Opinion
70324/08.
Decided January 23, 2009.
Petitioner was represented by: Linda Holmes, Esq. of Counsel Steven Banks, Esq. Legal aid Society, Brooklyn, New York.
Respondent was represented by: Uygar C. Konor, Esq., of Counsel Russell Polirer, Esq., of Counsel Gutman, Mintz, Baker Sonnenfeld, New Hyde Park, New York.
Petitioner commenced this licensee holdover proceeding on the grounds that the respondent entered into occupancy of the subject premises, located at 9502 Kings Highway, Apt. 412, Brooklyn, New York 11212, without the knowledge, consent or permission of the landlord or Department of Housing and Urban Development (HUD).
Petitioner further alleges that the respondent is not a family member of the former tenant of record who is deceased, and did not reside with her, or if the respondent was a family member she was never listed on any of the income re-certifications and /or did not reside with the tenant of record for the two years immediately prior to her demise.
The tenant of record, Luella Hudson, died on or about February 24, 2006. The deceased was the recipient of a project based Section 8 subsidy.
This matter first appeared on the Court's calendar on May 19, 2008 and was adjourned to June 9, 2008 for trial. On June 9, 2008 the parties entered into a stipulation whereby the Court entered a Final Judgment of Possession, warrant forthwith, execution stayed through July 31, 2008 for the respondent to vacate the premises. The stipulation was fully allocuted on the record.
The stipulation further provided that petitioner would allow for a waiver of section 747-a of the Real Property Actions and Proceedings Law (RPAPL) in the event the respondent sought additional time to vacate. As a point of law, RPAPL 747-a applies only to non-payment proceedings and therefore was superfluous with respect to the respondent's ability to obtain an Order to Show Cause, if needed. Regardless, it was the clear intent of the parties that the petitioner would not oppose such relief.
In reviewing this motion, the Court listened to a playback of the allocution.
On July 30, 2008, the respondent, now represented by counsel, moved to vacate the stipulation on the basis that she did not understand the consequences of signing said stipulation and seeks summary judgment alleging that she has a valid defense of succession rights to the subject premises.
Petitioner opposes the motion.
On December 30, 2008, at the request of respondent's counsel, the motion was argued before the court.
This matter was adjourned three times subsequent to July 30, 2008. As a result of judicial reassignments in October 2008, it was referred to this Court on October 31, 2008 by the Judge currently sitting in Part C for a determination of the motion having allocuted said stipulation.
Respondent states that as a result of suffering a couple of strokes she was approved for SSI benefits on March 26, 2008. Respondent claims that she has trouble with her memory and comprehension and does not remember a lot of crucial details about her own history. Respondent further avers that because she was not represented by counsel when she entered into the stipulation she did not understand that she had succession rights. "I believed that I was not entitled to stay since the landlord told me that I was not on the lease." Resp. Affidavit ¶ 12
Respondent contends that as "a remaining family member in a project based Sec 8 building [she] may have succession rights even where the remaining family member is not on the lease." Resp. Affidavit ¶ 13 (Emphasis added)
Respondent posits that she moved into the subject premises with her mother around 1983 and sometime thereafter moved out. She moved back in around 2003 and remained there until her mother's death.
Petitioner counters respondent's assertions by pointing out that respondent requested an adjournment on the initial court date to obtain counsel and was given almost a month to do so. On the next court date, respondent did not appear with counsel and did not request any additional adjournment. Although the case had been adjourned for trial, the respondent chose to enter into a stipulation in lieu of challenging the petitioner's allegations and requiring them to meet their burden of proof that she was a licensee with no rights to succeed to the subject premises.
Petitioner's counsel relies on the holdings of Evans v. Franco, 93 NY2d 823; Sunset Housing Assoc. v. Caban, 190 Misc 2d 343; and Davidson 1992 Assoc. v. Corbett, NYLJ, 2/21/01, p. 25, col. 6, affd. 190 Misc 2d 813 (AT1, 2002) for the proposition that failure of the tenant of record to certify that the respondent resided in the subject premises precludes repondent from succession.
Evans v. Franco makes no reference to project based subsidies but concluded that the tenant of record's failure to list Evans on her re-certification forms for 13 consecutive years deprived Evans of the right to continue on the subsidy and held that there was no basis to conclude that Evans was a family member or that a hearing was necessary to confirm his status.
The court in Corbett found that the criteria of Braschi v. Stahl, 74 NY2d 201, do not allow for succession for non-traditional remaining family members in project based Section 8 units. In affirming that decision, the Appellate Term held:
Project-based subsidies remain with the unit when the tenant vacates, and vacancies are filled from a waiting list maintained by the regulatory agency (citation omitted). No approval was requested or obtained for appellant to reside in the premises as an additional family member (citation omitted) and HUD's policies (citation omitted) do not recognize care attendants as family members for continued occupancy purposes. Under such circumstances, appellant is neither entitled to continuation of the section 8 subsidy (see, Matter of Evans v. Franco, 93 NY2d 823) nor to the necessarily entwined benefit of successor occupancy.
Counsel for the respondent maintains that Evans v. Franco, supra, did not address the issue of project based subsidies and that subsequent case law holds that the content of income affidavits is just one factor to be considered by the courts in determining succession rights, relying on Amsterdam v. Wells, 10 Misc 3d 142 (AT1, 2006).
In reviewing each published decision subsequent to Evans, the Court finds that the Appellate Term, 1st Department, no longer follows its prior holding in Corbett, supra . Six years after that decision, the Appellate Term, without reference to Corbett, held in 2013 Amsterdam v. Wells, supra, that "the absence of appellant's name on the family composition document was not fatal to her succession claim otherwise established by trial evidence. ***** Under such circumstances, appellant was entitled to continuation of the project-based Section 8 subsidy and the dismissal of the licensee holdover proceeding." (Emphasis added) In Wells, as opposed to this case, the parties litigated the issue of succession and the respondent had the opportunity to successfully rebut the allegations of being a licensee. In the case at bar, the respondent chose not to go forward with a trial.
Petitioner also refutes the respondent's argument that she was not competent to make a rationale, intelligent decision when she entered into the stipulation to vacate the subject premises. Petitioner suggests that any disability the respondent may have based on her approval for SSI "is not based upon mental disorders limiting respondent's ability to understand, but result from her inability to physically exert herself to carry on a job in which she is qualified to work." Pet. Affirmation in Opposition, ¶ 12
DISSCUSSION AND CONCLUSIONS OF LAW
As counsel for the respondent notes:
Generally the court will enforce a stipulation of settlement since the administration of justice is served by upholding agreements that have been entered into freely. Hallock v.State, 64 NY2d 224, 485 NYS2d 510, 512 (1984). However, courts may vacate stipulations where good cause is shown, such as where it appears that a party, to his prejudice, has inadvertently, inadvisably, or improvidently entered into an agreement which will take the case out of the due and ordinary course of [the] proceeding . . .' In re Frutiger's Estate, 29 NY2d 143, 149-150, 324 NYS2d 36 (1971). In Cabbad v. Melendez, 81 AD2d 626, 438 NYS2d 120 (2nd Dept. 1981), the court vacated a stipulation where the record showed that the pro se tenant had misunderstood the essence of the agreement, i.e., the tenant believed that the stipulation allowed her tenancy to continue when, in fact, the stipulation provided that she would move out.
Resp. Atty Affirmation ¶ 4
In the case at bar, the Court does not find that the respondent's actions were inadvertent, inadvisable or improvident when she entered into the stipulation at issue.
Unlike the holding in Melendez, supra, there is nothing in the record here to indicate that the respondent "misunderstood the essence of the agreement." This Court specifically informed the respondent that she was agreeing to vacate her premises and she stated that she understood the content of the stipulation and entered into it voluntarily. There was nothing stated or omitted in the allocution that would indicate to the Court that the respondent was in any way confused, disoriented, apprehensive or pressured into agreeing to said stipulation. Nor did the respondent display any reluctance during her pre-allocution conference with the Court's court attorney who reviewed the stipulation with her before submitting to the Court for allocution.
The Decision of the SSA, dated March 26, 2008, pertaining to respondent's disability concluded that the respondent "has the residual functional capacity to perform sedentary work" and although she "has a limited education" she is "able to communicate in English." Thus, while the SSA found a disability regarding the respondent's physical abilities, it did not conclude that she was mentally incapacitated. . (Resp. Ex. "C")
In contrast to the majority of proceedings in the resolution parts where tenants routinely enter into stipulations resulting in final judgments against them on their first court appearance, this respondent would not agree to anything and requested an opportunity to obtain counsel. That request was granted without opposition and the matter was set down for trial. On the subsequent court date, the respondent, once again, appeared pro se and opted to settle rather than proceed to trial. She made no further application for additional time to obtain counsel and, therefore, it cannot be said that she was pressured into resolving her case that day. As almost a month had elapsed between the initial and second court dates, the respondent cannot now state that she had insufficient time to inquire about her rights or legal status vis a vis the subject premises.
Moreover, according to an HRA Psychiatric Evaluation Report by Dr. Richard Kassner, dated December 6, 2007, (Resp. Ex. "D") the respondent informed Dr. Kassner that "the landlord told her she should leave quickly or HUD will never rent to her based on her history of arrears."
Thus, it is clear that the respondent has been aware of her precarious situation regarding her ability to remain in her apartment for at least six months, if not more, prior to the commencement of this action. To argue, at this juncture, that her decision to enter into the stipulation in question, during her second court appearance, was in reliance on representations made by petitioner's counsel, (that her failure to be listed on the re-certification forms submitted by her mother precludes her from succession rights), is disingenuous. Her own evidence, as noted above, belies such a conclusion as she was already aware of her circumstances long before the commencement of this proceeding and her conferences with petitioner's counsel. The respondent not only had prior knowledge of her tenuous legal status, but the opportunity to reflect upon her options during the intervening period between her court appearances. During her initial court date, respondent deferred making any decisions and requested an opportunity to explore the matter further. Respondent did not simply rely on the statements made by opposing counsel, she wanted to seek her own counsel. Her subsequent decision, to agree to vacate the subject premise, was a deliberate one, since she had to right to go forward with a trial, or, at the very least, attempt to obtain a further adjournment for counsel. She chose neither.
Regardless of whether counsel's interpretation of the current case law is correct or not (see Footnote 4, supra), it is not dispositive of this issue as there was no reliance on it by the respondent.
Therefore, the Court finds the respondent voluntarily entered into the stipulation.
Accordingly, the first branch of the respondent's motion to vacate the stipulation is denied and the second branch of the motion for summary judgment is denied as moot.
This constitutes the Decision and Order of the Court.