Opinion
500233/19
05-25-2021
In the MATTER OF the Application of Steven BANK, As the Commissioner of Social Services of the City of New York, Petitioner, For the Appointment of a Guardian of the Personal Needs And Property Management of B.L., A Person Alleged to be Incapacitated, Respondent.
Counsel for Guardian, New York Foundation for Senior Citizens Guardian Services, Aileen Gutierrez, Esq., AG Law, 305 Broadway, Suite 733, New York, NY 10007, 212-500-3267, gutierrez@aglawoffice.net. Counsel for Proposed Intervenor, Patricia Langer E. 38th Street LLC, Carla M. Seals, Esq., Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., 377 Broadway, New York, New York 10013. 212-431-1300 ext. 701, cseals@borahgoldstein.com.
Counsel for Guardian, New York Foundation for Senior Citizens Guardian Services, Aileen Gutierrez, Esq., AG Law, 305 Broadway, Suite 733, New York, NY 10007, 212-500-3267, gutierrez@aglawoffice.net.
Counsel for Proposed Intervenor, Patricia Langer E. 38th Street LLC, Carla M. Seals, Esq., Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., 377 Broadway, New York, New York 10013. 212-431-1300 ext. 701, cseals@borahgoldstein.com.
Ta-Tanisha D. James, J. Motion (1) for Landlord Patricia Langer E. 38th Street LLC to intervene in this proceeding; (2) directing New York Foundation for Senior Citizens Guardian Services, Inc. to immediately relocate B.L.; (3) permitting the Landlord to proceed with the trial judgment and warrant of eviction; (4) removing New York Foundation as the Article 81 Guardian for Ms. L. for its negligent failure to effectively assist Ms. L.; and (5) granting Landlord leave to bring an action against New York Foundation for monetary damages arising from its negligent failure.
Patricia Langer E. 38th St. LLC, the landlord of the subject premises located at 304 ½ East 38th Street, New York, New York, 10016, commenced a nonpayment proceeding in Housing Court on November 9, 2018, seeking rent for the months of September and October 2018. The matter was first heard on November 28, 2018 and at that time it was revealed that Ms. L. is diagnosed with bi-polar and thus a referral to Adult Protective Services ("APS") was made. APS found Ms. L. eligible for services and requested that the Court appoint a Guardian Ad Litem ("GAL") to protect Ms. L.'s interests. A GAL was then appointed on May 16, 2019.
After a trial held on July 25, 2019, the Court granted a final judgment in favor of the Landlord in the amount of $19,297.50, representing all rent owed through July 31, 2019. Issuance of the warrant was stayed for five days and execution was stayed through August 6, 2019 for payment. Subsequently, Ms. L. was served with a Notice of Eviction and the eviction was scheduled for September 19, 2019. On September 10, 2019, the GAL filed an Order to Show Cause ("OSC") seeking a stay of execution of the warrant of eviction. The OSC was returnable September 20, 2020. On September 13, 2019, The Department of Social Services commenced an Article 81 proceeding seeking the appointment of a Guardian for Ms. L. and requested that a Temporary Restraining Order ("TRO") be issued to prevent Ms. L.'s eviction and that a temporary guardian be appointed. Counsel for the Landlord appeared in opposition to the TRO request. The OSC on the Article 81 proceeding was signed on September 16, 2019 and the TRO was issued preventing Ms. L.'s eviction and New York Foundation for Senior Citizens Guardian Services, Inc. ("New York Foundation" or "NYF") was appointed as temporary guardian. On December 17, 2019 the Court found Ms. L. to be incapacitated and appointed New York Foundation permanent Guardian. The Order and Judgment appointing Guardian of Person and Property of B.L. was signed on January 30, 2020.
Following the conclusion of the Article 81 proceeding, the nonpayment proceeding was transferred to Part I and the Court held several conferences with the Guardian and Landlord regarding the rent arrears and the Guardian's ability to pay rent on behalf of Ms. L. The Landlord filed the instant motion on October 20, 2020 after the Guardian was unable to pay the arrears and/or relocate Ms. L. to a different residence. After a review of the papers submitted and taking into consideration the arguments made by counsel on the return date of the motion, the Court denies the motion in its entirety for the reasons set forth herein.
New York Foundation indicated that due to the COVID-19 Pandemic there was a delay in commissioning and opening a Guardianship account and marshalling Ms. L.'s income.
The Landlord first seeks to intervene in the Article 81 proceeding and argues that its interests have been inadequately represented and adversely affected by the guardianship and the Guardian's inadequate attempts to secure the rental payments. The Landlord further claims that it is not opposed to Ms. L.'s occupancy, however, Ms. L. cannot continue to reside in the apartment without paying both the ongoing rent and the substantial rental arrears that have accrued. The Landlord's motion to intervene is predicated on CPLR 1012, which permits intervention when "(1) a statute confers an absolute right to intervene; (2) representation of the person's interest by the parties is or may be inadequate and the person will be bound by the judgment; or (3) the action involves the disposition or distribution of the title or a claim for damages for injury to property and the person may be adversely affected by the judgment" ( Rink v. State of New York , 27 Misc.3d 1159, 901 N.Y.S.2d 480 [2010] ).
The Guardian argues that the motion to intervene should be denied as there is no intervention as of right in an Article 81 guardianship proceeding pursuant to CPLR 401. The Guardian further argues that the motion is procedurally defective as it does not include a proposed pleading setting forth the claim or defense for which intervention is sought as required by CPLR 1014. Moreover, the Guardian claims that the Landlord does not identify any interest that is not adequately represented by other parties to this proceeding and that it is unclear whether the Landlord wants to intervene as a petitioner or a respondent. The Guardian states that the issue of whether Ms. L. will be moved from her home, and if so where, presents a conflict of interest for the landlord in that it has a financial interest in having the apartment vacant.
Upon review of the instant facts, the Court finds that the Landlord does not have the right to intervene pursuant to CPLR 1012 and CPLR 1013. The landlord is not authorized to intervene as per any cited statute and the Landlord's interest was not inadequately represented nor is it bound by the judgment of the Article 81 guardianship. In fact, the Landlord was afforded an opportunity to be heard prior to this Court issuing the TRO preventing Ms. L.'s eviction. Lastly, there are no claims of disposition or distribution of a title or a claim for damages for injury to any property and there is also no possibility that the Landlord would be adversely affected by the disposition in the Article 81 case in which it was determined that Ms. L. required a guardian to protect her personal needs and property interests.
The Guardian correctly argues that a Guardianship proceeding is a special proceeding and therefore a motion to intervene is governed by CPLR 401. CPLR 401 provides that in a special proceeding intervention can only be had by leave of court. Accordingly, there is no right to intervene and this application is not governed by CPLR 1012. Moreover, the Court looks to Matter of J.J. , 32 Misc 3d 1251A (Sup. Ct. NY Cty. 2011), in which New York Foundation sought to permanently place an incapacitated person ("IP") in a skilled nursing facility, relinquish his apartment, judicially settle the final account and be relieved as Guardian. Isabella Geriatric Center, Inc. ("Isabella"), where the IP had been residing, filed an OSC seeking to intervene. The Court held that Isabella could not intervene, reasoning that Isabella's entitlement to notice of the Guardianship proceeding did not provide a basis for intervention as a party. The Court further held that Isabella was not entitled to service of the petition nor was it affected by the outcome such that it could be an aggrieved party with standing to appeal. The Court further noted that the issue of whether the IP should be permanently placed raised a conflict of interest for Isabella, which benefited from the Medicaid payments received for the care of the IP (Id ). Here, while the Landlord is an interested party to the Guardianship proceeding and is adversely affected financially by Ms. L.'s failure to fulfill her rent obligation, that in and of itself does not entitle the Landlord to intervene in the entire Guardianship proceeding, which involves more than where Ms. L. resides.
The Court further looks to CPLR 1013, which permits discretionary intervention. CPLR 1013 "authorizes intervention by permission when a statute confers a right to intervene or when a person's claim or defense and the main action have common questions of law or fact" (Id ). In the instant matter, the Court finds that there are no common questions of law or fact. In the Guardianship proceeding, the Court must determine whether based on the totality of circumstances it is in the Incapacitated Person's best interest that they be appointed a Guardian. The Landlord's instant motion does not discuss the best interest of Ms. L. Rather, the Court concurs with the Guardian's assertion that the issue as to whether Ms. L. should be moved from her home is one that raises a conflict of interest for the Landlord, as it financially benefits from the outcome.
Additionally, the law requires that a motion to intervene, whether pursuant to CPLR 1012 or CPLR 1013, "shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought" pursuant to CPLR 1014. The Landlord failed to provide a proposed pleading as required under CPLR 1014, thus its application for intervention fails to establish an appropriate claim or defense that would meet the statutory requirements of CPLR 1012 or 1013 and it is unclear whether the Landlord seeks to intervene as a petitioner or as a respondent.
The Landlord further seeks to remove NYF as the Article 81 Guardian. The Landlord argues that they have given NYF ample opportunity to preserve its ward's home to no avail. Given that the Order appointing NYF authorizes tenant relocation, the Landlord requests an order obligating NYF to do so immediately. If NYF fails to relocate the tenant, the Landlord requests that NYF be removed as Guardian so that the Landlord can proceed with eviction. Additionally, the Landlord seeks leave to bring an action against the Guardian for monetary damages based on the Guardian's alleged negligence in failing to relocate Ms. L. The Guardian argues in opposition that the Landlord is not a party to this proceeding and therefore lacks standing to make these applications.
The Court denies the Landlord's applications. The Landlord does not set forth any duty that New York Foundation owed to the Landlord in its individual capacity that was breached. Moreover, Mental Hygiene Law ("MHL") 81.35 specifies who may bring a removal action. The motion may be made by the person examining initial and annual reports pursuant to MHL 81.32, or by any person entitled to commence a proceeding pursuant to MHL 81.06. A person entitled to commence a proceeding is "a person otherwise concerned with the welfare of the person alleged to be incapacitated. For purposes of this section a person otherwise concerned with the welfare of the person alleged to be incapacitated may include a corporation, or a public agency, including the Department of Social Services in the county where the person alleged to be incapacitated resides regardless of whether the person alleged to be incapacitated is a recipient of public assistance" ( MHL 81.06 ). Upon review of the facts of this case, the Landlord does not fall into any of the above-mentioned categories. The Landlord was not a party to the Article 81 proceeding, and thus cannot bring a motion to remove NYF as Guardian. Similarly, the Court denies the Landlord's motion for leave to bring an action against New York Foundation for monetary damages arising from its alleged negligent failure, as the Landlord fails to set forth what damage it has suffered other than not receiving rent.
Alternatively, the Landlord's requested relief to execute the warrant it received after trial is the more appropriate remedy to address the substantial arrears that are owed. The Landlord is correct that the Order appointing NYF as Guardian does not stay eviction indefinitely, but for only sixty days after filing of the Guardian's commission, which has already expired. The Landlord seeks to proceed with the execution of the warrant as this case was filed prior to March 17, 2020 and at the time the motion was filed, the Guardian had not filed a declaration affirming that Ms. L. met the COVID related requirements to continue to prevent eviction. The Court held a conference with counsel for New York Foundation on April 6, 2021 to obtain an update on the Guardian's efforts to either pay the arrears or relocate Ms. L. The Court was informed that the Guardian has applied for supportive housing for Ms. L. and she has agreed to relocate. At this time New York Foundation does not know how long it will take for a determination to be made as to whether Ms. L. is approved for supportive housing, but the Guardian has filed the necessary documents to begin the process. Furthermore, New York Foundation filed a Declaration of Hardship on behalf of Ms. L. on April 14, 2021 and thus, Ms. L. is protected by the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and cannot be evicted prior to August 31, 2021.
Based on the foregoing, the Court denies the Landlord's motion to immediately proceed with the post-trial judgment and warrant of eviction. The Guardian has initiated the supportive housing application process and Ms. L. is currently protected by the eviction moratorium. The Court will require monthly updates from the Guardian to ensure that the Guardian is continuing to complete the process of relocating Ms. L. Furthermore, the Court is cognizant of the fact that Ms. L. is not paying any ongoing rent and that there is a significant amount of arrears. The Guardian has informed the Court of Ms. L.'s monthly income and based on that the Court hereby directs New York Foundation to pay $600.00 per month in use and occupancy commencing in May 2021 until such time that Ms. L. surrenders the apartment, without prejudice to the Landlord.
Pursuant to the rent ledger provided by the Landlord on April 19, 2021, there is currently $61,149.50 in rent, late and other fees owed.
This constitutes the Decision and Order of the Court.