Opinion
No. L & T42455/09.
2010-08-4
BFT REALTY, Petitioner, v. Lorraine MEDINA, Respondent, Anton Zagreda, Third Party Respondent.
Frank Buglione, Esq., Buglione, Fritz and Associates, LLC, Bronx, Attorneys for Petitioner. Randi Massey, Esq., Legal Services NYC, Bronx, Attorneys for Respondent Medina.
Frank Buglione, Esq., Buglione, Fritz and Associates, LLC, Bronx, Attorneys for Petitioner. Randi Massey, Esq., Legal Services NYC, Bronx, Attorneys for Respondent Medina.
Alexander Zadrima, Esq., Zadrima & Associates, Bronx, Attorneys for Third Party Respondent Zagreda.
JAYA K. MADHAVAN, J.
This is a summary nonpayment proceeding. Respondent, through counsel, seeks to be restored to possession of 264 East 211th Street, Apt. 3B in Bronx county (Apartment). Among other things, respondent argues that she was evicted pursuant to a stipulation of settlement dated June 10, 2010 (Stipulation) which impermissibly contained claims for legal and other non-rent charges. Nevertheless, respondent contends that she is prepared to immediately tender all rental arrears to date to petitioner to effect her restoration
. In opposition, petitioner argues that respondent was lawfully evicted and that the premises have been relet to Anton Zagreda who is in physical possession of the Apartment. Consequently, Mr. Zagreda was joined as a third-party respondent to this proceeding and appeared through independent counsel. Respondent Zagreda argues that as between himself and respondent Medina, the equities balance in his favor. The court held a hearing on respondent Medina's orders to show cause seeking her restoration to possession and now makes the following findings of fact and conclusions of law.
The court notes that respondent's counsel failed to submit a memorandum of law or any legal authority in support of respondent's claims.
Background
Petitioner commenced this proceeding on July 30, 2009, following service of the petition and notice of petition upon respondent. After respondent's default in appearance and entry of a monetary judgment against her, this proceeding appeared on the Resolution Part's calendar six times between November 2009 and June 2010. During that period, respondent's arrears peaked at $3,733.31 in December 2009 (Order of December 9, 2009) and fell to $708.50 in June 2010 (Stipulation). Respondent, without counsel, entered into four stipulations of settlement during those eight months, each of which required payment of arrears and completion of repairs. Most recently, on May 27, 2010, the court ordered an inspection of the Apartment by the NYC Department of Housing Preservation and Development (HPD). The inspection resulted in the placement of four Class B violations and 1 Class A violation. On June 10, 2010, petitioner stipulated to correct the violations by June 25, 2010, and respondent agreed to pay the sum of $708.50 in alleged rental arrears by June 30, 2010 (Stipulation).
Following respondent's nonpayment of the $708.50, Marshal Bia executed upon the warrant of eviction on July 15, 2010. Respondent then moved for post-eviction relief on July 19, 2010, and July 21, 2010, and this matter was referred to the Trial Part for a hearing as the Resolution Part Judge was unavailable.
Hearing
At the hearing, respondent Medina testified in her own behalf. The court found her to be a credible and compelling witness whose testimony was unrebutted. She testified that in December 2008, she entered into a lease for the Apartment. The Apartment is located in the Woodlawn area of the Bronx where she has lived “pretty much [her] whole life.” She noted that her “mom lives down the block” and that her “sister is around the corner.” Respondent Medina further testified that her children attend neighborhood schools and that her youngest child receives religious instruction at a neighborhood church. Respondent's youngest child also receives ongoing medical treatment at Montefiore Hospital for asthma and a skin disorder.
To pay her monthly rent of $850, respondent works two jobs, 10–12 hours per day, six days per week. She testified that she does not receive ongoing public assistance, but that she has received emergency rental assistance in the past, as well as during this proceeding, to pay her arrears.
On the morning of July 15, 2010, respondent Medina was evicted. She further testified, without rebuttal, that she had been withholding her rent due to petitioner's failure to correct the violations in the June 8, 2010 HPD Inspection Report. Respondent Medina is currently in the NYC shelter system while her children have been separated and are staying with various family members.
The court then heard from third-party respondent Anton Zagreda. Based upon the court's observations of respondent Zagreda's demeanor, as well as the manner and unsubstantiated nature of his testimony, it does not find him to be credible. Respondent Zagreda testified that he learned of the availability of the Apartment on Saturday, July 17, 2010, through a friend, Joy Ujkaj. He then contacted petitioner's managing agent, George Popovic, who showed him the Apartment that same day. The next day, third party respondent Zagreda and Mr. Popovic met in front of the building. Respondent Zagreda testified that he paid Mr. Popovic $1750 in cash representing the first and last month's rent for the Apartment. However, respondent Zagreda was unable to produce an original receipt for this alleged payment. He then testified that he and Mr. Popovic signed a one year lease beginning July 18, 2010 and ending July 17, 2011, and reserving a rent of $875.00 per month, a $25.00 increase over the prior rent (TPR Exh. A)
The court notes that respondent Zagreda was unable to produce an original lease at the time of his testimony on July 29, 2010. Third–Party Respondent's Exhibit A was admitted into evidence on consent of all parties on August 2, 2010.
However, the court then compared Mr. Popovic's purported signature on the lease to his sworn signature on an affidavit of investigation notarized by his attorney. The two signatures are vastly different and were clearly not signed by the same individual. Petitioner offers no credible explanation for this difference, thus seriously undermining the credibility of respondent Zagreda's testimony.
In any event, respondent Zagreda then testified that his cousin, Mat Catzlic, helped him move into the Apartment on July 18 and July 19, 2010. As respondent Zagreda lived alone and did not have much furniture to move, he was able to fully move into the Apartment by July 19, 2010.
On cross-examination, respondent Zagreda testified that prior to allegedly moving into the Apartment, he lived at 118 Helena Avenue in Yonkers. He further testified that he first met Mr. Popovic on July 17, 2010, when he viewed the Apartment. The court then took judicial notice of NYC Department of Finance records on the ACRIS database which confirmed that Mr. Popovic lives at 295 Helena Avenue in Yonkers. Respondent Zagreda also denied that he had ever performed porter tasks for Mr. Popovic in the building on prior occasions.
Respondent Zagreda was then asked about the Apartment. His responses were vague, uncertain, and, at times, defensive and hostile. For example, respondent Zagreda could not recall the color of the kitchen floor tile. He was also unsure of the location of the fire escape. He then called respondent Medina's counsel's questions “nonsense questions” and said that he was “not going to answer th[o]se questions.” When asked whether he had established utility service for the Apartment, respondent Zagreda testified that he had, but failed to offer any proof of such service, such as a Con Edison bill, a cable bill or other such proof.
Finally, respondent Zagreda testified that he works in midtown Manhattan, but that he attends Bronx Community College at night. He further testified that the location of the Apartment made his commute to school easier.
Respondent then called petitioner's managing agent, George Popovic as her witness. Mr. Popovic exhibited a nervous demeanor and like respondent Zagreda, offered very conclusory, unconvincing testimony which the court does not find credible.
Mr. Popovic confirmed that he lived at 295 Helena Avenue in Yonkers but insisted that he did not know respondent Zagreda until July 17, 2010. He testified that the Apartment became available following respondent Medina's eviction on July 15, 2010. He further testified that he signed a lease with respondent Zagreda, but did not produce the original lease at the time of his testimony. Nor did he produce a receipt confirming that he received any sum toward respondent Zagreda's occupancy of the Apartment.
When asked whether he had placed respondent Zagreda's security deposit into an interest bearing bank account, Mr. Popovic shockingly testified that he did not do so because he has not done so for any of the rent stabilized tenants in this building. He also testified that he was unaware that he was not allowed to charge his rent stabilized tenants rent for both the first and last months of their occupancy as a condition of leasing an apartment.
Discussion
RPAPL § 749(3) permits this court to vacate a warrant of eviction for good cause shown ( see also 102–116 Eighth Avenue Associates, L .P. v. Oyola, 299 A.D.2d 296 [1st Dep't 2002]; Parkchester Apartments Co. v. Scott, 271 A.D.2d 273, 273–274 [1st Dep't 2000] ). Thus, “the Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed” (Brusco v. Braun, 84 N.Y.2d 674, 682 [1994] ). Indeed,
[e]ach application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities between the parties....(Parkchester Apartments Co. v. Heim, 158 Misc.2d 982, 983–984, [App. Term, 1st Dep't 1993] ).
Thus, in Oyola the Appellate Division, First Department, affirmed vacatur of a warrant and restoration of a tenant to possession “under the particular facts and circumstances of record” (id., 299 A.D.2d at 296). Where the premises have been re-let to a new tenant who assumes physical possession, the court must also balance the equities between the former and new tenants to determine whether restoration of the former tenant to possession is appropriate (Pomeroy Co. v. Thompson, 5 Misc.3d 51, 52 [App Term 1st Dept 2004]; B & A Realty Co. v. Castro, NYLJ, May 9, 1995, at 25, col. 1 [App Term 1st Dept]; S.W.S. Realty Co. v. Geandomenico, 126 Misc.2d 769, 773 [Civ Ct N.Y. Co] aff'd, 130 Misc.2d 376 [App Term 1st Dept 1985] ).
Under the particular facts and circumstances presented here, the court finds that respondent Medina has established good cause to justify vacatur of the warrant of eviction. It is undisputed that respondent was evicted under the Stipulation for nonpayment of $708.50 “as all rent due through 6/30/10” ( emphasis added ). However, the parties now agree that nearly half of that sum–$333.50–was comprised of legal and other non-rent charges and that the stipulation was in error. Indeed, the parties agree that respondent Medina's actual arrearage on June 10, 2010, was only $375 .00–and not $708.50. Thus, the stipulation misrepresented respondent Medina's rental arrears. Even worse, respondent Medina was then evicted for nonpayment of sums that could not have comprised the basis of a possessory judgment (Fasal v. LaVilla, 2004 N.Y. Slip Op 50252[U], * 1 [App Term 1st Dept], [possessory judgment for non-rent charges barred in a rent stabilized tenancy]; Related Tiffany, LP v. Faust, 191 Misc.2d 528, 529 [App Term 2d and 11th Jud Dists 2002] [stipulation and judgment vacated for inclusion of non-rent charges] ). Under these facts alone, the Stipulation-and judgment and warrant contained therein-must be vacated ( id.;CPLR 5015[a][3], [permitting vacatur of a judgment entered upon fraud, misrepresentation or other misconduct of an adverse party]; Hallock v. State, 64 N.Y.2d 224, 230 [1984], [stipulation may be vacated where there is fraud, collusion, mistake or accident]; Hotel Cameron v. Purcell, 35 AD3d 153, 155 [1st Dept 2006], [same]; Third F.G.P. v. Babalola, NYLJ, April 28, 1992, at 25, col. 1 [App Term 2d & 11th Jud Dists], [relief from stipulation appropriate where actual arrears are substantially lower than the amount contained in the stipulation] ).
As to respondent Medina's true arrearage, the court notes that there is no dispute that respondent has all rent due through July 31, 2010, immediately available for tender to petitioner. Further, respondent Medina testified credibly that she was withholding her rent because petitioner had failed to correct violations in the Apartment. Thus, there is no evidence that respondent Medina's default in payment was willful.
In addition to considering these undisputed facts, the court must also balance the possible harm engendered or benefit derived by the exercise of its discretion ( NYCHA v. Torres, 81 A.D.2d 681, 683 [1st Dep't 1978] ). Vacatur of the warrant of eviction and restoration of respondent and her minor children to possession would enable petitioner to be made whole immediately as to all rental arrears legitimately due in this proceeding. Thus, any prejudice to petitioner is minimal at best. In sharp contrast, absent restoration respondent and her minor children face the extraordinary harm of continued homelessness ( see Linus Holding Corp. v. Harrison, NYLJ, November 30, 2001 at 18, col. 1 [App Term 1st Dep't], [harmful effects of eviction upon minor child relevant to post-eviction restoration analysis] ). Thus, as between petitioner and respondent Medina, the equities weigh decisively in favor of respondent's restoration to possession.
As between respondent Medina and third-party respondent Zagreda, the equities again weigh in respondent Medina's favor. She and her family have long-standing and substantial ties to the apartment and neighborhood: her children attend school and receive medical treatment close to the Apartment; her parents and sister live in this neighborhood; and respondent Medina herself has lived in the area nearly her whole life. Given these extensive ties, relocation of respondent Medina and her family would pose a substantial hardship. In sharp contrast, even if the court were to accept respondent Zagreda's dubious testimony as true, he has nonetheless lived alone in the Apartment for only two weeks and has not established that he has any significant ties to either the Apartment or the neighborhood. Nor would respondent Zagreda face nearly as much difficulty in securing new housing as respondent Medina and her two minor children.
Conclusion
Accordingly, respondent Medina's orders to show cause are granted. The Stipulation and the underlying judgment and warrant of eviction are vacated. The Clerk is directed to enter a final judgment of possession in favor of respondent Medina and against third-party respondent Anton Zagreda. The warrant of eviction may be issued forthwith and executed after service of a Marshal's Notice of Eviction upon third-party respondent Zagreda. This constitutes the Decision/Order of the Court, copies of which are being handed to the parties' respective counsel today.