Opinion
No. L & T 59061/2011.
2013-04-26
RIVERSIDE PARK COMMUNITY, LLC & Riverside Park Community II LLC, Petitioner–Landlord v. Ronald STUBBS, Respondents–Tenant.
Gutman Mintz Baker & Sonnenfeldt, PC, New Hyde Park, Attorneys for Petitioner. Michael A. Cardozo, Corporation Counsel of the City of New York, New York, Attorney for Movant.
Gutman Mintz Baker & Sonnenfeldt, PC, New Hyde Park, Attorneys for Petitioner. Michael A. Cardozo, Corporation Counsel of the City of New York, New York, Attorney for Movant.
Ronald Stubbs, New York, Respondent Pro Se.
SABRINA B. KRAUS, J.
BACKGROUND
This summary nonpayment proceeding was commenced by RIVERSIDE PARK COMMUNITY, LLC & RIVERSIDE PARK COMMUNITY II LLC (Petitioner) against RONALD STUBBS (Respondent) the tenant of record, seeking to recover possession of 3333 BROADWAY, BUILDING D, APARTMENT D33F, NEW YORK, N.Y. 10031(Subject Premises) based on the allegation that Respondent had failed to pay rent due for the Subject Premises.
PROCEDURAL HISTORY
Petitioner issued a rent demand dated February 16, 2011, seeking $1090.00 in rent arrears at a monthly rate of $165 per month for a period covering August 2010 through February 2011. The Subject Premises were formerly a Mitchell Lama rental, but are currently a fair market rental. Respondent is the recipient of a Section 8 subsidy administered by HPD.
The petition issued on March 4, 2011. On March 14, 2011, Lucky Stubbs (Lucky), Respondent's mother, filed an answer on behalf of Respondent, asserting repairs were necessary and disputing the amount sought. Lucky does not reside in the Subject Premises, but resides in a different apartment in the same building.
The proceeding was originally returnable on March 22, 2011, when Lucky appeared for Respondent and sought an inspection. The court ordered an inspection and the proceeding was adjourned to April 25, 2011. The inspection resulted in five Class B violations being issued.
On April 25, 2011 a friend of Respondent appeared and advised the court that Respondent was homebound. The court (Schreiber, J) made an APS referral and adjourned the proceeding to May 23, 2011. On May 23, 2011, the proceeding was adjourned to June 27, 2011.
On May 26, 2011, APS issued a written determination finding, after three home visits, that Respondent was eligible for protective services effective March 30, 2011.
On June 27, 2011, the court issued a written order adjourning the proceeding to July 25, 2011, at the request of APS, and directing Petitioner to correct the violations. The order further provided “As Resp is in wheelchair the resp may have relative appear for him on 7/25/11 if he prefers.”
On July 25, 2011, Respondent failed to appear and the proceeding was adjourned by the court to August 22, 2011. On August 22, 2011, Lucky appeared, Petitioner provided her with an updated breakdown and the proceeding was adjourned to October 3, 2011 for “APS to appear.” On October 3, 2011, no one appeared for Respondent, and the court adjourned the proceeding “for APS plan” to November 7, 2011. The proceeding was then adjourned to December 12, 2011 “for grant.” On December 12, 2011, the proceeding was adjourned by the court to January 30, 2012. On January 30, 2012, the proceeding was adjourned to March 2, 2012 for trial. The notation on the file provides “APS prepared a DSS one shot package but T unwilling to sign.” The trial date was adjourned to April 10, 2012, and then marked final for May 15, 2012.
On May 15, 2012, Judge Stanley awarded Petitioner a default judgment against Respondent based on Respondent's failure to appear. The order on the file provides “JNAR possession only Adult Protective Services to be notified prior to execution of warrant ...”. The issuance of the warrant was stayed five days. On June 7, 2012 the warrant of eviction issued.
On July 3, 2012, Lucky moved by Order to Show Cause for an order vacating the default judgment. Lucky asserted Respondent was not notified of the trial date, that Petitioner had rejected payments tendered by Respondent, and attached a letter dated May 25, 2012, regarding HQS violations found by HPD. The court (Stanley, J) signed the order to show cause and set a return date of August 8, 2012.
On July 16, 2012, the law firm of Bingham delivered a letter to the court asserting they had just been retained to represent Respondent on a pro bono basis. The letter advised Respondent was a quadriplegic facing homelessness, and was having severe difficulty finding a suitable apartment to move to because of his disability.
It does not appear from the file that the law firm ever filed a notice of appearance, however there is an undated document in the file indicating Bingham McCutchen LLP was attorney of record for Respondent and that Ryan Soots from the firm would be taking over.
Essentially, even after the letter from counsel, the court permitted Lucky to act as an advocate for Respondent, even in the absence of his attorneys.
On August 8, 2012, Judge Stanley issued an order which provided:
Respondent's motion is granted as follows ... Petitioner agrees to release respondent from his lease and sign a HPD move out voucher. Execution of the warrant stayed to September 30, 2012 for respondent to vacate. Upon default serve warrant by mail only. The court will grant further time upon a showing of good faith effort by respondent.
On October 12, 2012, Lucky moved for another order to show cause which was returnable October 25, 2012. The court adjourned the motion to November 20, 2012. On that date Judge Stanley issued a second order which held:
Over Petitioner's objection, execution of the warrant stayed to 12/31/12 for respondent to vacate. Petitioner may pre-serve Notice of eviction by mail only on 12/17/12 or thereafter. Respondent is disabled and has a Section 8 HPD voucher to move.On December 26, 2012, Lucky moved again for a stay. She asserted that Respondent had been delayed in receiving his voucher because Petitioner had failed to sign the necessary paperwork. She further asserted that Respondent had the rent to pay and had been advised to sign the new lease for the Subject Premises and re-certification. Lucky's affidavit also asserted that Respondent was having a difficult time finding an apartment that was handicap accessible.
Respondent's attorney submitted a letter to the court by hand dated December 21, 2012, which detailed the steps taken by Respondent to find a new apartment and sought a six week stay through the date of the expiration of Respondent's transfer voucher. The attorney asserted that Respondent could not move in with his mother because it would increase the size of her household beyond the limit allowed by Section 8. A copy of Respondent's transfer order was annexed to the submission.
On January 4, 2013, Judge Stanley issued the following order:
APS denied a request for assistance. Given the fact that respondent is handicapped and has a move out voucher in the interest of justice execution of the (sic) is stayed to 2/11/13 for respondent to vacate. This is the expiration date of the voucher although respondent states he received an extension. Accordingly, execution of the warrant stayed to 2/11/13 for payment of $5,308 plus Feb rent. Petitioner may pre-serve notice of eviction by mail only on January 31, 2013 or thereafter.
On February 8, 2013, Lucky again moved by order to show cause for an order essentially seeking to vacate Judge Stanley's prior order and allow Respondent to pay the rent and remain in possession of the Subject Premises. Annexed to the moving papers was a lease renewal form signed by lucky for Respondent for a term from November 1, 2012 through October 31, 2013. Lucky also submitted the following statement:
I Lucky Stubbs, am appealing to you Judge Stanley on the behalf of my son Ronald Stubbs that you don't let Riverside Park Comm. evict my son from his apartment. The violations wasn't done until recently and wasn't completed in his apartment. From the conditions from the mold Ronald Stubbs suffered a lung infection because Riverside refused to remove the mold. We paid $1200–1500 to have someone come in for testing of the Apt. D33F at 333 Broadway then we could only afford to do the bedroom to remove to wall, removing all the mold in that room. Riverside came up then and removed the mold in the bathroom and only one side of the kitchen was done to remove the mold. The outlets, paint throughout the apartment, vent. Mr. Stubbs didn't have a working stove for months. The stove leaked gas and Riverside didn't remove that until the fire department and Con Edison tagged it.
You never listened to us about what was going on. Your words was shut up before I send you to the back and we would have to wait until you Judge Stanley get to us. You told Ronald he was a nuisance and that why he was there. Judge Stanley every court visit with Ronald Stubbs going home we play the minute from that visits and my son crys about how he's treated when we come to court. We paid money and no repair was done. After I gave money then Riverside brought Ronald back to court and the verbal abuse continued with the threats to this disabled man. Bad enough Im his POA. I've had (3) cancers, left brain Aneurism now a right brain aneurism. Why are we going through this when Mr. Stubbs only wanted the work done in his apartment. Right now I'm paying for my own Repairs in my apartment because no one seem to understand Riverside Park Comm does not honor their agreement with tenants.
You say he a nuisance, yeah! He a pain but he didn't do anything wrong but to stand up for his rights. Please make Riverside Park Comm live up to their agreement in the lease and make the repairs in their building.
Lucky's order to show cause was signed on condition that Respondent's counsel appear on the return date.
On February 21, 2013, the court (Kraus, J) denied the motion to vacate Judge Stanley's prior order, without prejudice to Respondent's right to appeal Judge Stanley's January 4, 2013 order.
On March 13, 2013, Respondent's attorney moved for a further stay of the eviction asserting additional time was necessary to afford APS an opportunity to open a case and be present at the eviction. The court (Kraus, J) denied the order to show cause per an order advising counsel that its remedy was to appeal Judge Stanley's prior orders.
On March 20, 2013, the court (Hahn, J) granted the order to show cause of Respondent's counsel to be relieved. The motion was made based on counsel's assertion that Respondent no longer wished to be represented by counsel. The court granted the motion on default of Respondent appearing and issued an order allowing the eviction to proceed upon APS notification.
PENDING MOTION
Now DSS moves for an order appointing a GAL for Respondent, and vacating the judgment and warrant upon grounds that Respondent was unable to adequately defend his rights. Movant argues that the underlying default judgment and warrant were issued in violation of CPLR 1201 and 1203. The motion is based on the evaluation of Dr Richard Kassner (Kassner) pursuant to an evaluation he conducted on August 30, 2012.
The evaluation of Kassner provides that Respondent is a 40 year old single man who lives alone with 24 hour home attendants. Respondent became paralyzed as a teenager when he was hit with a stray bullet. Respondent is bed bound and must be transported by wheelchair. Respondent has conspiracy theories about mold and other alleged conditions in the Subject Premises.
Respondent receives income from SSI and it is asserted that Lucky is mismanaging his finances. At the time of the evaluation, Respondent told Kassner there was no pending eviction and that because Judge Stanley had ruled in his favor he was not required to pay rent.Respondent told Kassner he could keep living in the Subject Premises without paying rent because “the judge threw me and my mother out of the courtroom and that was it. Over.” Kassner concluded that Respondent suffers from paranoid delusions.
Kassner's report concludes that Respondent lacks the capacity to relocate on his own and that an Article 81 guardian may be needed for relocation or to manage finances. Respondent demonstrates sufficient income to pay his $165/month rent, but it is believed that his mother controls those funds and that his mother is not acting in his best interests.
Based on Kassner's report, movant asks that the default judgment be vacated and that a GAL be appointed.
Petitioner argues that Respondent has been represented by counsel in this proceeding, that Respondent has not made sufficient efforts to find alternative housing, that the application for a GAL should be denied because it is being made two years after the commencement of this proceeding.
Petitioner annexes a rent history to its opposition papers. The document confirms that Petitioner has continued to receive the subsidized portion of Respondent's rent every month through and including April 2013. In addition to said payments, the breakdown shows that Respondent has made additional payments of at least $836 since the inception of the proceeding, and that additional credits of over $2000 have been made on his account.
DISCUSSION
CPLR § 1201 provides that a person shall appear by a guardian ad litem if “.. he is an adult incapable of adequately prosecuting or defending his rights.” (See also Anonymous v. Anonymous, 1998, 256 A.D.2d 90, 681 N.Y.S.2d 494 (1st Dep't).
When a party's de facto incapacity is perceived, an interested person should apply for appointment of a guardian ad litem. SeeCPLR 1202(a)(2), (3). An opposing party has standing to make the motion, and should do so in order to ensure the effectiveness of proceedings that are adverse to the party who is incapable of adequately prosecuting or defending his or her rights. See, e.g., Sarfaty v. Sarfaty, 1981, 83 A.D.2d 748, 443 N.Y.S.2d 506 (4th Dep't); Rakiecki v. Ferenc, 1964, 21 A.D.2d 741, 250 N.Y.S.2d 102 (4th Dep't). The court may take the initiative on its own. CPLR 1202(a).Following service of process on a Respondent who is in fact incapable of adequately defending the action, Petitioner who suspects such incapacity should take the initiative pursuant to CPLR 1202(a)(3) and apply for appointment of a guardian ad litem if Respondent's representatives do not do so. Otherwise, neither a default judgment against the defendant ( see Practice Commentaries on CPLR 1203) nor any other proceedings that prejudice the defendant will be effective ( See, e.g., Rakiecki v. Ferenc, supra ).Similarly, in Brewster v. John Hancock Mutual Life Ins. Co., 2001, 280 A.D.2d 300 (1st Dep't), the court stressed counsel's obligation to seek the appointment of a guardian ad litem (CPLR 1202(a)(3)) when it becomes apparent that his or her own client has become incapable of protecting her interests.
In this proceeding, it is uncontested that Respondent is severely physically disabled and that he is mentally ill. It is undisputed that the court, Petitioner, and his own attorneys were all aware that these disabilities qualified him as someone unable to adequately defend his rights in this proceeding, yet at no time was a guardian ad litem appointed for Respondent.
Instead a default judgment was entered against him by the court.
Even more perplexing, after the entry of the default judgment, the court issued several orders essentially treating this as a holdover proceeding and giving the Respondent time to vacate. Respondent, in large part due to his severe handicap, was never able to find a place to move to.
Respondent never had a trial and never signed a stipulation settling the proceeding.
Respondent essentially never had a day in court.
Moreover, much, if not all, of the amount due on the underlying petition, upon which the default judgement was presumably entered has been paid. And throughout this proceeding, through and including April 2013, Section 8 has continued to make monthly payments of its portion of the monthly rent and Petitioner has continued to accept same.
All of the actors in this matter failed to timely take the necessary action of seeking the appointment of a GAL for Respondent. This includes, Petitioner' counsel, the court and Respondent's counsel, as well as movant. Moreover, there has never been a resolution of the substantive non-payment claim.
When this court first presided over this proceeding in February 2013, the court was reluctant to go beyond the prior orders issued by Judge Stanley, based on the facts that Respondent was presumably represented by counsel and Judge Stanley had presided over the matter for a long period of time and had much greater familiarity with the underlying facts. The court presumed that if Respondent felt aggrieved by Judge Stanley's orders, his attorneys would move to appeal them.
Instead counsel moved to be relieved and that motion was granted by another Judge who's decision is law of the case and binding on this court.
Based on the foregoing, the motion for a guardian ad litem is granted. The default judgment and warrant of eviction are void as a matter of law and are therefore vacated. As a condition of vacating the default, the petition is amended to include all rent due and owing through April 2013.
The proceeding is restored to the calendar for the appearance of a GAL on May 20, 2013 at 9:30 am.
This constitutes the decision and order of the Court.