Opinion
2016-795 K C NO.
06-16-2017
Anis Realty, LLC, Respondent, v. Loretta Powell Roman, Appellant.
Loretta Powell Roman, appellant pro se. Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLP (Ilene Sussman, Esq.), for respondent.
PRESENT: :
Loretta Powell Roman, appellant pro se.
Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLP (Ilene Sussman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 2, 2016. The order denied tenant's motion to vacate an income execution and restore the case to the calendar in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a determination de novo, following a hearing, of tenant's motion to vacate the income execution and restore the case to the calendar.
After the execution by tenant pro se of a so-ordered stipulation of settlement in this nonpayment proceeding, a final judgment was entered on July 15, 2014 awarding landlord possession and the principal sum of $6,759.24. Thereafter, tenant submitted numerous orders to show cause to vacate an income execution and restore the case to the calendar, arguing, among other things, that she did not owe landlord the amount set forth in the stipulation. In an order entered March 2, 2016, the Civil Court denied tenant's motion and stated that it had reviewed landlord's rent records, which showed that tenant had owed $6,759.24 when the stipulation had been executed, and that it had reviewed tenant's rent receipts, which did not create a triable issue of fact as to the amount of the award. On appeal, tenant reiterates the arguments she made in the Civil Court and states that landlord has improperly retained her security deposit.
Inasmuch as the documents that the Civil Court reviewed in making its determination were not entered into evidence as part of a hearing, and unsworn arguments made by the parties during oral argument have no evidentiary value (see Fox v T.B.S.D., Inc., 278 AD2d 612 [2000]), we are unable to determine whether tenant was given appropriate credit for monies paid to landlord. Moreover, in view of the factual dispute regarding the amount of monies owed as of July 2014, the Civil Court should have held a hearing to determine the disputed issue of fact (see City of Poughkeepsie v Nutra-Vet Research Corp., 159 AD2d 675 [1990]; Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; United Props. Corp. v Remax Prop. Network, Inc., 23 Misc 3d 135[A], 2009 NY Slip Op 50811[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).
Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination de novo, following a hearing, of tenant's motion to vacate the income execution and restore the case to the calendar.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 16, 2017