Opinion
L & T 031155/2013
12-28-2015
The Crenulated Company Ltd., Petitioner-Landlord, v. Tracy Purvis, Respondent-Tenant.
For Petitioner: Marc H. Hyman, Esq. Sontag & Hyman, P.C. 69 Roslyn Road Roslyn Heights, New York 11577 Guardian ad Litem for Respondent: Mr. Thomas Giles 515 West 151st Street, Apt. 5W New York, New York 10031
For Petitioner: Marc H. Hyman, Esq. Sontag & Hyman, P.C. 69 Roslyn Road Roslyn Heights, New York 11577 Guardian ad Litem for Respondent: Mr. Thomas Giles 515 West 151st Street, Apt. 5W New York, New York 10031 Javier E. Vargas, J.
Papers Numbered Notice of Motion, Affirmation & Exhibits Annexed...1 Order to Show Cause, Affirmation & Exhibits Annexed...2 Affirmation in Opposition & Exhibits Annexed...3
Upon the foregoing papers and for the following reasons, the motion by Petitioner the Crenulated Company Ltd. ("Landlord"), for the entry of a Judgment of Possession and Warrant of Eviction in the instant pet holdover summary proceeding, is denied; and the cross motion by Respondent Tracy Purvis ("Tenant"), for vacatur of a Stipulation of Settlement, is granted, and the matter is hereby adjourned for further proceedings.
Pursuant to a Lease Agreement dated September 20, 1990, Tenant has resided in the subject Premises, known as 1560-62 Townsend Avenue, Apartment 5D, in the Bronx, New York, owned and managed by the Landlord. The Premises are "subject to Rent Stabilization Law and the rent does not exceed the lawfully stabilized rent permitted under the Law. The Apartment is now subject to the Omnibus Housing Act of 1983 and is registered with [the NY State Division of Housing and Community Renewal] DHCR." For the next 25 years, Landlord and Tenant have continuously renewed the rent-stabilized Lease Agreement as required by law, apparently without noteworthy incidents.
However, on April 16, 2013, Landlord served upon Tenant a "Ten (10) Day Notice to Cure" alleging that she had breached a substantial obligation of her tenancy by illegally "harboring a dog in the Premises without the prior written consent of the Landlord, a violation of Paragraph 11.B of your Lease" and Paragraph 9 of the accompanying House Rules and Regulations, which provides that "Dogs or animals of any kind shall not be kept or harbored in the Apartment, unless in each instance it be expressly permitted in writing by Owner." Tenant was afforded until May 6, 2013 to cure the violation by removing the small Pomeranian dog from the Premises under penalty of the commencement of legal proceedings to terminate her tenancy. According to Landlord, no cure was undertaken by Tenant, prompting Landlord's subsequent service of a Ten (10) Day Notice to Terminate her tenancy on May 23, 2013, for continuing to illegally harbor the dog at the Premises.
Since Tenant did not vacate the Premises on the appointed date, Landlord commenced the instant holdover summary proceeding against her, by Notice of Petition and Petition dated May 30, 2013, to recover possession of the Premises, fair use and occupancy, the issuance of a Warrant of Eviction and reasonable costs and disbursements, on the grounds that Tenant has continuously and illegally harbored a dog at the Premises in contravention of the provisions of the Lease and House Rules. The matter was adjourned on numerous times for trial and then for the appearance of Tenant and her privately-retained counsel, who both were suffering some health reverses. Upon learning of Tenant's alleged health disabilities as a result of back surgery, the Bronx County Housing Court, by Order dated April 24, 2014 (Kullas, J.), appointed Thomas Giles as her Guardian ad Litem ("GAL"), while adjourning the matter for all purposes to May 15, 2014. Another series of adjournments were granted for a GAL Report and subpoena of Tenant's psychiatric medical records. In the interim, Tenant discharged her own attorney.
Finally, on September 11, 2014, with the assistance of the GAL and the Court, the parties agreed to settle the matter, by so-ordered Stipulation of Settlement (Pinckney, J.), affording Tenant time at her "desire" to remove the dog from the Premises by October 11, 2014; requiring her not to harbor or bring any dog back to the apartment; and waiving "all defenses, claims & counterclaims as a result of this proceeding regarding the harboring of a dog." Upon default, Landlord could seek to restore the matter to the calendar for a "final judgment and warrant and the only issue before the court will be whether or not [Tenant] breached this agreement."
By Notice of Motion dated August 5, 2015, Landlord now moves for a Final Judgment of Possession and the issuance of a Warrant of Eviction in its favor and against Tenant, alleging that she has continuously harbored and not removed the Pomeranian from the Premises, as corroborated by Landlord's managing agent. In opposition, Tenant cross-moves, by Order to Show Cause returnable December 9, 2015, for an order vacating the September 11, 2014 Stipulation of Settlement on the grounds that she was heavily medicated and was incapable of understanding the surrounding circumstances of the Stipulation, as she suffers from severe depression, back problems and Post Traumatic Stress Disorder ("PTSD"), as a result of an incident where she was verbally and physically attacked by her supervisor at work. In support of her Cross Motion, Tenant documents her numerous medications and depressive episodes, and provides evidence that her dog, Zimba, has significantly improved her psychiatric condition as well as her Autistic son's emotional well-being. Landlord counters that Tenant's motion should be denied in its entirety because she entered into the Stipulation while been competently represented by the GAL and cannot be permitted to renege at her will. This Court disagrees.
It is axiomatic that stipulations of settlement between parties on pending proceedings are binding contracts enforceable by the court and, as such, they are favored and "will not be lightly cast aside" (Hallock v New York, 64 NY2d 224, 230 [1984]; see Matter of Galasso, 35 NY2d 319, 321 [1974]; Kelley v Chavez, 33 AD3d 590 [2d Dept 2006]). However, the court "possesses the discretionary power to relieve parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into unadvisedly or that it would be inequitable to hold the parties to it" (Genesis Holding, LLC v Watson, 5 Misc 3d 127[A], 2004 NY Slip Op 51218[U] [2004]; see 1420 Concourse Corp. v Cruz, 135 AD2d 371, 373 [1987], appeal dismissed 73 NY2d 868 [1989]). This applies a fortiori in situations, as here, involving a Guardian ad Litem and her ward. In light of the court's "continuing obligation to supervise the guardian ad litem's work, * * * its ultimate responsibility for the GAL's determinations * * * and its [judicial] responsibility, in particular, for overseeing settlements of proceedings involving those who are unable to defend themselves" (BML Realty Group v Samuels, 15 Misc 3d 30, 31-32 [AT 1st 2007], quoting Matter of New York City Hous. Auth. v Jackson, 48 AD3d 818, 819 [2008] [citations and internal quotation marks omitted]), good cause could be demonstrated to vacate a stipulation by a ward represented by a GAL, where it appears that the party has "inadvertently, inadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his[/her] prejudice" (Matter of Frutiger, 29 NY2d 143, 150 [1971]).
Applying the foregoing principles to the matter at bar, Tenant has demonstrated sufficient cause to invalidate the Stipulation of Settlement, even though she had been advised by the GAL. Early on in the proceedings, the Court had the foresight and discretion to appoint the GAL for Tenant. However, it should be noted that the appointment of the GAL herein is not being remunerated and he is essentially a volunteer or amicus for the Court. A GAL "is not a decision-making position; it is an appointment of assistance. The GAL provides invaluable service to the ward, such as applying for public assistance or arranging clean-ups" (1234 Broadway LLC v Lin, 25 Misc 3d 476, 495 [Lebovits, J., Civil Ct, NY County 2009]; see New York City Hous. Auth. v Richardson, 27 Misc 3d 1204[A], 2010 NY Slip Op 50547[U] [NY Civ Ct 2010]). It is this Court's ultimate judicial responsibility to supervise the GAL's determinations and "oversee[] settlements of proceedings involving those who are unable to defend themselves" (BML Realty Group v Samuels, 15 Misc 3d at 31-32).
As such, this Court must throughly examine the circumstances surrounding Tenant's execution of the Stipulation. Although unbeknown at that time, it has now become clear and undisputed that Tenant was suffering from documented and severe mental health issues since 2008, and was heavily medicated at the time of the agreement. Tenant — apparently under the cloud of her own depression and medications — assured the GAL and Judge Pinckney that she wanted to settle the matter and was removing the dog from the Premises. Even so, in reality, that was not her voluntary intention, given Zimba's allegedly positive and emotional influence in her life and that of her child. Despite the GAL's best intentions, he was essentially stymied in his efforts to reach a resolution of the case in light of Tenant's physical and emotional disabilities. As described by Tenant herself: "I decided to sign the Stipulation so that I could get out of that building. I felt as if I was suffocating." Under these circumstances, the Stipulation of Settlement must be vacated (see id.), and the matter must proceed to trial.
In accordance with the foregoing, Landlord's motion is denied and Tenant's cross motion to vacate the Stipulation of Settlement entered herein as inadvisable, is granted, and the proceeding is hereby adjourned to January 11, 2015, at 9:30 a.m. for trial. No further adjournments shall be entertained on this matter give the age of this case. The foregoing constitutes the decision and order of the Court.
E N T E R:
Dated: December 28, 2015
Bronx, New York J.H.C.