Opinion
No. 18356/2016.
01-12-2017
GORA REALTY LLC, Plaintiff/Petitioner, v. Antoinette CROKER, Defendant(s)/Respondent(s), and Michelle Lee Moreno, Third–Party Respondent.
Howard C. Fritz, Esq., Buglione, Fritz & Associates, Bronx, Attorney for Petitioner. Eugene Chen, Esq., Bronx Legal Services, Bronx, Attorney for Respondent. Cris L. Gottlieb, Esq., Bronx, Attorney for Third–Party Respondent.
Howard C. Fritz, Esq., Buglione, Fritz & Associates, Bronx, Attorney for Petitioner.
Eugene Chen, Esq., Bronx Legal Services, Bronx, Attorney for Respondent.
Cris L. Gottlieb, Esq., Bronx, Attorney for Third–Party Respondent.
DIANE E. LUTWAK, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of the unnamed Respondent Ibrahima Diop's Order to Show Cause Seeking Leave to Renew Prior Motion to Vacate Judgment and Restore to Possession:
Papers Numbered
| Order to Show Cause to Restore to Possession With Attorney Affirmations of Eugene Chen and Jack Newton, | |
| Affidavit of Respondent & Exhibits A–F in Support | 1 |
| Affirmation in Opposition of Petitioner's Attorney with Memorandum of Law | 2 |
| Affirmation in Opposition of Third–Party Respondent's Attorney | 3 |
| Affirmation in Reply | 4 |
This is a nonpayment eviction proceeding brought by Petitioner Gora Realty LLC against Respondent Antoinette Croker, the tenant of record at 985 Anderson Avenue, Apt. 3A, Bronx, New York 10452. For the reasons set forth below, the court grants Mr. Diop's motion for renewal and, upon renewal, vacates the warrant of eviction against Mr. Diop, awards a judgment of possession to Mr. Diop and issues a warrant of eviction against the Third–Party Respondent, conditioned upon the tender of the sum of $8191.28 to Petitioner forthwith.
BACKGROUND AND PROCEDURAL HISTORY
The full procedural history is set forth in the Court's Decision and Order of December 27, 2016 which, after a hearing held on December 21 and 22, denied a post-eviction Order to Show Cause seeking restoration to possession of unnamed Respondent Ibrahima Diop, husband of Respondent Antoinette Croker. In sum, the court denied that motion because, despite the fact that Mr. Diop established his 22–year residency at the premise, and that expert testimony was presented to the effect that Mr. Diop had been wrongly denied rent assistance by the New York City Human Resources Administration (HRA) and his newly-retained attorneys were advocating vigorously with HRA to reverse that determination, he did not have the funds in hand ready to turn over to Petitioner and further did not provide any explanation or justification for his various defaults in this proceeding that had occurred prior to his eviction. Accordingly, the court found that Mr. Diop had not met the standards of "good cause", Parkchester Apartments Co. v. St Clair Scott (271 A.D.2d 273, 707 N.Y.S.2d 55 [1st Dep't 2000] ), and "appropriate circumstances", Matter of Lafayette Boynton Hsg Corp. v. Pickett (135 AD3d 518, 23 N.Y.S.2d 204 [1st Dep't 2016] ), quoting Brusco v. Braun (84 N.Y.2d 674, 682, 621 N.Y.S.2d 291 [1994] ), for the court to order vacatur of the warrant of eviction and restoration of Mr. Diop to possession of the subject premises.
Mr. Diop now moves by Order to Show Cause under Rule 2221(e) of the CPLR to renew his prior motion and, upon renewal, to be restored to possession of the premises for good cause shown and upon payment to Petitioner of all rent arrears as well as fees paid by Petitioner to his attorney and the City Marshal. In support of this motion, Mr. Diop's attorney asserts that Mr. Diop now has the sum of $8191.28 ready to turn over to Petitioner, comprised of HRA checks dated December 24, 2016 in the amount of $6491.28, money orders dated December 21, 2016 for $1100 and an additional $600 in charitable agency funds.
Further, Mr. Diop presents new facts in his affidavit sworn to on December 30, 2016: he is 58 years old and immigrated to the United States in 1987 from Senegal where his first language was Wolof; he has very limited English language skills for reading and writing; he did not receive the Notice of Petition and Petition and only first learned of this proceeding upon receiving a City Marshal's eviction notice in July 2016; he came to court to take out his first Order to Show Cause immediately after receiving the Marshal's notice; he did not mention his limited English proficiency to any judge or other court personnel or even to his attorney until very recently because he was ashamed of this and embarrassed to ask people to repeat or explain things to him; while unrepresented by counsel he relied on strangers at the courthouse to help him complete the court's Order to Show Cause forms; he did not know about HRA's rent assistance programs until the court referred him after he was evicted, and applied immediately upon receiving the referral; he diligently followed up with HRA thereafter by providing the requested documents—including a letter from Petitioner to explain that there was no lease for the apartment because it is Rent Controlled —attending a fingerprinting appointment on November 23, 2016 and, eventually, securing the written approval on December 12, 2016 which was the basis for his most recent (second) post-eviction Order to Show Cause; he met his lawyer, Eugene Chen, for the first time on the afternoon of December 20, 2016, received a call from Mr. Chen later that evening telling him that he would represent him at the hearing the next day and then met with Mr. Chen the next morning for about thirty minutes to prepare for the hearing that morning; he suffers from chronic health problems with symptoms that include severe vomiting, nose bleeds, headaches, shortness of breath and chest pains which interfered with his ability to attend all scheduled court dates.
Mr. Diop points out in his Affidavit at ¶ 26 that a copy of this letter, dated November 17, 2016, is in the court file.
Also in support of the motion to renew, Mr. Diop's attorney Mr. Chen in his affirmation confirms the time constraints he worked under in preparing to represent Mr. Diop at the hearing on December 21. Further, both Mr. Chen and his colleague Jack Newton provide additional details in their affirmations about Mr. Diop's application to HRA for rent arrears assistance, including confirmation that November 10, 2016 was the date of that application, that HRA erroneously revoked its initial written approval on December 12 for payment of $6491.28 due to Mr. Diop's inability to provide proof of his legal permanent residency in the form of a "green card", and that, "after continuous and persistent advocacy by Bronx Legal Services", Affirmation in Reply at ¶ 10, HRA checks adding up to $6491.28 dated December 24, 2016 (copies attached as Exhibit C to the Order to Show Cause) were delivered to the courthouse on December 28, 2016.
Petitioner opposes the motion to renew, argues that Mr. Diop has failed to demonstrate the requisite "good cause" to support vacatur of the warrant of eviction and that the court should adhere to its prior determination. Petitioner asserts that $8191.28 is the amount now needed to make Petitioner whole, which amount includes all legal fees to date.
The Third–Party Respondent—who did not attend the hearing or any other court appearance and never even submitted an affidavit to present any facts about her circumstances to the court—also opposes the motion to renew through her attorney's affirmation and asks the court to adhere to its prior determination.
DISCUSSION
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR § 2221(e)(2)-(3). Under this provision, courts may revise their decisions and orders upon being presented with facts that were not previously shown. "Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion courts have discretion to relax this requirement and to grant such a motion in the interest of justice." Mejia v. Nanni (307 A.D.2d 870, 763 N.Y.S.2d 611 [1st Dep't 2003] ). See also, e.g., Solomon Holding Corp. v. Stephenson (118 AD3d 613, 989 N.Y.S.2d [1st Dep't 2014] ).
Courts even have gone so far as to find that even where the failure previously to submit an affidavit with critical facts is "inexplicable", Trinidad v. Lantigua (2 AD3d 163, 767 N.Y.S.2d 618 [1st Dep't 2003] ), it is proper for a court to consider the new facts on a motion to renew. For example, in Smith v. City of New York (2014 N.Y. Misc. LEXIS 5763, 2014 N.Y. Slip Op 33401[U][Sup Ct Bx Co 2014] ), a personal injury action brought against the City after the plaintiff tripped over an allegedly hazardous pipe-like fixture in a crosswalk, the court granted a motion to renew a prior motion seeking leave to interpose a late notice of claim. The prior motion had been denied due to the plaintiff's failure to proffer a reasonable excuse for his failure to file his notice of claim within the requisite 90–day time period. On the motion to renew, the plaintiff submitted an affidavit establishing that the City had actual notice of the facts underlying his claim within 90 days following the accident and that the plaintiff's failure to timely file his notice of claim was due to medical incapacity. The City argued that the plaintiff could have submitted his affidavit in the prior motion. In granting the motion to renew, the court explained, "here, where the affidavit warrants reversal of a portion of this Court's prior order, even if the information sought was known and available to the plaintiff on the prior motion, the interests of justice and substantial fairness nevertheless require that renewal be granted. Similarly, while generally on renewal, there ought to be a reasonable excuse for the failure to provide dispositive evidence on a prior motion, here, even if as argued by [the City], plaintiff's reason for failing to proffer his affidavit on the prior motion is unreasonable, the same is no bar to renewal where, as here, the interests of justice so warrant." 2014 N.Y. Slip Op 33401 at 9.
In the present case, Mr. Diop has offered new facts not offered on the prior motion that would have changed the court's prior determination. Extremely relevant to the determination of whether the court should find there to be "good cause" to vacate the warrant of eviction and restore Mr. Diop to possession of the premises are the new facts proffered about Mr. Diop's limited English language skills and health problems which interfered with his ability to properly complete court-supplied Order to Show Cause forms and attend all scheduled court appearances. In addition, Mr. Diop now asserts that he did not receive the Notice of Petition and Petition and only learned about the pendency of this proceeding after receiving the City Marshal's 6–Day Notice of Eviction, after which he promptly came to court to take out his first Order to Show Cause. This is an important and credible explanation for why Mr. Diop defaulted in answering the Petition. Also critical to the court's determination are the additional details which have now been provided about the timing and processing of Mr. Diop's post-eviction application to HRA for rent arrears assistance, including delays and errors by HRA. Finally, another new key fact is that all funds demanded by Petitioner and needed to make Petitioner whole were available as of December 24, 2016.
The explanation provided by Mr. Diop's attorney Mr. Chen regarding his having met Mr. Diop and accepted his case for representation just one day before the hearing was scheduled to commence, and the very tight time frame which that provided Mr. Chen to learn the details of Mr. Diop's circumstances, review relevant documents and otherwise investigate the case and prepare for the hearing, along with Mr. Diop's aforementioned explanation of his reticence to reveal his limited English language proficiency, provides a reasonable justification for the failure to present at the hearing the plethora of relevant facts which is now before the court.
Although not argued by counsel for Petitioner or the Third–Party Respondent, even if they had contended that Mr. Diop did not provide a reasonable justification for not submitting the facts he now presents in his affidavit, the court would exercise its discretion to grant Mr. Diop's motion to renew in the interest of justice, Mejia v. Nanni, supra, particularly in light of the well-settled principle of equity that courts do not look favorably upon the forfeiture of leases, Sharp v. Norwood (223 A.D.2d 6, 11, 643 N.Y.S.2d 39 [1996], affd, 89 N.Y.2d 1068, 659 N.Y.S.2d 834 [1997] ).
Accordingly, the court grants Mr. Diop's motion to renew his prior motion. And upon that renewal, an examination of the facts previously presented along with the new facts now presented—including that 58–year–old Mr. Diop does not read and write English well; that he often will not ask people to repeat or explain things to him because he is ashamed of his limited English proficiency and embarrassed to ask for help; that prior to securing counsel in the post-eviction phase of this proceeding he had filled out Order to Show Cause forms with the assistance of strangers in the courthouse; that he missed the court appearance right before his eviction because he was very ill with symptoms including vomiting, nose bleeds and chest pain; that he was actually present on a prior court date that was marked as a default; that he did not know he might be eligible for assistance from HRA until the court referred him after he was evicted; that he applied for help from HRA on November 10, 2016 and thereafter followed up diligently, attended all required appointments and provided all documents requested except for the "green card" that turns out to have been demanded in error; that Petitioner provided HRA with a letter explaining that there was no lease for his apartment because it is Rent Controlled (not Rent Stabilized); and that the funds are now available to make Petitioner whole—the court finds that Mr. Diop, who has resided at the premises for over 20 years, has established the requisite good cause to be restored to possession.
Further supporting this determination is the supplemental information provided by Mr. Diop's expert witness Jack Newton, whose Affirmation of December 28, 2016 details the errors made and delay caused by HRA in the processing of Mr. Diop's application for assistance. But for those errors, it is apparent that the $6491.28 which HRA eventually did cut checks for on December 24, 2016, would have been issued weeks earlier.
Section 749(3) of the New York State Real Property Actions and Proceedings Law (RPAPL) authorizes the vacatur of warrants of eviction "for good cause shown" prior to execution of the warrant, and decisional law has extended this relief to cases, like the one now before this court, that present in a post-eviction posture. See, e.g., 102–116 Eighth Ave Assocs, LP v. Oyola (299 A.D.2d 296, 749 N.Y.S.2d 724 [1st Dep't 2002] ); 1240 Sheva Realty Assoc, LLC v. Ramos (51 Misc.3d 143[A], 38 NYS3d 831 [App Term 1st Dep't 2016] ); 2203 Belmont Realty Corp. v. Gant (51 Misc.3d 140[A], 36 NYS3d 410 [App Term 1st Dep't 2016] ); Nagle 112, LLC v. Miqui (46 Misc.3d 149[A], 13 NYS3d 851 [App Term 1st Dep't 2015] ); Pomeroy Co. v. Thompson (5 Misc.3d 517, 784 N.Y.S.2d 278 [App Term 1st Dep't 2004] ); 2720 LLC v. White (28 Misc.3d 1234 [A], 954 N.Y.S.2d 554 [Civ Ct Bx Co 2010] and cases cited therein ). As the Appellate Term, First Department has held:
Each application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities between the parties.
Parkchester Apartments Co. v. Heim (158 Misc.2d 982, 983–984 [App Term 1st Dep't 1993] ). See also, e.g., Oyola, supra (affirming vacatur of a warrant and restoration of a tenant to possession "under the facts and circumstances of record").
Accordingly, on the facts and circumstances of this case, the court finds that Mr. Diop has established the requisite good cause to grant his post-eviction motion to vacate the warrant of eviction and be restored to possession. It is now apparent that Mr. Diop is a "long-term, disabled tenant" who " ‘did not sit idly by[,]’ but instead made appreciable payments towards his rental arrears and ‘engaged in good faith efforts to secure emergency rental assistance to cover the arrears' ". Matter of Lafayette Boynton Hsg. Corp. v. Pickett (135 AD3d 514, 23 NYS3d 204 [1st Dep't 2016] ) quoting Harvey 1390 LLC v. Bodenheim (96 AD3d 664, 948 N.Y.S.2d 32 [1st Dep't 2012] ).
With regard to the Third–Party Respondent Ms. Moreno, the court draws a negative inference from her failure to appear at the hearing or to even try to supplement the record at this stage by submitting a sworn affidavit on this motion. She appears to have had a minimal presence in the building since her tenancy allegedly began on December 13, 2016, and no interest in protecting any rights or raising any claims she may have had. Accordingly, the balance of the equities favors Mr. Diop, Pomeroy Co. v. Thompson (5 Misc.3d 51, 784 N.Y.S.2d 278 [App. Term 1st Dep't 2004] ), and Ms. Moreno will need to vacate the premises forthwith.
CONCLUSION
Accordingly, the court grants Mr. Diop's motion to renew and, upon renewal, grants his motion for vacatur of the judgment and restoration to possession, upon payment to Petitioner of the sum of $8191.28. A judgment of possession in favor of Mr. Diop and against Ms. Moreno is further granted, with issuance of the warrant forthwith, execution stayed through and including January 25, 2017.
The court will notify the parties' counsel that copies of this Decision and Order are available and will be provided to them in hand today, or by mail or fax if requested.