Opinion
No. 067866/10.
2012-05-30
2720 LLC, Petitioner, v. Shakima WHITE, Respondent.
Jason Blau, Esq., for petitioner. Kathleen Dennin, Esq., Elizabeth Maris, Esq., Legal Services NYC, Bronx, for respondent.
Jason Blau, Esq., for petitioner. Kathleen Dennin, Esq., Elizabeth Maris, Esq., Legal Services NYC, Bronx, for respondent.
STEVEN WEISSMAN, J.
Respondent moves by order to show cause (motion sequence 008) to vacate the judgment and warrant herein and dismiss this proceeding as the rental arrears (excluding a disputed MCI charge and $1,008.82 in actual rent) through January, 2012, were fully satisfied in January, 2012. The sum of $1,008.82 has been approved for payment to petitioner by both the Urban Justice Center and by HELP, USA, but both organizations require petitioner to complete and submit a W–9 tax form to receive the payment and petitioner refuses to supply said tax form. This motion is technically unopposed as petitioner's motion (motion sequence 009–arguably a cross-motion though not designated as such) does not speak to respondent's order to show cause but only to the relief requested in said motion, i.e., a judgment for the disputed MCI charges. On oral argument petitioner postulated that this proceeding cannot end without the MCI charges being resolved and that it is entitled to the existing judgment being extended to include these charges, thus the judgment should be amended to include these charges and the warrant should remain in effect.
Respondent has opposed petitioner's motion in writing, essentially arguing that petitioner has waived its right to seek these charges by failing to pursue them and failing to bill them. Respondent points out that petitioner has twice before in this proceeding brought a motion for these same charges and withdrawn both motions. She further argues that petitioner brings this motion now simply to frustrate her attempt to end this proceeding and have the existing judgment and warrant vacated.
This Court issued an order to petitioner on December 21, 2011, directing it supply the necessary W–9 form within 48 hours. Petitioner has never supplied the form thus the $1,008.82 has never been paid. Petitioner alleges in it's motion that it has not refused to supply the W–9 form, but desires to have the MCI charges resolved first. Put another way, petitioner is holding the W–9 form hostage until it gets what it wants. The Court finds this argument to be nothing more than semantics and that petitioner has, in fact, refused to supply the necessary W–9 form despite this Court's order for same to be supplied by December 23, 2011.
Respondent's motion to vacate the judgment and warrant and dismiss the proceeding is granted. The Court finds that petitioner's refusal to supply the necessary W–9 form is violative of the spirit of the stipulations and orders in this proceeding, and the purpose of the proceeding itself. Petitioner is, arguably, also in violation of NYC Admin. Code § 8–107.5(a)(1) [Local Law 10], which makes it unlawful to discriminate against a tenant because of how they will pay the rent. In fact, it has been held that a landlord is obliged to accept a § 8 voucher based upon Local Law 10, supra (see Rizzuti v. Hazel Towers Co., L.P., NYLJ, 4/2/08, 27:1 [NY Sup. Ct] ). Here, it is a charitable organization and not a government organization, but the argument is the same. Further, it has been held that where a landlord's agent frustrated the tenant's attempts to make timely payments of rent, the tenant should be restored to possession ( HPS Holdings Co. LLC v. AL & Assoc., LLC, 10 Misc.3d 135[A], 814 N.Y.S.2d 561 [Table], 2005 WL 3488430, 2005 N.Y. Slip Op. 52103[U] [AT 2nd & 11th Jud. District, 2005].
Petitioner instituted this proceeding to collect unpaid rental arrears. Respondent is in the position to pay said rental arrears, but for petitioner's refusal to execute the W–9 tax form required by the agencies which will pay the last amount of rental arrears. It is obvious that petitioner's refusal to supply the necessary tax form is for no purpose other than to frustrate respondent's attempt to satisfy the judgment herein, and is in direct contravention of the purpose of instituting this nonpayment summary proceeding in the first instance. Further, the Court finds that, since the only reason that respondent is unable to obtain the final $1,008.82 is petitioner's refusal to cooperate, it determines that petitioner has waived its right to these rental arrears of $1,008.82, and petitioner is permanently estopped from seeking same or trying to evict respondent for these funds (see Manor v. Donati, 28 Misc.3d 133(A), 2010 WL 2990128, 2010 N.Y. Slip Op 51335(U) (AT, 9th and 10th Jud. District, 2010—warrant vacated based upon landlord's refusal to sign W–9 form for payment of rental arrears).
Petitioner's motion for the disputed MCI charges is denied. The Court finds that petitioner has waived its right to seek same in this proceeding but makes no finding as to whether or not petitioner has actually permanently waived its right to seek these charges. The Division of Housing & Community Renewal (DHCR) has primary jurisdiction to determine the issues presented by the parties as to petitioner's attempts to collect these MCI charges and its entitlement to them and respondent's argument that petitioner has waived any claim to collect these charges, and the parties are referred to the DHCR for a determination of that issue.
Accordingly, respondent's order to show cause is granted, the judgment and warrant are vacated and this proceeding is dismissed without prejudice to petitioner's right to seek the disputed MCI charges at the DHCR. Petitioner's motion for those same disputed MCI charges is denied, also without prejudice to petitioner's right to seek the disputed MCI charges at the DHCR.
This is the decision and order of the Court. Copies are being mailed to both sides.