Opinion
LT-073128/18
08-05-2019
CONFE REALTY CORP., Petitioner-Landlord, v. Kelvin JIMENEZ-NUNEZ, Respondent-Tenant, Genesis Ramos, Respondent-Occupant.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Petitioner/Landlord Confe Realty Corp. commenced this residential nonpayment summary proceeding against Respondent/Tenant-of-Record Kelvin Jimenez-Nunez for $4,748.06 comprising unpaid rent and additional rent for November 2017 ($1,365.52), December 2017 ($0.52), February 2018 ($97.22), August 2018 ($2.58), July 2018 ($1,382.58), and September 2018 ($1,382.58), and additional security, late fees, and legal fees ($17.06, $200.00, and $300.00, respectively), for Apartment 21, located at 3856 10th Avenue, New York, New York 10034 (the "Apartment"). On October 10, 2018, Respondent Genesis Ramos, an occupant in the apartment who has a child in common with Jimenez-Nunez, filed a pro se answer, asserting a general denial and breach of warranty of habitability defense.
Respondent Jimenez-Nunez has not filed an answer.
Respondent-Occupant Genesis Ramos was provided a Spanish interpreter.
On October 10, 2018, the matter was adjourned for Jimenez-Nunez to appear. On November 27, 2018, Jimenez-Nunez failed to appear and the matter was adjourned again for his appearance, and for Ramos to consult with Manhattan Legal Services. On January 7, 2019, Ramos was referred to Expanded Legal Services by Judge Schreiber, who noted that Ramos was "pregnant with two kids in apartment," that Ramos had an order of protection against Jimenez-Nunez, and that Catholic Charities was willing to assist Ramos, but needed a lease in Ramos's name. On February 21, 2019, though Ramos was unable to secure counsel, the matter was referred to the undersigned for trial.
See NYC Civil Court Directive DRP-150-A [Apr 1, 2018] [available at https://www.nycourts.gov/COURTS/nyc/SSI/directives/DRP/drp150A.pdf].
On March 29, 2019, the undersigned conducted a trial and issued a decision on April 8, 2019 in favor of Petitioner, including amendment of the caption to add Ramos, who the Court found undisputedly occupied the Premises. A warrant issued on April 11, 2019.
On April 12, 2019, with the aid of counsel, Manhattan Legal Services, Ramos filed an order to show cause to (1) stay execution of the warrant; (2) pursuant to CPLR 4404(b) to set aside this Court's decision to make new findings and/or order a new trial; (3) pursuant to CPLR 5015(a)(3) to vacate this Court's decision based on alleged perjured testimony and/or sworn documents by Petitioner's sole witness at trial; and/or (4) in the interest of justice, to stay execution of the warrant to allow Ramos time to appeal. Petitioner opposes. After filing this motion, counsel for Ramos informed the Court that Ramos's child, born prematurely, required surgery, and that Ramos corresponded with city agencies amenable to assisting Ramos with rent if she obtained a lease in her name.
Upon request and to ensure a complete record, the Court permitted subsequent, additional briefing.
DISCUSSION
CPLR 4404(b) provides that after a non-jury trial, "upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue." "The statute gives the trial court broad discretion to set aside its own judgments, and sets forth no standards for or limitations on the court's exercise of that discretion. The goal is to ensure that litigants receive a fair trial and that justice is done" ( Cabrini Blockfront LLC v. J.N. , 63 Misc 3d 1221[A], 2019 NY Slip Op 50646[U], *1 [Civ Ct NY County 2019] [Schneider, S.J.], citing Altimari v. Meisser , 23 AD2d 672 [2d Dept 1965] ).
"A new trial should be granted in the interests of justice only if there is evidence that substantial justice has not been done, as would occur, for example, where there is newly discovered evidence" ( Gomez v. Park Donuts, Inc. , 249 AD2d 266, 267 [2d Dept 1998] ; Mangra v. Mangra , 170 AD3d 1156, 1159 [2d Dept 2019] [to grant relief based on newly-discovered evidence, the movant must show that it could not have previously discovered the evidence] ). However, a CPLR 4404(b) motion is not limited to situations where new evidence is discovered (see e.g. Paterno v. Strimling , 107 AD3d 1233, 1234 [3d Dept 2013] ["Just as the failure to submit an issue to a jury can constitute an error of law, a court's decision after a nonjury trial that misapprehends the theory of liability and fails to address a key component thereof can provide a ground for the court to set aside its decision"] ).
For example, courts have vacated judgments after non-jury trials and hearings where pro se litigants had made diligent efforts to appear and represent themselves but were denied—through their own or court oversight—the right to a fair hearing impacting substantial rights ( Hamel v. Hamel , 117 Misc 2d 118, 120 [Fam Ct 1982] [granting new hearing to pro se litigant to present new evidence after litigant had retained counsel]; see also Silvestris v. Silvestris , 24 AD2d 247, 250 [1st Dept 1965] [remanding because trial court had not advised pro se litigant in support proceeding of his right to cross-examine and produce witnesses]; Cabrini Blockfront LLC , 63 Misc 3d 1221[A] [holding that movant "did not receive a fair trial[ ] because of his severe mental illness, combined with and exacerbated by his trial counsel's failure to bring his psychiatric condition to the attention of the court at any time during the eighteen months between the commencement of the proceeding and the end of the trial"]; see also Townsend v. Torres , 182 AD2d 1140 [4th Dept 1992] [reversing imposition of conditions upon vacatur, finding that pro se movant had made diligent efforts to appear in the action and that conditions "effectively serve[d] to deprive a defendant of his day in court"]; cf Boltz v. Ascolesi , 16 Misc 3d 133[A], 133A, 2007 NY Slip Op 51499[U], *2 [App Term 2d Dept 2007] [motion for new trial denied where, among other things, " occupant made no attempt to produce witnesses, or identify witnesses that he might produce if given still more time."] ).
Here, Ramos first challenges the validity of Huang's affidavit of military investigation originally submitted in support of a default judgment against Jimenez-Nunez and Huang's testimony at trial. In support of her contention, Ramos attaches the affidavit of Jimenez-Nunez to assert that Huang could not have spoken to him at the alleged time and date. However, as Plaintiff argues, the affidavit of military investigation was not relevant to the Court's substantive determinations at trial because it was submitted in support of a default judgment against Jimenez-Nunez (see O'Leary v. Atl. Amusement Co. , 127 Misc 311, 312 [Sup Ct Richmond County 1926] ["a new trial will only be granted where (1) the perjury is clearly established; and (2) where the perjury relates to a competent and material fact. "] [emphasis added] ). Accordingly, even if the Court conducted a hearing and established that Huang's affidavit of investigation was indeed false, it would not—by itself—justify a new trial. Accordingly, that branch of Ramos's motion is denied.
Ramos also argues that the Court should set aside its judgment pursuant to CPLR 4404(b) in the interests of justice because Ramos was unable to present a succession claim to the rent-stabilized Apartment founded upon the 2012 birth of Ramos's son, whose father is Jimenez-Nunez, (Pet'r OSC, Exh B ). According to Ramos, the Court should have recognized that Ramos had a potential succession defense and permitted her to present and prove that defense for either herself or her child with Jimenez-Nunez, thereby satisfying the only condition which HRA/FHEPS had placed on satisfying the Apartment's arrears: a lease in Ramos's name.
Ramos's Exhibit G purports to be a copy of a FHEPS notice confirming Ramos's eligibility. No such document exists in the Court's copy, but Petitioner does not deny Ramos's eligibility on that basis.
Where an occupant has established a colorable claim to succession rights, the occupant has standing to assert defenses to this nonpayment proceeding, at least to the extent of demonstrating that the statutory prerequisites to the proceeding have not been satisfied ( Rochdale Vil., Inc. v. Goode , 16 Misc 3d 49, 52 [App Term 2d and 11 Jud Dists 2007] ). Several courts have found that unnamed family members should be allowed to claim succession in nonpayment proceedings in order to obtain financial assistance and satisfy the purpose of nonpayment proceedings: making the landlord whole (see Acquisition Am. v. Diaz , 20 Misc 3d 1127(A) [Civ Ct NY County 2008] [holding, in response to occupant-son's order to show cause to stay eviction after a non-payment proceeding, that occupant-son not named in lease was entitled to a hearing on succession rights where evidence supported finding that son, who suffered from multiple sclerosis, had lived in subject apartment for many years and qualified for financial assistance]; accord Boston Properties LLC v. Taveras , 60 Misc 3d 398, 402 [Civ Ct Bronx County 2018] [permitting alleged occupant to intervene and assert succession claim to avoid eviction of occupant and her young child] ). Indeed, the Appellate Term has even vacated stipulations, which are "favored and will not lightly be cast aside," where unrepresented parties were unaware of a potential succession defense ( Sontag v. Garcia , 31 Misc 3d 1223(A) [Civ Ct NY County 2011] [collecting cases] ).
Here, 9 NYCRR § 2523.5(b)(1) provides, in relevant part, that
if [a renewal] offer is made to the tenant and such tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2520.6(o), who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years shall be entitled to be named as a tenant on the renewal lease.
9 NYCRR § 2520.6(o)(2) in turn, defines "family," in relevant part, as
Any person residing with the tenant or permanent tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant.
The regulation lists numerous, non-exhaustive factors including relationship longevity, sharing of household expenses, family-type activities. The factors reflect that, as one court has noted, there is no "hierarchy of succession rights; rather, traditional and non-traditional family relationships enjoy equal standing to succeed to a tenancy" ( 611 E. 179th St. Realty Corp. v. Gonzalez , 55 Misc 3d 1225(A) [Civ Ct Bronx County 2017] ).
In this case, Ramos's succession claim, as well as that of her son fathered by Jimenez-Nunez, is plausible because of the statements in the record regarding Ramos's longstanding relationship with Jimenez-Nunez, including a child in common born several years ago, and connection to the building—indeed, even Petitioner's counsel acknowledges that Ramos's mother also lives in the building. Though the record at trial was relatively sparse, and though it is unclear whether these issues were raised at the numerous prior conferences in Housing Court, Ramos—pregnant and due to give birth shortly after trial—was pro se at trial despite diligent efforts to secure counsel, and therefore did not have the opportunity or knowledge to present, let alone establish, a succession defense. Under these particular circumstances, Ramos's claims deserve to be explored now.
Petitioner does not challenge Ramos's factual allegations or status as a potential family member entitled to succession rights. Rather, Petitioner first argued in opposition that Ramos's succession claim was not yet ripe because Jimenez-Nunez had not surrendered the apartment. When Ramos responded with a sworn, translated affidavit from Jimenez-Nunez surrendering his rights to the apartment, admitting vacatur in November 2018, and acknowledging Ramos's presence in the Apartment since April 2013 with their son (Ramos Reply Exh A ), Petitioner responded by arguing that Jimenez-Nunez's surrender was unilateral, and therefore without legal consequence. However, Petitioner cites no authority for that proposition, or any other. Petitioner also ignores the plain text of the regulation requiring only that a tenant "permanently vacate the housing accommodation" which, when coupled with Ramos's order of protection against Jimenez-Nunez, likely prohibits Jimenez-Nunez from entering the Apartment. Indeed, the sworn statement of Petitioner's agent even acknowledges that Jimenez-Nunez "could not stay in the apartment" (Pet'r/Huang Second Surreply Aff ¶ 2).
Petitioner's opposition focuses repeatedly on the nature of this proceeding (a nonpayment proceeding where nonpayment is undisputed) and the 8-month delay in the matter's resolution. However, despite the opportunity to submit opposition and two supplemental responses, Petitioner has not submitted any authority germane to its position other than attempts to distinguish Diaz and Taveras , which both effectively permit the litigation of a succession defense in a nonpayment context (Pet'r/Chun Supp Reply Affirm in Opp ¶¶ 4-5). For example, Petitioner argues that Taveres is distinguishable because "the occupant in Taveres filed papers at the last minute because of no proper party and wanted to deal with succession. She did not have 8 months to look for an attorney She asked for legal counsel, and Manhattan Legal Services was nowhere to help her when she needed it most Ms. Ramos just did not care" (id. at ¶ 5).
Even setting aside the internal contradiction of Petitioner's argument—that Ms. Ramos "did not care," yet pursued counsel for months and continually appeared in court—the Taveres court ultimately permitted a succession defense in a nonpayment proceeding because, in relevant part, "[the movant] and her young child with the tenant of record will be at risk of eviction, either in this proceeding or a subsequent proceeding to remove her as a licensee" ( 60 Misc 3d 398, 404 ). This Court, facing similar circumstances, affords Ramos a similar opportunity in the interests of justice.
In doing so, the Court also notes New York's recent enactment of the Housing Stability and Tenant Protection Act of 2019 (the "Tenant Act"). Though the Court does not rely explicitly on any individual provision of the Tenant Act because its provisions did not take effect until after the trial in this matter concluded, the legislature explicitly found the existence of a "serious public emergency" capable of contributing to a "loss of vital and irreplaceable affordable housing for working persons and families" justified the Tenant Act in order to "prevent uncertainty, potential hardship and dislocation of tenants living in housing accommodations" (2019 NY Laws 36; 2019 NY SB 6458).
CONCLUSION/ORDER
For the above reasons, it is hereby
ORDERED that the motion of Respondent Genesis Ramos is GRANTED to the extent that the Clerk of Court shall vacate the judgment and warrant, and the matter shall be restored to the calendar and referred back to Housing Court for resolution and/or trial on the issue of Respondent's succession defense; and it is further
ORDERED that counsel for Ramos shall serve a copy of this decision with notice of entry upon all parties.
This constitutes the decision and order of the Court.
CPLR 2219(a) Recitation
Ramos OSC1
Pet'r Affirm/Aff in opp2
Ramos Affirm in Reply, Exhs3
Ramos Supp Affirm, Exhs4
Pet'r Reply Affirm/Aff in Opp5
Ramos Supp Affirm, Exhs6
Pet'r Second Reply Aff/Affirm7