Opinion
90243/15
03-03-2017
Ocean H LLC, Petitioner, v. Nancy Roland, Respondent.
Slochowsky & Slochowsky, LLP, Brooklyn, for Petitioner. Joan L. Beranbaum, DC37 Health and Security Plan, New York City, for Respondent.
Slochowsky & Slochowsky, LLP, Brooklyn, for Petitioner. Joan L. Beranbaum, DC37 Health and Security Plan, New York City, for Respondent. Michael L. Weisberg, J.
This is a holdover summary eviction proceeding premised on the claim that Respondent breached a substantial obligation of her tenancy by chronically failing to pay her rent. Petitioner alleged that Respondent's failure to pay rent on time caused it to commence six nonpayment summary eviction proceedings between 2012 and 2015 (two in 2012, one in 2013, two in 2014, and one in 2015). Respondent's tenancy is subject to rent stabilization and she has lived in the apartment for over 34 years.
The parties (both represented by counsel) settled the proceeding in November 2015 with a written agreement by which Petitioner was awarded a judgment of possession and issuance of a warrant of eviction. Execution of the warrant was stayed so long as Respondent paid her rent by the tenth day of each month for the period December 2015 through May 2017. The agreement provides that "time is of the essence" and "no default deemed de minimis." But it also requires that upon default in payment Petitioner was required to serve Respondent's counsel a "5 day notice of default" and that during that five-day period Respondent would have the opportunity to cure her default.
Respondent did not answer the petition or move for accelerated disposition prior to entering into the agreement.
Respondent has moved for a stay of execution of the warrant of eviction after having defaulted in her obligations set forth in a subsequent agreement (dated January 26, 2017), which stayed execution of the warrant of eviction on the condition that she pay $4,144.53 (which included February rent) by February 10, 2017 and which extended the period during which she was obligated to pay the rent by the tenth of the month on pain of eviction through November 2017. That agreement had settled a prior motion in which Respondent sought a stay after having defaulted in her obligation to pay rent pursuant to the original agreement. In that motion Respondent alleged that she had been forced to stop working because of an injury suffered at her place of employment, and that as a result she had not been able to pay her rent timely.
Prior to that, in May 2016, Respondent had also sought a stay of eviction after failing to timely pay her rent. In that motion Respondent alleged that she had started a new medication, methotrexate, which is both a chemotherapy agent and an immunosuppressant, and that the medication caused complications which caused her to miss work and resulted in her admission to the hospital for a week, all of which resulted in diminished paychecks and an inability to timely pay the rent. The Hon. Howard Baum granted the motion insofar as granting Respondent additional time to become current under the November 2015 agreement and "restor[ing] Respondent to the terms of" the agreement upon timely compliance.
Here, Respondent's attorney alleges in her affirmation dated February 10th that on that same day she was in possession of Department of Social Services checks totaling $2,762.94 and a check from her firm in the amount of $200.00, all payable to Petitioner. Attached to the motion is a DSS printout showing payment of $430.00 in shelter allowance on Respondent's behalf on January 28, 2017. Accordingly, Respondent was short by $751.59 in her ability to comply with the agreement. Respondent's attorney alleges that the organization University Settlement "pledged" to pay $1,000.00 on Respondent's behalf, but that it would not do so without a breakdown on Petitioner's letterhead. No affidavit or other documentation from University settlement is attached to the motion, nor is an affidavit from Respondent.
In court on the return date of the motion Respondent had funds sufficient to pay all rent due through February 2017.
Respondent does not cite any court decisions in support of her motion, nor does her motion contain anything that might be considered a legal argument. Respondent might have argued that, in the context of holdover proceedings based on chronic nonpayment of rent, the Appellate Term has repeatedly held that "enforcement of a stipulation remains subject to the supervision of the court" and that the court is "not necessarily bound by language in the stipulation stating that no breach shall be deemed de minimis" (e.g. Sharp Image of NY, LLC v Williams, 49 Misc 3d 150[A], 2015 NY Slip Op 51745[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).
Citation to this case and others were to be found in Judge Baum's decision in this proceeding. --------
Petitioner has opposed the motion, arguing that there is no basis to vacate the parties' agreement and directing the court's attention to the provisions in the original agreement regarding time being of the essence and no default being de minimis. Petitioner does not address Respondent's claim regarding the rent breakdown having been provided on a piece of notepad paper rather than on letterhead, whether its accuracy or import.
Although the court recognizes and empathizes with Petitioner's frustration resulting from Respondent's three defaults in less than one year, the court is also mindful of the fact that the defaults did not arise from a general inability to pay rent for the apartment and therefore did not go "to the heart of the proceeding and settlement" (Brigham Park Co-op Apts, Sec. 3, Inc. v Rock, 42 Misc 3d 141[A], 2014 NY Slip Op 50220[U] [App Term, 2d, 11th & 13th Jud Dists 2014] [wherein defaults did go to said heart and should not have been excused]). Rather, each of Respondent's defaults resulted from discrete circumstances: medical complications from a medication prescribed for serious health conditions; a workplace accident causing a temporary cessation in her ability to work; and the delay in a charitable organization's fulfillment of its pledge to assist with the arrears due to paperwork requirements. Additionally, while Respondent did not have all the funds available to fulfill her obligations to pay all the arrears due by February 10th, she was short by less than $800.00, did not sit idly by but instead took significant and appropriate steps to obtain those funds, and had all necessary funds on the return date of the motion (cf. Harvey 1390 LLC v Bodenheim, 96 AD3d 664 [1st Dept 2012]).
In view of the above, the court exercises its discretion to excuse Respondent's default in her obligations set forth in the January 2017 agreement and further stays execution of the warrant of eviction in accordance with the terms therein, on the condition that Respondent tender all rent due through March 2017 by March 10, 2017.
In doing so, the court notes that ours is not a system that permits owners to opt to rent to only young and healthy tenants. Like Respondent, some tenants will live in the same apartment for thirty years or more, originally young and healthy, but as they age increasingly vulnerable to maladies and physical injury that may interfere with their employment for a period of time. Those tenants—which is to say, all tenants—may be more likely to temporarily default on payment of rent due to circumstances similar to those herein. Where those defaults result from circumstances beyond the tenant's control, are the type of circumstances that go to the heart of our frailties as human beings, and, as here, are promptly cured, they should not operate to result in the forfeiture of a long-term, rent-stabilized tenancy. Dated: March 3, 2017 ________________________________ Hon. Michael L. Weisberg