Opinion
No. 61298/2012.
2012-05-31
Joel BASTIEN, Petitioner, v. Veta SPENCE, Respondent.
Jared Rich Brooklyn, NY, Petitioner's Counsel. Veta Spence Brooklyn, NY, Dep't of Social Services of NYC New York, NY, Respondent Pro Se.
Jared Rich Brooklyn, NY, Petitioner's Counsel. Veta Spence Brooklyn, NY, Dep't of Social Services of NYC New York, NY, Respondent Pro Se.
GARY F. MARTON, J.
The above-captioned is a holdover proceeding. The premises at issue is one apartment in a four unit dwelling. On the proceeding's first return date of March 22, 2012 the parties entered into a stipulation of settlement that was “so ordered” by the court. The stipulation provided, among other things, that a judgment of possession would be entered and that a warrant might issue but that execution thereof would be stayed through May 31, 2012 as long as respondent paid $900.00 on April 1, 2012, on April 15, 2012, and again on May 1, 2012. The stipulation also provided that petitioner would waive $3,700.00 in rent arrears if respondent vacated timely but that petitioner would keep the $800.00 security deposit.
Respondent quickly defaulted; she did not make any of the stipulated payments. Petitioner had a marshal serve a notice of eviction. Now, by an order to show cause sought on April 27, 2012 and first returnable on May 7, 2012 respondent moves to vacate the stipulation and the judgment. Also, by another order to show cause sought on May 3, 2012 and made returnable on May 7, 2012 the Department of Social Services of the City of New York (“DSS”) moves to have a guardian ad litem appointed for respondent, for a stay of execution of the warrant, and for related relief.
As set out below, both motions are denied, and the warrant may be executed upon the re-service of a marshal's notice, which may be made by mail.
Respondent's motion
Before being “so ordered,” the stipulation (and the case itself) was conferenced with a court attorney and then allocuted by the court
. In her moving papers, respondent asserts that the stipulation ought to be vacated because she did not understand it. However, she makes this allegation in conclusory terms. She does not state that she did not understand that she was agreeing to move out. She does not state that she did not understand that she had to make interim payments. Respondent does not pretend, much less show, that she had defenses to raise or that, had she not entered into the stipulation, she would have prevailed at trial or otherwise secured an outcome more favorable than that which she obtained in the stipulation. In addition, she does not propose to restore the status quo ante by paying the waived arrears.
The court notes that during the conference and the allocution respondent was accompanied by a JASA caseworker, Luz Maria Rivera, who stated that she was confident that by May 31, 2012 she could secure for respondent a smaller but affordable studio apartment elsewhere.
Ordinarily, courts uphold stipulations of settlement, especially those made in open court, because doing so promotes justice and the administration of justice. However, a court may vacate a stipulation where there is a showing of fraud or illegality or fundamental error sufficient to void a contract, Hallock v. State of New York, 64 N.Y.2d 224, 230 (1984), or where the stipulation takes the proceeding out of its due and ordinary course, In re Frutiger, 29 N.Y.2d 143, 150 (1971). Here, there is no showing of fraud or illegality or fundamental error. This is not a case like Cabbad v. Melendez, 81 A.D.2d 626 (2nd Dep't, 1981), where the court vacated a stipulation of settlement because, although the tenant believed that the stipulation provided that upon her payment of all rent arrears she would retain possession of the premises, the stipulation in fact provided that the tenant's surrender of possession would stand. Neither did the stipulation here take the instant proceeding out of its due and ordinary course; instead, it is common for “no defense” holdovers such as the instant one to be settled by agreements in which landlords waive two or three months' rent and tenants, in return, agree to vacate in two or three months.
Had this case been tried, respondent would not have had a defense and while she might have asked the court, even as late as the granting of a judgment of possession for petitioner, for time to find another place to live, RPAPL § 753 would have required the court to condition any extension of time upon the payment of both the rent arrears and rent going forward, neither of which are within respondent's means. Respondent's motion to vacate the stipulation is denied.
DSS' Motion
DSS moves for the appointment of a guardian ad litem and for an open-ended stay of execution of the warrant, i.e., until respondent had been relocated and the possibility of an eviction has become moot.
At paragraph 9 of the affirmation of Ryan–Solon dated May 2, 2012 DSS states: “Upon information and belief, Adult Protective Services' (APS) plan for VETA SPENCE includes a possible Article 81 Guardianship, relocation and assistance applying for section 8 benefits.” However, DSS does not offer to pay anything to petitioner. In other words, DSS' plan is for respondent to remain rent-free at the premises for an indefinite period of time and for petitioner to remain uncompensated therefor. Petitioner will continue to suffer the loss of a significant portion of the gross revenues of the property and will be pushed closer, perhaps irreversibly so, to foreclosure or bankruptcy. How this is a result that is in the best interest of the public is an issue that DSS' moving papers do not address.
DSS' moving papers include what is described as a doctor's report but the document annexed is only a copy and does not otherwise meet the requirements of CPLR 2106. The report states that respondent is 59 years old, has lived at the premises for 9 years, suffers from a number of disabilities, cannot afford the premises because her income is $730.00 per month but the rent is $900.00 per month
, and has been on a New York City Housing Authority waiting list for 3 years. The report describes the disabilities as asthma, high cholesterol, chronic pain, difficulty walking, and, due to a stroke in 2008, impaired memory and word finding ability. The report also states that respondent needs help with bathing, dressing, and other activities of daily living, but that respondent's apartment is clean and neat, that respondent herself is adequately nourished and dressed appropriately, and that she has no psychotic symptoms and is not suicidal. DSS asserts that a guardian ad litem ought to be appointed and respondent's eviction enjoined because respondent ought to be relocated but is not a suitable candidate for a homeless shelter.
The report includes a statement from which it may be inferred that petitioner thinks that he can now get $1,200.00 per month for the apartment.
The standard for appointing a guardian ad litem is fixed by CPLR § 1201. In pertinent part it provides that a person shall appear by a guardian ad litem if the person “is an adult incapable of adequately prosecuting or defending his rights.” Here, DSS makes no showing that respondent has any pertinent rights to prosecute or to defend in this proceeding, and the court discerns none. There is no contention that respondent has a lease for the premises or that she is entitled to one. It is uncontested that respondent has not paid any rent since September, 2011 and that she cannot pay anything now. The doctor's report states that respondent has a son who lives in New York City and a number of relatives who live in Jamaica, but there is no contention that they can or will help with the rent or otherwise.
The Housing Court was established some forty years ago and “its stated mission was to improve the housing stock.” Scherer, Residential Landlord–Tenant Law in New York § 7:47 (2011). Section 110(a) of the New York City Civil Court Act provides that this court is to establish and enforce “housing standards, including but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York * * * * ” Buildings suffer wear and tear, and making the repairs needed to keep them up to code costs money. Too, ongoing expenses such as the City of New York's real estate taxes and water and sewer charges must be paid, as must, typically, mortgages and the cost of hot water and heat in winter. If petitioner is to be unable to collect for an indefinite period of time not simply some of the building's profits
but a significant portion of the rent roll, his ability to comply with governmental regulations will be compromised. This too is an issue that DSS' moving papers do not address.
The motion papers before the court do not show whether the building turns a profit.
Respondent's plight is heart-wrenching. She lives in an apartment that she can no longer afford, is afflicted with infirmities, and is unable to secure help from family or friends. Nonetheless, to stay execution of the warrant and appoint a guardian ad litem here, the court would have to shut its eyes to petitioner's rights and find that respondent has rights at stake in this proceeding that ought to be prosecuted or defended. This finding the court cannot make. Accordingly, the motion for the appointment of a guardian ad litem and related relief is denied.
The court will mail copies of this decision and order to the parties.