Opinion
No. 18978/12.
2013-04-8
NYCHA–KINGSBOROUGH HOUSES, Petitioner, v. Yesenia SANTIAGO, Respondent.
Kelly D. Mac Neal, Acting General Counsel, New York City Housing Authority, James E. Bayley, of Counsel, New York, for Petitioner. South Brooklyn Legal Services, Inc., Satish Nori, of Counsel, Brooklyn, for Respondent.
Kelly D. Mac Neal, Acting General Counsel, New York City Housing Authority, James E. Bayley, of Counsel, New York, for Petitioner. South Brooklyn Legal Services, Inc., Satish Nori, of Counsel, Brooklyn, for Respondent.
GARY, F. MARTON, J.
Respondent moves for leave to reargue the decision and order dated March 21, 2013. That decision and order denied her motion for leave to renew the decision and order dated March 18, 2013. That decision and order denied her motion to be restored to possession. Now the court grants the requested leave but otherwise denies the motion. All stays are vacated.
Petitioner (“NYCHA”) began the above-captioned nonpayment proceeding in October, 2012. Respondent interposed a form pro se answer dated October 16, 2012. The answer has a checklist of 17 different defenses. Respondent checked one, to wit, No.14 “General Denial.” Also at that time there was pending against respondent at NYCHA an administrative proceeding, commenced in 2011, to terminate her tenancy on two different grounds, non-verifiable income and chronic rent delinquency.
On this proceeding's first return date of November 5, 2012 the parties entered into a stipulation of settlement that the court “so ordered.” In brief, the stipulation provided that there were rent arrears of $1,509.85, that a judgment for that amount would be entered, that respondent would pay December's rent as it came due and the arrears by December 28, 2012, that repairs were not needed, and that upon default petitioner might have a warrant issue and execute thereon.
Respondent did not make the stipulated payments. A warrant issued on February 15, 2013. Respondent was evicted on March 14, 2013.
Respondent moved for relief. On the motion's March 18, 2013 return date she could not pay the rent arrears, much less the legal and marshal's fees incurred by petitioner. At argument respondent asserted that she was seeking to reopen a closed public assistance case, but she acknowledged that she did not have an approval or otherwise show that anything could be paid. The court held that on those facts it could not restore respondent to possession, and by a decision and order denied the motion.
By an order to show cause sought later that day and made returnable on March 21, 2013, respondent moved for relief on the ground that she had secured an approval from the City of New York's Human Resources Administration (“HRA”) for payment of $2,801.07, i .e., an amount that would pay all rent arrears and petitioner's legal and marshal's fees. Petitioner opposed the motion principally on two grounds. One was that regardless of HRA's commitment to pay in the near future, respondent had not made the requisite showing that her default on the stipulation had been inadvertent, de minimis, or promptly cured, see, Davern v. Vaughn, 161 Misc.2d 550, 551, 616 N.Y.S.2d 683 (App Term, 2nd & 11th Jud Dists, 1994). The other ground was that restoration would be futile because respondent's tenancy had already been terminated on other grounds. Petitioner demonstrated that it had initiated in 2011 an administrative proceeding to terminate respondent's tenancy on the grounds of non-verifiable income and chronic rent delinquency, and that by an administrative determination dated January 30, 2013 her tenancy had terminated. Respondent denied knowing about the administrative proceeding, but her denial was belied by petitioner's showing that she had participated therein on at least one occasion by stipulating in writing to an adjournment of the process from May 29, 2012 to August 28, 2012. By a decision and order dated March 21, 2013 this court denied respondent's second order to show cause seeking restoration to possession .
Did HRA know of NYCHA's administrative termination of respondent's tenancy when HRA approved payment of $2,801.07? If not, would HRA revoke its approval if it were to learn now of that termination? No party has raised this issue. In light of the result reached here, the court declines to address it.
Now represented by counsel, respondent moves again for relief. She asserts first that she should be restored to possession now because she has now not simply an approval for payment of $2,801.07 but the ability to tender the funds now. Second, she urges that the court erred by taking into account in its decision and order dated March 21, 2013 the administrative termination of her tenancy. Third, she contends that her default in making the stipulated payments was caused by governmental delays in providing assistance.
The court rejects the first argument. RPAPL § 749(3) provides that the issuance of a warrant “cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant * * * * ” Of course, it has long been clear that even after execution of the warrant, for “good cause” a court may vacate the same and reinstate a tenancy, Parkchester Apartments Co. v. Scott, 271 A.D.2d 273, 273–74, 707 N.Y.S.2d 55 (1st Dep't, 2000), but it has also long been clear that a tender of sums due does not by itself constitute the requisite good cause, see, e.g., 32–05 Newtown Avenue Assoc. v. Hailazopoulos, 168 Misc.2d 125, 645 N.Y.S.2d 260 (App Term, 2nd Dep't, 1996), The Sherwood Complex, LLC v. Dunn, 24 Misc.3d 136(A) (App Term, 2nd, 11th & 13th Jud Dists, 2009).
The court is not persuaded by the second argument. For support, respondent relies heavily on New York City Housing Authority Butler Houses v. Williams, 7 Misc.3d 1028(A), 2005 WL 1306064 (Civ Ct, Bronx Co, 2005). That reliance is misplaced. Butler was a nonpayment proceeding and the respondent therein had been evicted. Upon respondent's motion to be restored to possession, the court conducted a traverse, sustained the same, explicitly found that it “lacked personal jurisdiction over respondent,” vacated the judgment and warrant, and directed petitioner “to restore respondent to possession forthwith.”
Thereafter, the Butler court engaged in a discussion about whether it might entertain, in opposition to the tenant's motion to be restored, petitioner's allegations of the tenant's undesirability, and the court concluded that it might not. This discussion was only dicta. Moreover, while the Butler court was asked to entertain allegations of undesirability, this court is confronted not with allegations of undesirability but instead with the established fact of a final administrative determination terminating respondent's tenancy for non-verifiable income and chronic rent delinquency .
Respondent does not address the issues of non-verifiable income and chronic rent delinquency other than by asserting in conclusory terms that she plans to take unspecified steps to reopen that proceeding.
Respondent also argues in reliance on Butler that since the predicate notice for this proceeding limits its scope to the issue of nonpayment of rent, this court's consideration of the administrative determination erroneously converts the instant proceeding from a nonpayment to a holdover. The court rejects this argument. It might obtain if the issue were whether to terminate respondent's tenancy. However, the issue here is not that; instead, it is whether to reinstate a terminated tenancy, and whether the search for the requisite “good cause,” Parkchester, supra, should be confined to issues raised either in the predicate notice or directly implied thereby. The court holds that its inquiry need not be so limited.
The court is not persuaded by respondent's third argument either. While governmental error or delay in providing assistance may suffice to excuse a default and provide a basis to restore to possession, see, e.g., Pomeroy Company v. Mattie Thompson, 5 Misc.3d 51, 784 N.Y.S.2d 278 (App Term, 1st Dep't, 2004), here respondent does not show the same. Instead, she alleges only that she had several appointments to obtain public assistance but that due to her children's health emergencies she failed to appear for the appointments. These allegations may be true but they do not provide a basis for finding that her failure to pay is attributable to governmental error or delay.
Accordingly, respondent's motion is denied as set out above. The court will notify the parties by telephone that copies of this decision and order may be picked up in the courtroom.