Opinion
Index No. LT-310919-22/QU
09-07-2023
First Housing Company Inc, Petitioner(s), v. Hugo Diaz Jr; "John" "Doe"; "Jane" "Doe", Respondent(s).
Unpublished Opinion
Enedina Pilar Sanchez, J.
This is a non-payment proceeding. Respondent filed for ERAP assistance and upon notification, the Court placed the matter on the Administrative Calendar.
Petitioner filed a motion to vacate the ERAP stay. On or about February 8, 2023, petitioner's motion was on the court's calendar. Respondent appeared pro-se. Petitioner's counsel drafted a Stipulation providing that its motion to lift the ERAP stay was granted on consent. The pro-se Respondent signed the Stipulation. The Stipulation was not "So Ordered" by the court. In NYSCEF the Stipulation is noted as "Other," See NYSCEF Doc. No.15.
An examination of the Stipulation of February 8, 2023 further shows that it has no reference to any of the judges presiding in Part A and bears no initials that it was reviewed by a Court Attorney.
On August 31, 2023 this matter appeared before the Court. Petitioner requested that the case be transferred to Part X to be assigned to a Trial Part. Respondent now appearing by counsel, the Legal Aid Society argued that the matter should be placed on the Administrative Calendar as Respondent has a provisional ERAP approval . See , First Housing Co., Inc. v. Tchiremu, 2023 NY Slip Op 50263(U), 78 Misc.3d 1219(A) [Civ Ct, Queens County 2023].
Where initially it appeared that there was a binding Stipulation, the Court must find otherwise. There is no binding agreement to vacate the ERAP stay as written in the Stipulation of February 8, 2023. The Stipulation further states that the matter was adjourned for respondent to "get an attorney."
It was improper to have a dispositive outcome of Petitioner's motion in a Stipulation with a pro-se litigant without court review and approval.
The Court is required to vacate the Stipulation of February 8, 2023. The Stipulation was not "So Ordered" by the Court as it is required to be done when a pro-se litigant appears.
Pursuant to RPAPL §746 the "Legislature requires the Court to engage in extra allocution with pro se tenants who stipulate...." 276-W71 LLC v. G.S., 2023 NY Slip Op 23171 [Civ Ct. New York County June 2, 2023].
RPAPL § 746 provides:
1. In any proceeding under this article, if a stipulation is made, on the occasion of a court appearance in the proceeding, setting forth an agreement between the parties, other than a stipulation solely to adjourn or stay the proceeding, and either the petitioner or the respondent is not represented by counsel, the court shall fully describe the terms of the stipulation to that party on the record.
2. No stipulation required to be on the record by subdivision one of this section may be approved by the court unless the court first conducts an allocution on the record that shall, at a minimum, find the following:
(a) the identity of the parties and whether all necessary parties have been named in the proceeding;
(b) the authority of the signatory to the stipulation if the named party is not present; and
(c) shall further find:
(i) that the unrepresented party understands that he or she may try the case if he or she does not agree with the proposed stipulation or if an acceptable stipulation cannot be negotiated;
(ii) where the other party is represented, whether the party's attorney inappropriately gave legal advice to the unrepresented litigant or whether the unrepresented litigant is agreeing to the proposed stipulation as a result of undue duress;
(iii) whether the unrepresented respondent agrees with or contests any allegation in the petition and predicate notices;
(iv) that the unrepresented party is aware of and understands claims or defenses he or she may have in the proceeding and is aware of the available options in light of those claims or defenses, especially where the stipulation provides for a surrender of the dwelling unit or the conversion of a nonpayment proceeding into a holdover proceeding;
(v) that the unrepresented litigant's claims or defenses are adequately addressed in the stipulation;
(vi) that the unrepresented party understands and agrees to the terms of the stipulation;
(vii) that the unrepresented party understands the effect of non-compliance with the terms of the stipulation by either side and what the deadlines and procedures are for addressing such non-compliance, including how to restore the case to the court calendar to obtain relief under or from the stipulation;
(viii) in all non-payment cases, including where the unrepresented party indicates that he or she intends to apply for public assistance benefits or to a charity to pay rent that is sought in the proceeding and that the court has determined to be owing to the petitioner, that an appropriate rent breakdown is included in the stipulation; and
(ix) that the unrepresented party understands the implications of a judgment against him or her and the legal requirement that the petitioner provide a satisfaction of judgment upon payment
It is undisputed that the Stipulation of February 8, 2023 was not "So Ordered" it did not, and it does not resolve Petitioner's motion to vacate the stay created by the ERAP. The stay continues in full force and effect.
Petitioner's motion is still pending, and the case is placed on the Administrative Calendar. The August 31, 2023, two-attorney briefing schedule is modified to reflect that a motion to move the case to the Administrative Calendar is moot. Respondent may oppose petitioner's motion and/or move for other relief as permitted by law.
Accordingly, it is
ORDERED that the Stipulation of February 8, 2023 is vacated; and it it
ORDERED that the case is placed back on the Administrative Calendar; and it is
ORDERED that petitioner's motion to vacate the ERAP stay is adjourned to November 13, 2023 at 9:30 am in Part A for resolution.
This Decision/Order will be filed to NYSCEF.
This constitutes the Decision/Order of the Court.
SO ORDERED.