Opinion
030635/11
12-21-2011
3171 Rochambeau Ave., LLC, Petitioner, v. Myrna Santiago, Respondent.
Petitioner was represented by: Cohen Hurkin Ehrenfeld Pomerantz & Tenenbaum, LLP Respondent was represented by: Legal Services NYC - Bronx Maura McHugh Mills, Esq.
Petitioner was represented by: Cohen Hurkin Ehrenfeld Pomerantz & Tenenbaum, LLP
Respondent was represented by: Legal Services NYC - Bronx Maura McHugh Mills, Esq.
Steven Weissman, J.
In this nonpayment summary proceeding respondent moves for an order, inter alia, vacating the judgment and warrant herein; staying the proceeding pending the outcome of respondent's administrative hearing before the New York City Housing Authority (NYCHA) challenging the agency's failure to adjust her rent after a decrease in the household income; setting respondent's share of the monthly rent at 30% of her income pending NYCHA's determination; staying execution of the warrant for respondent to satisfy the judgment herein; and such other relief as the Courts deems just and proper. This proceeding has been on calendar since June, 2011, and respondent's arrears on the date of argument, November 17, 2011 (without adjustment but simply based upon the existing NYCHA determination of her monthly share at $994.00), are $10,501.87, according to the petitioner.
Respondent alleges that she made a request to NYCHA for an interim recalculation of her monthly rental share in January, 2011 (her income having changed in December, 2010), and NYCHA did a recalculation, many months after, but made respondent's new share (apparently $499.00 per month) effective as of July, 2011, not retroactive to January, 2011, and respondent argues that the effective date is improper, and that is apparently the issue to be determined in the administrative hearing. A representative of NYCHA appeared in Court and alleged that the reason for the effective date that NYCHA set for the start of the recalculated tenant share of the rent is that the respondent filed the last document required by NYCHA in June, 2011. The Court realizes that the representative in Court was simply advising the Court based upon what the records they were supplied indicated, but the Court gives no weight to NYCHA's claim. From experience, NYCHA loses, misplaces, or any other term you wish to use, more documents than it retains, and has little, if any, credibility before this Court.
Petitioner argues that respondent has made only one payment of $450.00 since this proceeding started, is not even paying that which respondent argues is her proper share of the rent, and that the motion should be denied as respondent cannot show an ability to pay her arrears.
The Court is cognizant of the pending litigation brought by Legal Services NYC - Bronx (LSNY-BX) and The Legal Aid Society (Legal Aid) against NYCHA in the US Federal District Court for NYCHA's consistent failure to make these interim rent adjustment calculations in a timely manner pursuant to statute. Though this respondent may not technically be part of that litigation, clearly the issues are the same and respondent could well be effected by any decision or settlement in that proceeding.
This Court has the power to grant a stay when there is another pending proceeding the ultimate results of which will likely be determinative herein ( McNeill v. NYCHA , 719 F Supp 233 [SDNY, 1989]; Crown Gardens v. Simmons , NYLJ, 4/16/90, 31:1 [Civ Ct, Kings Co]; Stanaj Realty LLC v. Bumpars , 26006/11 [Civ Ct, Bronx Co - unreported decision of Kullas, J.]; 2039 Realty LLC v. Rivera , 003487/11 [Civ Ct, Bronx Co - unreported decision of Villella, J.]; CPLR §2201). Further, Courts have granted stays where §8 issues require determination prior to the resolution of pending nonpayment proceedings ( Matter of Tijani v. NYC Dept of Housing Preservation and Development , 2010 NY Slip Op 33369U [Sup Ct, NY Co, 2010]; Matter of Gill v. Hernandez , 22 Misc 2d 390, 201 NYS2d 111 [Sup Ct, NY Co, 1960]). See also Rainbyrd Realy Corp v. Rivera , 18099/10 (Civ Ct, Bronx Co - unreported decision of Stoller, J.).
It is the opinion and determination of this Court that, in appropriate circumstances, this Court has the authority and obligation to stay proceedings before it pending the resolution of relevant issues before other tribunals, including administrative tribunals, such as exists herein. Accordingly, the requested stay is granted until such time as NYCHA has finally determined the issues before it. Further, the Court sets respondent's monthly share of the rent at $499.00, beginning January, 2011, and continuing, until the issue has been finally determined and this amount is confirmed or another amount is determined to be proper, as well as confirmation of or the setting of another effective date for such adjustment, by NYCHA. Respondent is directed to pay to petitioner all rent due at that rate of rent from January, 2011, through December, 2011, and continuing, giving credit to respondent for any and all payments she has made during said period, to be paid by January 31, 2012, January rent to be paid as due. These payments are without prejudice to either sides right to a greater or lesser amount of rent as determined by the NYCHA proceedings or any other appropriate adjustment to the lawful rent and respondent's proper share thereof. In the event of a default in any payment due hereunder petitioner may move to vacate the stay and restore the proceeding to the Court's calendar for appropriate relief. Either side may move to restore the proceeding to the Court's calendar upon the conclusion of the NYCHA proceedings.
This is the decision and order of the Court. Copies are being mailed to both sides.
Dated:Bronx, New York
December 21, 2011
STEVEN WEISSMAN, JHC