Opinion
12-27-2016
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, for petitioner. Eugene Chen, Esq., Bronx Legal Services, Bronx, for respondent. Cris L. Gottlieb, Esq., Bronx, for third-party respondent.
Howard C. Fritz, Esq., Buglione, Fritz & Associates, Bronx, for petitioner.
Eugene Chen, Esq., Bronx Legal Services, Bronx, for respondent.
Cris L. Gottlieb, Esq., Bronx, 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 to Vacate Judgment and Restore to Possession:
| Papers | Numbered |
|---|---|
| Order to Show Cause to Restore to Possession With Attached Affidavit | 1 |
| Affirmation in Opposition | 2 |
Upon the foregoing papers, and after a hearing, the Court's decision is as follows:
PROCEDURAL HISTORY
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. The Petition is dated March 17, 2016, alleges that Respondent is a Rent Stabilized tenant with a current monthly rent of $392.44, seeks alleged unpaid rent of $883.76 (comprised of full rent for the months of February and March 2016 plus a balance of $98.88 for the month of January 2016) and was filed with this court on March 18, 2016. The Petition alleges that the rent was demanded personally from the tenant since it became due. The Respondent failed to answer the Petition, and the court entered a default judgment on July 6, 2016, followed by issuance of a warrant of eviction to City Marshal Bia on July 12, 2016.
Thereafter an Order to Show Cause was taken out on July 22, 2016 by Ibrahima Diop appearing pro se, requesting vacatur of the default judgment and alleging that certain repairs were needed in the apartment. No excuse was offered for the default. Attached to the Order to Show Cause were copies of three money orders adding up to $2100, dated July 22, 2016, with no payee named (blank endorsements). On the return date of August 5, 2016, the Order to Show Cause was adjourned by Stipulation to August 29, 2016 for the tenant of record to appear. The Stipulation was signed by Petitioner's attorney and by Mr. Diop "for Respondent". There was no indication in the Stipulation that the three money orders adding up to $2100 were paid to Petitioner; instead, the Stipulation noted that a payment of $950 was tendered in cash to Petitioner "upon Respondent's behalf only, paid on account". On August 29, 2016 the proceeding was adjourned again, to October 4, 2016, for the tenant of record to appear, and the Stipulation noted that "Respondent of record is unable to appear today". A cash payment of $250 was tendered to Petitioner "on account and paid solely on Respondent's behalf" and Mr. Diop again signed the agreement "for Respondent". On October 4, 2016, neither Respondent nor Mr. Diop appeared and Mr. Diop's Order to Show Cause was denied on default.
Mr. Diop returned to court a week later, on October 11, 2016, to take out a second Order to Show Cause seeking to vacate the default judgment. He again alleged that certain repairs were needed in the apartment. On the return date, October 25, 2016, neither Respondent nor Mr. Diop appeared and the Order to Show Cause was denied on default.
The City Marshal carried out the eviction on November 4, 2016 and Mr. Diop returned to court that day to take out a third, this time post-eviction, Order to Show Cause. In his affidavit he stated, "Please let me get things from house. I will bring receipts on new court date." This Order to Show Cause was denied on the return date of November 9, 2016 due to Mr. Diop's failure to serve the papers on Petitioner's attorney.
Mr. Diop, still appearing pro se, immediately took out a fourth Order to Show Cause, supported by his affidavit in which he asserted, for the first time, that he was the husband of the Respondent-tenant (in his three prior Orders to Show Cause he had stated that he was the Respondent), that he had $3000 available to pay immediately and that he could pay the rest in two weeks. He stated as an excuse for one or more of his prior defaults (although which one or ones was unclear), that he was sick and couldn't go to court. In addition, with regard presumably to the third Order to Show Cause that had been denied because it was not properly served, Mr. Diop explained that he had given it to the super. On the return date, November 14, 2016, Respondent Antoinette Croker appeared by an attorney, W. Marilynn Pierre, Esq., of counsel to Kevin Gold & Associates, and the proceeding was adjourned to November 28, 2016 with a briefing schedule: Petitioner's opposition was due by November 18, 2016 and reply was due on the adjourned date. On November 28, 2016 only Petitioner's counsel and Mr. Diop appeared; neither Ms. Croker nor her attorney Ms. Pierre was present. The proceeding was adjourned to the next morning for the tenant of record to appear. On November 29, 2016 Ms. Croker did appear; she advised the court that she was a Rent Controlled tenant who had succeeded to her aunt's tenancy in the mid–1980's and that Ibrahima Diop, her husband, had lived there since 1995. It was not clear whether or not she also still lived in the apartment. Mr. Diop did not have all the funds with him as he had asserted in his affidavit that he would by that point and instead presented proof that he had applied to the New York City Human Resources Administration ("HRA") for financial assistance to pay the rent arrears. The court heard argument on the Order to Show Cause, and then issued a Decision & Order granting Mr. Diop's Order to Show Cause to the extent of continuing all stays through and including December 12, 2016 at 6:00 pm for payment of the sum of $6991.28, comprised of $3198.28 in rent and other charges due through November 30, 2016 plus $3400 in legal, City Marshal and moving fees, plus $393 for December's rent. The court's order stated that upon such timely payment, Petitioner would be required to restore Respondent and her husband Mr. Diop to possession of the premises.
Mr. Diop was not able to meet his payment deadline, and returned to court on December 12, 2016 to take out a fifth Order to Show Cause. In his supporting affidavit Mr. Diop stated: "I have the past due amount and I would like to pay it so I could gain access to the apartment." Attached to the Order to Show Cause was an HRA Notice of Approval dated December 12, 2016 stating that HRA would "agree to pay $6491.28 provided that the case is in active status or otherwise eligible for assistance." On the return date, December 14, 2016, Petitioner's counsel apprised the court and Mr. Diop that, upon Mr. Diop's default in payment as required by the Court's Order of November 29, 2016, Petitioner had re-rented the apartment to someone by the name of Michelle Lee Moreno. Accordingly, finding that before any other issues could be addressed the new tenant had to be served with the papers and given an opportunity to appear in court, the court issued a Decision & Order which amended the caption to include Michelle Lee Moreno as a third-party Respondent, adjourned the proceeding to December 19, 2016 for a hearing and ordered Respondent and/or Mr. Diop to serve Ms. Moreno with a copy of the Decision & Order and the underlying Order to Show Cause by the next evening at 9 pm, at the premises, either personally or by leaving a copy under the door after making a prior attempt at service, with one attempt to take place either before 8:00 am or after 6:00 pm.
On December 19, 2016 the newly-added third-party Respondent Ms. Moreno appeared by counsel, Petitioner submitted written opposition and Mr. Diop presented a letter from Bronx Legal Services requesting an adjournment. The court adjourned the hearing to December 21, 2016 at 9:30 am. On December 21, 2016 both Petitioner and Mr. Diop appeared by counsel, but neither Ms. Moreno nor her attorney appeared. The court commenced the hearing later that afternoon, and then completed it the next morning, December 22, 2016.
THE HEARING
The hearing consisted of the testimony of two witnesses called by Mr. Diop—Mr. Diop himself and a public benefits expert, Jack Newton. Petitioner did not call any witnesses, and Petitioner's attorney referred the court to the opposition papers which he already had served and filed. Ms. Moreno, the third-party Respondent, did not appear at the hearing at all, and Mr. Diop's attorney requested that the court draw a negative inference from her absence.
Initially, by way of background, Mr. Diop testified that he first moved in to the apartment in 1994 or 1995, either 21 or 22 years ago, and had lived there ever since until he was evicted on November 4, 2016. He had moved in to live with his then-girlfriend, Antoinette Croker, whom he married and, in 1996, had a child with. He testified that he knew that he was not the tenant of record—that is, that the apartment was not in his name—and that he had previously been in court with what he called "a similar problem" during the course of which the judge had "told the landlord to put the apartment in [his] name".
Turning to this proceeding and the fifth Order to Show Cause, Mr. Diop testified that he came to court to file it on December 12, 2016, the judge signed it and when he got out of the courthouse he called the office of the landlord's attorney. The person he spoke with told him to come the next day, which he did, around 11 am or 12 noon. He gave the papers to someone named "Lisa" in the landlord's attorney's office, and she signed the back of his copy of the Order to Show Cause. That document was entered into evidence as Exhibit A, without objection. Lisa's notation consists of her signature and the date "12/13/16", but no time of day.
With regard to serving the amended Order to Show Cause on the new tenant, Ms. Moreno, Mr. Diop testified that he first tried to serve her at 5:45 pm on December 14; he knocked on the door and no one answered. He returned at 7 pm, again knocked, again no one answered and this time he put the papers under the door.
Since being evicted, Mr. Diop testified that he has stayed in different places, and one of those places has been with a friend named Joanne Green who lives in Apartment 6G in the same building as the apartment which is the subject of this proceeding, 985 Anderson Avenue. He testified that he has gone to Apartment 3A, the subject apartment, approximately 30 to 40 times since learning of the new tenant, that he always knocks and no one has ever answered the door. The most recent time he was there was the night before his testimony, at about 10 pm. At that time, he took photographs of the door, including a tag hanging on the doorknob. Two photographs were admitted into evidence without objection as Exhibits B1 and B2, showing the door to Apartment 3A and a "Sorry we missed you" tag from Cablevision, stating that service had been disconnected, the account closed and the equipment needed to be returned or else fees would be imposed.
With regard to the rent arrears, Mr. Diop testified that he tried to get assistance from HRA, and applied at some point in November that he could not recall. He learned that he had been approved on December 12, 2016.
On cross-examination, some additional details were elicited on each of the topics Mr. Diop testified about in his direct testimony:
• With regard to the length of his residency in the apartment and the prior court case in which the issue of transferring the apartment into his name had arisen, Mr. Diop said that he did have documents to corroborate his testimony, but not with him in court; they were with his other belongings in a storage facility located at 261 Walton Avenue in the Bronx.
• With regard to taking out the fifth Order to Show Cause and serving it on the office of Petitioner's attorney, Mr. Diop testified that he was not sure what time he came to court on December 12, or what time he obtained the signed Order to Show Cause, but that he was "in court all day" and that he called the attorney's office, with the signed Order to Show Cause in his hand, from outside the courthouse at around 4:40 or 4:50 pm. He reiterated that he served the papers on Petitioner's attorney's office around 11:30 am or 12 noon on December 13.
• With regard to his attempts to speak with Ms. Moreno, Mr. Diop testified that most of his 30 to 40 visits to Apartment 3A after he was evicted took place either before he went to work, between 7:30 and 8:30 in the morning, or upon his return to the building after work, between 7 and 9:30 in the evening.
• With regard to the rent arrears, Mr. Diop admitted that he did not have the funds on December 12, 2016, that he still does not have any checks from HRA, and that he learned from HRA that his application had been denied.
The second witness, Jack Newton, Esq., Director of Public Benefits and LGBTQ Advocacy at Bronx Legal Services, testified about his background and experience and then was found by the court, without objection, to be qualified as an expert in the area of public benefits for United States citizens and immigrants. Mr. Newton explained what the "PRUCOL" (Persons Residing Under Color of Law) immigration status is and stated his opinion that Mr. Diop's immigration status is PRUCOL; two pages of Mr. Diop's immigration-related documents were entered into evidence, without objection, as Exhibit C and Mr. Newton testified that, based on those two documents which establish Mr. Diop's PRUCOL status, HRA should find Mr. Diop to be eligible for rent arrears assistance. Mr. Newton testified that advocacy with HRA currently was underway by Bronx Legal Services to reverse the denial of Mr. Diop's application for rent arrears assistance based upon his immigration status, that it likely would take 24–48 hours to secure a finding of eligibility for assistance from HRA and then another 24–48 hours to secure an approval of the application.
On cross-examination Mr. Newton stated that there was no current approval by HRA for rent assistance for Mr. Diop, as HRA's prior approval had been rescinded when Mr. Diop was not able to respond to HRA's request that he produce a green card, and that it was possible that HRA would find Mr. Diop to be ineligible.
DISCUSSION
The issue presented is whether or not there is 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 whether the facts of this case present "appropriate circumstances", Matter of Lafayette Boynton Hsg. Corp. v. Pickett (135 A.D.3d 518, 23 N.Y.S.3d 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 Apartment 3A at 985 Anderson Avenue in the Bronx.
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], 100 A.D.3d 803, 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, 607 N.Y.S.2d 212 [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").
Examining the facts of this case, the court finds that Mr. Diop has not established the requisite good cause to be restored to possession. Although this is a long-term (more than 20 years) rent regulated tenancy , that appears to be the only factor that weighs in Mr. Diop's favor. Unlike the tenant in Lafayette Boynton Hsg. Corp. v. Pickett, supra, Mr. Diop has not tendered a substantial portion of the arrears or shown firm commitments of funds from any agencies, nor did he present any evidence that he suffers from disabilities or infirmities that prevented him from resolving his rent payment problems over the course of this proceeding which commenced in March of this year.
While the tenancy is not in Mr. Diop's name it is undisputed that he is the husband of the tenant of record, Respondent Antoinette Croker, from whom his occupancy and tenancy rights devolved. Ms. Croker herself did not appear interested in defending her rights in this proceeding, and it was unclear what her current ties are to the apartment.
Had Mr. Diop tendered to Petitioner the $2100 in money orders that he had attached copies of to his first Order to Show Cause in court on August 5, at which point the rent arrears were $2845.96 (comprised of the Petition amount of $883.76 through and including March 2016 plus rent at the monthly rate of $392.44 for the five subsequent months of April through August), that would have left just $745.96 owed, which is less than two months' rent. However, he did not, he provided no explanation for why he did not, and he appears to have paid only $1200 to Petitioner throughout the course of this proceeding-$950 in court on August 5 and $250 in court on August 29. Accordingly, while at first glance this case appears to mirror one factor the court relied on in Parkchester Apts. Co. v. St. Clair Scott, supra, in which the tenant's motion to be restored to possession was "accompanied by a sworn statement with a money order attached", as things turned out, the money orders Mr. Diop attached copies of were not "apparently in [an] amount which exceeded the combined amount of the balance due on the judgment plus additional rent that had accrued since the date of the judgment", id., and were not even turned over to Petitioner. Further, there was no evidence presented that Mr. Diop had been ill (or had a similar excuse for nonpayment), had "made appreciable payments towards the judgment had no prior delinquency record and, prospectively, had arranged for automatic withdrawal of monthly rent from his bank account." Id.
Mr. Diop does not appear to have applied to HRA for assistance to pay his rent arrears until November, after he was evicted, and as of the close of the hearing on December 22, 2016 he proffered no funds of his own and still did not have an approval from HRA for a "one-shot deal", much less checks ready to tender. Based upon the expert's creditable opinion, it certainly may have been an error by HRA to deny assistance to Mr. Diop based upon his immigration status; however, that denial only occurred after December 12, 2016, and this is not a case like 1240 Sheva Realty Assoc., LLC v. Ramos, supra, where the tenant "promptly and diligently applied to HRA for emergency rent relief, and when HRA delayed payment, she made substantial payments to landlord from personal funds". Also compare, e.g., 117 W 142, LLC v. Villanueva (51 Misc.3d 149[A], 2016 N.Y. Slip Op 50811[U][App Term 1st Dep't 2016] )(good cause to permanently stay execution of the warrant of eviction found to be present where factors included "the indigent tenant's prompt and diligent efforts to obtain the funds, the bureaucratic delays in obtaining governmental and charitable grants, as well as the delay caused by landlord, who initially entered judgment in an amount greater than the arrears actually owed").
Moreover, there is a lengthy history of other unexplained defaults in this proceeding. Mr. Diop never explained why he didn't respond to the Notice of Petition and Petition, why he defaulted on the October 4 adjourned date of his first Order to Show Cause and the October 25 return date of his second Order to Show Cause (other than his nonspecific statement in his affidavit in support of his fifth Order to Show Cause that he had been sick at some unspecified point in time) and why he didn't return to court to take out another Order to Show Cause immediately after defaulting on each of those days. He also never explained why he—or his wife, the named Respondent Antoinette Croker—had not been paying the modest rent of $393 per month throughout most of the year; all that is known from his testimony at the hearing is that he does seem to be working now, as he described his attempts to speak with Ms. Moreno, the new tenant in Apartment 3A, as taking place for the most part before he left for work between 7:30 and 8:30 in the morning and upon his return to the building after work between 7 and 9:30 in the evening. Further, even though the court's Decision & Order of November 29, 2016 very clearly stated that if payment was not made by 6:00 pm on December 12, 2016 all stays would be lifted, Mr. Diop did not return to court to try to secure the necessary additional stay with sufficient time; while HRA's initial approval was dated December 12, 2016, implying that Mr. Diop had to spend at least a part of that day waiting for HRA to make that decision and give him written confirmation of the approval, his testimony was not that he arrived at the courthouse as soon as it opened to try to meet the deadline but rather that he could not recall what time he arrived at the courthouse. Even if had been shown that Mr. Diop's inability to serve the Order to Show Cause on Petitioner's attorney before close of business on December 12 was entirely not his fault and was instead due to bureaucratic delays at HRA and in the Bronx Housing Court's Order to Show Cause room at 1180 Grand Concourse, in light of the history of this case that preceded December 12 and the other facts and circumstances presented, the court would be constrained to deny Mr. Diop the relief he now seeks. In sum, the court finds that the requisite good cause or appropriate circumstances to vacate the warrant, reinstate the landlord-tenant relationship and restore Mr. Diop to possession are lacking and the Order to Show Cause is denied.
While the court credits Mr. Diop's testimony that he properly served the Order to Show Cause on the third-party Respondent Ms. Moreno, and that she appears to have had a minimal presence in the building, given the court's ruling in favor of Petitioner, the court does not need to address the issue of balancing the equities, Pomeroy Co. v. Thompson (5 Misc.3d 51, 784 N.Y.S.2d 278 [App. Term 1st Dep't 2004] ), as between Mr. Diop and Ms. Moreno.
CONCLUSION
Accordingly, the Order to Show Cause of Ibrahima Diop seeking restoration to possession and vacatur of the judgment is hereby denied. The court will mail the parties' counsel copies of this Decision and Order, or otherwise notify them that copies of this Decision and Order are available for pick up at the courthouse.