Opinion
L & T 98655/09
10-11-2011
4220 Broadway LLC, Petitioner-Landlord v. Amandy Gomez, Respondent-Tenant
ALLISON M HEILBRAUN, PC Attorneys for Petitioner. KENNETH ROSENFELD ESQ NORTHERN MANHATTAN IMPROVEMENT CORP Attorneys for Respondent By: Alan G. Morley, Esq.
ALLISON M HEILBRAUN, PC Attorneys for Petitioner.
KENNETH ROSENFELD ESQ NORTHERN MANHATTAN IMPROVEMENT CORP Attorneys for Respondent By: Alan G. Morley, Esq.
Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by 4220 BROADWAY LLC(Petitioner) seeking to recover possession of 661 West 179th Street, Apt. 2F, New York, New York 10033 (Subject Premises) based on the allegations that AMANDY GOMEZ, (Respondent), the rent-stabilized tenant of record had violated a substantial obligation of her tenancy by repeatedly failing to tender the monthly rent in a timely manner. PROCEDURAL HISTORY
Pursuant to Rent Stabilization Code § 2524.3(a), Petitioner issued a notice of termination dated November 17, 2009, terminating Respondent's tenancy as of December 9th 2009. The Notice asserted that Respondent had breached her lease by failing to pay her rent on time. The Notice referenced four prior non payment proceedings by index number, covering a period of time from 2005 through 2008. The Notice was served by substituted service on Susie Garcia at the Subject Premises on November 23, 2009. The petition issued December 17, 2009 and was served in the same manner as the predicate notice on December 30, 2009. The proceeding was originally returnable January 4, 2010. On February 9, 2010, Respondent appeared through counsel and filed an answer and a demand for a bill of particulars.
On May 3, 2010, the parties settled the proceeding pursuant to a stipulation. Pursuant to the stipulation, Respondent consented to the entry of a final judgment of possession and forthwith issuance of the warrant. Execution of the warrant was stayed for payment of arrears and for a fifteen month probationary period. The warrant of eviction issued on June 9, 2010.
In July 2010, Respondent moved by Order to Show Cause for a stay on the execution of the warrant. The motion was granted by the Court, pursuant to an order and over Petitioner's objection, extending Respondent's time to pay $11,854.79 in arrears to August 6, 2010 and upon payment reinstating the terms of the May 2010 Stipulation.
On August 4, 2010, Respondent again moved by Order to Show Cause for an order extending Respondent's time to pay arrears pursuant to a FEPS approval received from the State. That motion was resolved by a stipulation between the parties, wherein Petitioner acknowledged payment in Court of $12,598.22 in arrears leaving Respondent with a credit through September 2010 of $128.67 which was to be applied to future rent. The stipulation also provided that the probationary period would be extended from 15 months to 18 months, and that the 18 month period would commence October 2010.
THE PENDING MOTION
On September 8, 2011, Respondent moved again by Order to Show Cause for an order staying execution of the warrant, excusing Respondent's default under the stipulation as de minimis and reinstating Respondent to the terms of the May 3, 2010 Stipulation.The motion was adjourned to October 6, 2011, when the Court heard oral argument and reserved decision on the motion.
Respondent acknowledges in her moving papers that she paid her rent late and states that the delay was due to the fact that she had lost her babysitting job, which she has since regained. Respondent also states that FEPS reduced their payment each month from $900 to $859.60 as of May 1, 2011, causing arrears of $161.60 for the period of May 2011 through August 2011.
Petitioner issued a Notice of Default dated August 2, 2011, asserting Respondent was in default by failing to pay $5.40 for May 2011, and $125.65 per month for June and July 2011. The notice was served by fax on counsel for Respondent on August 4, 2011. Petitioner argues that Respondent should have been responsible for monitoring the FEPS payments and charged thus with knowledge of the defaults. Petitioner further asserts that even if the default due to decreased FEPS payments were excused Respondent still failed to pay the $85.25 she would have owed for June through August had FEPS payments not decreased.
On the return date of the motion, Respondent tendered all outstanding arrears but Petitioner declined to accept said tender asking instead that this Court rule on the pending motion. DISCUSSION
The majority of appellate cases on point hold that a breach under a stipulation of settlement in a chronic non-payment holdover is not to be considered de minimis and that same entitles a landlord to execute on the warrant of eviction where the stipulation provides for that relief (see eg 377 Broome Street Corp. v McManamon 20 Misc 3d 134(A); First Pine Realty v. Morales 28 Misc 3d 126(A); Kalimian v. Cuttarella 2003 NY Slip Op 50956(U); 59-61 East 3rd Street LLC v Campbell 23 Misc 3d 134(A); 359 West 126 LLC v Aniton 12 Misc 3d 146(A); 4966 Broadway Realty Corp. v. De La Rosa 10 Misc 3d 143(A); 705 W 179th Street Realty Inc. v Rodriguez 18 Misc 3d 134(A); Grady, Inc. v. Johnson 23 Misc 3d 137(A); 77 St Realty Associates LLC v Cazzorla 19 Misc 3d 131(A); Uptown Realty Unlimited LLC v. Obregon 4 Misc 3d 131(A).
However, there are instances where the appellate courts have ruled that the default under a probationary stipulation should be excused (see eg 2246 Holding Corp. v Nolasco 52 AD3d 377; 421 W 22 LLC v Walberg 30 Misc 3d 136(A); Giffuni Brothers v Sasso 10 Misc 3d 132(A)).
Factors considered by the courts in making these determinations include the duration of the underlying tenancy, the reason for the default, the number and extent of the defaults, whether the parties were represented by counsel and perhaps most importantly the language of the underlying stipulation.
The case at bar has some unusual facts. Paragraph 10 of the May 2010 Stipulation provides in pertinent part "The parties recognize that FEPS will pay the entire monthly rent and DSS will make two payments each month...". However, clearly this is not what occurred because both parties agree that Respondent was directly responsible for making some portion of each monthly payment but failed to do so.
Additionally, the underlying stipulation does not contain the type of language typically referenced when courts hold that strict enforcement is called for by the terms of the stipulation. For example, the stipulation did not provide that no default would be de minimis or that "time is of the essence" regarding payment dates. However, both parties were represented by counsel in entering the May 2010 Stipulation and subsequent amendment.
Respondent's current monthly rent is $985.25 and DSS/FEPS pays $859.60 of said amount. Prior to May 2011 DSS/FEPS paid $900.00 per month.
Neither party asserts that there are any questions of fact requiring a hearing prior to the court ruling on the underlying motion.
Based on the foregoing, the Court finds that Respondent's motion should be granted and the default excused. The Court notes that essentially this is Respondent's first default under the probationary period, as the stipulation provides that the probationary period would not commence until October 2010, after the FEPS payment of arrears. Additionally, it is understandable that Respondent was unaware of the decrease in FEPS monthly payments. While even absent that there remains a marginal default by Respondent on her portion of the rent for June and July, under the circumstances the Court finds that the default should be excused.
The Court notes that it is undisputed that the Respondent has been a tenant for over ten years. Respondent is indigent and the single mother of three children, who reside in the Subject Premises. Respondent was ready willing and able to cure this default on the last court date.
Based on the foregoing, the Court grants Respondent's motion to the extent of staying execution of the warrant through and including October 31, 2011, for Respondent to pay all outstanding amounts due. Upon payment Respondent shall be reinstated to the terms of the May 2010 Stipulation however, the Court further holds that Respondents's probationary period shall be extended to 24 months and run through September 2012, in consideration of Respondent's breach being excused. Upon default all stays are vacated and petitioner may execute on the warrant of eviction by reservice of marshall's notice.
This constitutes the decision and order of this Court.
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HON. SABRINA B. KRAUS
Dated: New York, New York
October 11, 2011