable at least in part to errors by the City of New York's Human Resources Administration. In Lafayette Boynton Housing Corp. v Pickett, 135 AD3d 518 (1st Dep't, 2016) the court upheld restoration to possession where the tenant was disabled, the duration of the tenancy was 30 years, and payment of all rent arrears and legal and marshal's fees had been secured.
Here, by contrast, respondent's tenancy was of the much shorter duration of not quite four years. For at least half of this time she was in substantial rent arrears, which arrearage cannot be said to be due to governmental error or delay as it was in, e.g., Holloway, supra. Respondent does not pretend that the arrearage was the result of a one-time, non-recurring event, and she does not show, as the tenant did in Parkchester, supra, that the rent going forward will be paid. See also, Winthrop Realty, LLC v Menal, 21 Misc 3d 141(A) (App Term, 2nd & 11th Jud Dists, 2008), where the court upheld restoration to possession where the failure to pay was due in part to governmental error and receipt of future rent was assured. In short, the court does not find that there is the requisite good cause or the appropriate circumstances to vacate the warrant herein, to reinstate the landlord-tenant relationship, and to restore respondent to possession.
Accordingly, the court denies respondent's motion as set out above. The court will notify the parties by telephone that copies of this decision and order are available for pick up in the courtroom. Dated: Brooklyn, NY May 11, 2016 Hon. Gary F. Marton