Opinion
L & T 7415/18-KI
03-08-2019
728 FULTON STREET LLC, Petitioner, v. Cecilia PERCH, Sara Perch, and Jeffrey Perch, Respondents.
A. Lorenzo Bryan, Esq., Attorney for Respondents, 364 MacDough St., Brooklyn, New York 11233, (718) 773-2400 William J. Fallon, Esq., Attorney for Petitioner, 27 William Street, # 1205, New York, New York 10005, (212) 776-9219
A. Lorenzo Bryan, Esq., Attorney for Respondents, 364 MacDough St., Brooklyn, New York 11233, (718) 773-2400
William J. Fallon, Esq., Attorney for Petitioner, 27 William Street, # 1205, New York, New York 10005, (212) 776-9219
Zhuo Wang, J. In this holdover proceeding, Respondents Jeffrey Perch (Jeffrey), Sara Perch, and Cecilia Perch (collectively, the Perches) move to enforce the terms of the parties' July 9, 2018 stipulation. Petitioner opposes the motion.
Factual and Procedural Background
Petitioner is the owner of the building containing the subject premises known as "Apt. First Floor" at 728 Fulton Street in Brooklyn (the premises). Respondents Jeffrey and Sara Perch, who are married, and Jeffrey's mother, Cecilia Perch, are the prior occupants of the premises and have resided at the premises since 1996. Sometime in 2018, Petitioner purchased the building from Jeffrey's niece, the prior owner of the building.
Petitioner then commenced this proceeding to recover possession of the premises from the Perches. On July 9, 2018, the parties, both represented by counsel, entered into a stipulation wherein Petitioner was awarded a final judgment of possession with a warrant of eviction to issue forthwith. Pursuant to the stipulation, execution of the warrant was stayed for the Perches to vacate the premises on or before September 20, 2018. In consideration for their timely vacatur, Petitioner agreed to pay $ 27,500.00 in certified funds directly to Jeffrey. Respondents also promised to deliver the premises "vacant and in broom swept condition" with "any personal property left at the premises deemed abandoned" (see July 9, 2018 stipulation, ¶ 3). Notably, it provided that "[n]o orders to show cause without good cause." On November 9, 2018, the Perches moved for an order directing Petitioner to pay $ 27,500.00 by certified check to Jeffrey, for legal fees including fees incurred to enforce the stipulation, and "for other and further relief as the court deems just and proper." Petitioner opposed the motion. A member of Petitioner, Hezi Torati, alleges by way of affidavit that Respondents breached the stipulation by failing to remove property from the premises which cost Petitioner $ 3500.00 to remove and $ 14,000.00 in lost rental income. On January 9, 2019, the Court (Ofshtein, J.) directed a hearing on the motion.
The Hearing
At the hearing on February 7, 2019, the Perches argued that Housing Court has jurisdiction to direct Petitioner to perform under the terms of the stipulation, that is, to pay $ 27,500.00 to Jeffrey. Alternatively, they seek a money judgment in the amount of $ 27,500.00 as "other and further relief." Petitioner does not challenge Housing Court's jurisdiction to award the relief sought on the motion, but this Court nonetheless reserved decision on this issue until completion of the hearing.
On its case-in-chief, Respondents called Jeffrey, who testified that he and his wife moved out of the premises prior to September 20, 2018 and that they now live at 115 East 88th Street in Brooklyn. Additionally, Jeffrey testified that Cecilia also vacated the premises prior to September 20, 2018, and she now lives on the second floor of the building. Jeffrey also recollected that on or around August 15, 2018, he granted access to Petitioner to inspect the premises. According to Jeffrey, an employee or associate of Petitioner by the name of Arthur Abramov changed the locks on or around September 20th or 21st.
After he failed to receive payment from Petitioner by early October 2018, Jeffrey testified that he called Hezi Torati, principal of Petitioner, who told him to come to his office. There, Jeffrey was given a check, dated October 9, 2018, issued by "LES 71 CLINTON LLC" and paid to the order of "Jeffrey Perch" in the amount of $ 27,500.00. In the subject line, the check reads "for Stipulation of Settlement 728 Fulton St 1st Floor." Petitioner consented to admitting the check into evidence as Respondents' exhibit "B." Although payment was not made by certified funds, Jeffrey accepted it and testified that he attempted to deposit the check, but funds were unavailable because a stop payment was put on the check.
On its case-in-chief, Petitioner called Arthur Abramov, who testified that he is an employee of AAD Group, for which Torati is also a member. Abramov testified that AAD Group is the property manager of the premises and that he is familiar with the premises. Abramov disputed that the locks to the premises were changed on or around the agreed-upon vacatur date because he was present with a hired locksmith to change the locks on September 27, 2018. Additionally, Abramov claimed that the Perches still lived in the premises as of September 27, 2018 because he observed personal property inside the premises on that date. However, on cross-examination, Abramov admitted that no one was present in the premises during his visit on the 27th.
Abramov also admitted photographs taken on October 11, 2018 of the basement, meter room, dining room, living room, bedroom, and entrance to the premises. These photographs, which are darkened copies of the originals, depicts furniture and other items in each room. Abramov testified that, because of the property left at the premises, Petitioner was required to hire a removals crew comprised of six to eight workers and about two dumpsters. No testimony was offered as to the cost of the removal work, and Petitioner admitted at summation that it had no quotes or receipts of payment for the removal work performed.
At summation, the Perches contended that Jeffrey's testimony as to when they vacated is essentially uncontroverted. Moreover, Respondents contend that because Petitioner issued the $ 27,500.00 check after it had an opportunity to access the premises on September 27th, it waived any claim that the premises was not returned in "broom-clean condition" under the stipulation. Petitioner countered that the property left at the premises proves that the Perches had not actually vacated by September 20, 2018 and, accordingly, they were not entitled to the $ 27,500.00 payment. Alternatively, Petitioner contends that the cost of removing the property left at the premises requires an offset against any monies owed to Respondents.
Findings of Fact and Conclusions of Law
Although this issue was not raised by the parties, the Court has an obligation to assess whether it has subject matter jurisdiction to grant the relief sought on the motion. In 952 Associates, LLC v. Palmer , 52 A.D.3d 236, 859 N.Y.S.2d 138 (2008), the First Department was asked whether the Housing Part of the Civil Court had jurisdiction to order a tenant — following her vacatur from the premises — to disgorge monies paid to her by the landlord because of her alleged breach of a stipulation made in Housing Court. The Palmer court answered in the affirmative, stating:
"[T]he Housing Part of Civil Court has the same subject matter jurisdiction to compel compliance with this "so-ordered" settlement agreement (see CPLR 5221[a][3] ; N.Y. City Civ. Ct. Act § 1508 ) as would the Supreme Court (see N.Y. City Civ. Ct. Act § 212 ). Once such jurisdiction is established, Civil Court is able to hear related matters, such as plaintiff's cross motion to disgorge disputed funds, and the determination of monies due defendant, pursuant to its adjunct power under § 212" (see 52 A.D.3d at 236, 859 N.Y.S.2d 138 ).
Absent contrary authority from the Appellate Division from this Department, this Court is required to follow Palmer under the doctrine of stare decisis (see Mountain View Coach Lines, Inc. v. Storms , 102 A.D.2d 663, 476 N.Y.S.2d 918 [2d Dept. 1984] [although ultimately reaching a contrary legal rule from the Third Department, "if the Third Department cases were, in fact, the only New York authorities on point, the trial court followed the correct procedural course in holding those cases to be binding authority at the nisi prius level" since "the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule"]; cf. 1472 Properties, LLC v. Solanki , 52 Misc. 3d 139[A], 2016 WL 4021341 [App. Term 2016] ; Edgemont Assoc., LLC v. Goldman , 58 Misc. 3d 160[A], 2018 WL 1121439 [App. Term 2018] ; Jiskra v. Canesper , 21 Misc. 3d 129[A], 873 N.Y.S.2d 234 [App. Term 2008] ).
But while the First Department in Palmer found that Housing Court's jurisdiction encompassed the equitable relief sought on the instant motion, that is, specific performance, the Appellate Division of this Department has held that Civil Court lacks subject matter jurisdiction to grant such relief (see Cantalupo Const. Corp. v. Richmond Terrace Corp. , 96 A.D.3d 706, 707, 945 N.Y.S.2d 755 [2d Dept. 2012] ; Trump Vil. Section 3, Inc. v. Sinrod , 219 A.D.2d 590, 592, 631 N.Y.S.2d 188 [2d Dept. 1995] ). As such, this Court is constrained to deny that part of the motion for an order directing Petitioner to perform under the stipulation.
Notwithstanding the lack of equitable powers conferred to this Court, awarding Respondent a money judgment in this instance comports with the well-established principle that courts retain jurisdiction to enforce the terms of stipulations without resorting to a plenary action (see Teitelbaum Holdings, Ltd. v. Gold , 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029 [1979] ; Hsu v. Carlyle Towers Co-op. B, Inc. , 102 A.D.3d 835, 837, 960 N.Y.S.2d 433 [2d Dept. 2013] ). Here, the instant stipulation arises from a proceeding brought in Housing Court, the parties contemplated enforcement of the stipulation in Housing Court, and both parties willingly submitted this controversy to Housing Court. Analogous to the doctrine of judicial estoppel, to permit Petitioner to assert that Respondents did not timely surrender only to divest the court of jurisdiction after a finding that they did, strikes this Court as manifestly unfair (compare Maas v. Cornell Univ. , 253 A.D.2d 1, 5, 683 N.Y.S.2d 634 [3d Dept. 1999], affd, 94 N.Y.2d 87, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ). Thus, in the interests of judicial economy, and since Respondents moved for enforcement in a reasonable amount of time after Petitioner's breach, this Court holds that it retains jurisdiction to grant a money judgment.
Having had the opportunity to see and hear Jeffrey's testimony and observe his demeanor, this Court credits Jeffrey's testimony and finds that the Perches vacated the premises prior to September 20, 2018. Indeed, Abramov admitted that no one was in the premises when he came with the locksmith on September 27, 2018. The conclusion that Respondents timely vacated is further supported by the undisputed fact that they never sought to regain access to retrieve their necessary belongings if, in fact, they were still residing at the premises after the 27th.
Petitioner for its part proffered no evidence by way of a bill or receipt for the removals work or lost rental income sworn to in Torati's affidavit. To the extent Petitioner argues that the existence of furniture at the premises constituted a breach by Respondents, the parties contemplated this scenario since the stipulation provided that "any personal property left at the premises [will be] deemed abandoned." Further, Petitioner's claim that the Perches' breach is belied by its issuance of a check for the full, stipulated amount of $ 27,500.00 after it changed the locks on September 27th. Given the paucity of proof submitted at the hearing in support of its claimed damages, this Court finds that Petitioner fails to meet its burden of proving that Respondents breached the stipulation.
Lastly, because no testimony or documentary proof was proffered at the hearing to support Respondent's request for attorney's fees incurred to enforce the stipulation, that part of their motion seeking legal fees is denied. Accordingly, it is
Ordered that the motion by Respondents' Jeffrey Perch, Sara Perch, and Cecilia Perch is granted to the extent that Respondents shall have a money judgment in the amount of $ 27,500.00 in their favor against Petitioner 728 Fulton Street LLC, with statutory interest from September 20, 2018 and costs; and it is further
Ordered that Respondents shall file and serve a copy of this decision and order with notice of entry on Petitioner within 10 days from the date of this order.