Opinion
402288/10.
Decided February 1, 2011.
Deborah Higgins, Petitioner, Pro Se, Sonia M. Kaloyanides, General Counsel to Respondent, New York City Housing Authority, New York, NY.
Upon the foregoing papers, it is ordered and adjudged that this Article 78 petition is granted the stipulation dated July 2, 2010 approved by the NYCHA Board on July 21, 2010 is vacated. The matter is remanded for an Administrative Hearing on Petitioner's Remaining Family Member Grievance.
Petitioner resides at 545 West 126th Street, Apt. 8C (Manhattanville Houses) which is managed by the Respondent New York City Housing Authority. Petitioner filed a grievance with Respondent to be qualified as a Remaining Family Member (RFM) and succeed to the apartment.
The apartment had been leased to Petitioner's husband, Robert Higgins. In March 30, 1998 Mr. Higgins requested permission for Petitioner to live in the apartment. Permission was denied by the project manager due to a series of "violent incidents" between Petitioner and Mr. Higgins, beginning in March 1996 through February 1998 wherein "staff has witnessed him [Mr. Higgins] assaulting Ms. Higgins." [see Answer Exh. H and M]. Ms. Higgins continued to reside in the premises with Mr. Higgins without NYCHA permission, and on February 21, 2001 NYCHA served him with notice of "Amended Specification of Charges". NYCHA alleged that he "Breached the Rules and Regulations" by permitting "unauthorized person, Deborah Lawrence a/k/a Deborah Higgins, to take up residence in your project apartment, since on or about August 20, 1999, without obtaining prior written consent of your project manager as required. [see Answer Exh. I]. Mr. Higgins resolved the charges by entering into a stipulation with NYCHA on March 20, 2001, which was approved by the Board on April 11, 2001, placing him on probation for two years on condition that he not allow petitioner to reside in or visit at the subject apartment [see Answer Exh. J].
In 2005 and 2006 Mr. Higgins was summoned to the management office with regards to his having an unauthorized occupant in the premises [Mrs. Higgins]. Each time he explained that his wife didn't live with him because NYCHA had denied permission for her to stay in the premises. An entry made on February 25, 2006 in the interview record states "permanent permission request form sent to be filled out by TOR [Tenant Of Record]. [see Answer Exh. K]. Mr. Higgins died on March 8, 2007. Mrs. Higgins stayed in the premises and by notice dated April 30, 2009 was served with a ten (10) day notice to quit [see Answer Exh. M]. She filed a remaining family member grievance which was denied by the project manager, Camilla Kmiec, on July 1, 2009. [see Answer Exh. N]. On August 21, 2009 The Borough Manager, Virgilio Cruz, rendered his decision agreeing with the Project Manager's disposition of her grievance. [see Answer Exh. O]. The grievance was then referred for an Administrative Hearing.
Petitioner was unable to seek the assistance of counsel and appeared Pro-se. on July 2, 2010, following a number of adjournments, Petitioner entered into a stipulation with NYCHA. The stipulation disposed of the administrative grievance proceeding by withdrawing the same with prejudice and waiving all rights to any further administrative or judicial review or proceedings. Additionally Petitioner agreed to move out of the premises no later than December 31, 2010. Paragraph 9 conditioned the stipulation on "the approval of the members of the Authority. If the Authority shall fail to approve this stipulation, then the matter shall be restored to the administrative hearing calendar for a hearing and this stipulation shall be null and void and without prejudice to either party hereto." Although the stipulation states in its 10th paragraph that the stipulation was read and explained to Petitioner, there is no record of that having taken place.[see Answer Exh. T].
Petitioner filed the instant Article 78 Petition on August 20, 2010, less than one month after the Board approved the stipulation. In the affidavit annexed to her petition she provides the court with a glimpse of the type of life she lived next to Mr. Higgins, who appears t have been a heavy drinker that abused her physically and emotionally. She writes, "he used to drink heavy and throw me out of our apartment. He would lock me out for two or three days at a time. I would have to rely on my neighbors to sleep and eat, during that time. When he got sober he would come to the neighbor's house asking me to come back home." She ends her affidavit pleading for reversal because she is "a good tenant, pay my rent on time every month, I have no place else to go [and] am being treated for breast cancer." Finally she claims she didn't understand the terms of the stipulation.[see Petition].
A motion to vacate a stipulation based on mistake should be brought promptly (Scherer, Residential Landlord and Tenant Law in New York § 17: 33). When a stipulation has been entered into with the assistance of counsel or has been "so ordered" it may only be vacated for a unilateral or mutual mistake if (1) enforcement would be unconscionable; (2) the mistake is material and made despite the exercise of ordinary care by the party in error; (3) the innocent party had no knowledge of the error; and (4) it is possible to place the parties in the status quo ante. (See Matter of Abu-Regiaba, 21 Misc 3d 1106(A), 873 N.Y.S. 2d 231 [Surrogate's Ct. Nassau, 2008]; Greene v. M.S. Housing Associates, 24 Misc 3d 1202(A), 889 N.Y.S. 882 [NY Civ. Ct. 2009]; 104-106 East 81st. Street LLC, v. O'Brien, 12 Misc 3d 1175(A), 824 N.Y.S. 2d 764 [NY Civ. Ct. 2006]). The stipulation petitioner seeks to vacate was not between two attorneys, it was between her, a non-attorney, and the attorney for the Housing Authority, and was not "So Ordered" by the court.
The Absence of counsel will not automatically trigger an entitlement to vacate a stipulation (see Finkelstein Ferrara, Landlord and Tenant Practice in New York, § 15:568). "The court has control over stipulations and the power to relieve from the terms thereof when the parties can be placed in statu quo, but the stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature. Where both parties can be restored to substantially their former position the court, as a general rule, exercises such power if it appears that the stipulation was entered into unadvisedly, or that it would be inequitable to hold the parties to it. The circumstances in this case reveal that the stipulation should not be held, in order to promote justice and prevent a wrong." (See Matter of Fruitiger, 29 NY2d 143, 272 N. E. 2d 543, 324 N.Y.S. 2d 36).
Under either criteria this stipulation must be vacated. Enforcement of the stipulation against this pro-se litigant would be unconscionable, unfair. She stands to lose her home without being afforded due process in the nature of an Administrative hearing; there was no way for this pro-se litigant to know the rights she was relinquishing by entering into this stipulation, there is no proof that the stipulation was read and explained to the litigant or that she "completely understood" its terms prior to signing it. The equities favor vacating the stipulation and restoring the parties to their previous position, had the NYCHA Board not approved the stipulation that would have been the result. Petitioner has remained current on the payment of use and occupancy for the apartment. She should be afforded an opportunity for a hearing where she can assert her claim to Remaining Family Member status.
According to the "one year rule" only where a remaining family member has lived in an original public housing tenant's apartment for one year after having been granted written permission to do so may the remaining family member succeed to the apartment (Torres v. New York City Housing Authority, 40 AD3d 328, 835 N.Y.S. 2d 184 [App. Div. 1st. Dept. 2007]). "A showing that the authority knew of, and took no preventive action against, the occupancy by the tenant's relative, could be an acceptable alternative for compliance with the notice and consent requirements." [McFarlane v. New York City Housing Authority, 9 AD3d 289, 780 N.Y.S. 2d 135 [App. Div. 1st. 2004]; Contrary to the argument raised by Counsel for NYCHA this is a potential reason for granting her Grievance.
The Petitioner has a potential meritorious claim to the apartment, she was the victim of domestic violence, is being treated for breast cancer and was being treated for this condition when she signed the stipulation, there is no proof that petitioner was explained and understood the terms of the stipulation prior to signing it, the parties can be restored to their respective positions prior to the stipulation, which would have been the result had the NYCHA Board not approved it. The interview record may show that Project Management knew Petitioner was staying in the apartment, at least as of 2005, and took no preventive action against it.
Accordingly, it is ORDERED and ADJUDGED that the petition is granted, the stipulation dated July 2, 2010 approved by NYCHA's Board on July 21, 2010 is vacated and the matter is remanded for an administrative hearing on petitioner's Remaining Family Member Grievance, and it is further
ORDERED, that the Landlord Tenant proceeding under index number L T 017973/09 is transferred to housing court Part E for further proceedings in accordance with this decision.
This constitutes the decision and judgment of this court.