Opinion
L T 60625/07.
Decided August 13, 2007.
Petitioner moves pursuant to CPLR § 2221 for an order of reargument of this Court's order dated May 15, 2007 wherein the Court stayed reletting of the premises for five (5) days to allow respondent to tender $2074 to petitioner as all rent arrears, marshal and attorney fees due through May 2007. The motion is denied.
Essential Facts
Respondent is a rent stabilized tenant who has lived in the subject apartment for fourteen years. He has been diagnosed with Schizoaffective Disorder and HIV. Petitioner has had knowledge of both conditions for some time. Respondent primarily lives on SSI disability income, currently $1024 per month. On May 11, 2007 respondent was evicted from his apartment because arrears of $499.19 had not been paid. Respondent's failure to pay the arrears established owed pursuant to the stipulation of settlement arose solely from the failure of the Department of Social Services ("DSS") to release checks already issued in the landlord's name. Had DSS released these checks, the eviction would have been averted.
In granting respondent's Order to Show Cause (OSC), the Court was persuaded by documentary evidence showing that the DSS check was dated before respondent was evicted and testamentary evidence from respondent's social worker that she had attempted to get DSS to release the check to the landlord.
Respondent was evicted on May 11, 2007. Previously, respondent requested a grant from the HIV/AIDS Service Administration to cover the rent arrears. The request was approved, and checks for the $499 were issued on May 7, 2007, but these checks were not tendered to the landlord until after the eviction. Following his eviction, respondent petitioned the Court for immediate access to the apartment to retrieve his medications. He was provided access to the apartment on May 11, approximately three and one-half hours after the marshal took possession of the apartment on petitioner's behalf. Upon entering the apartment, respondent found that the landlord had been there before him and had smashed the toilet into pieces, had destroyed the sink in the bathroom and the stove in the kitchen, and had ripped off the doors to the cabinets and to the refrigerator.
On May 15, the return date of his OSC, respondent, now represented by counsel for the first time, argued that his default on the stipulation was de minimis as well as inadvertent and that he should be restored to possession of the apartment. After inquiry into all relevant facts, the Court agreed with respondent and restored him to the apartment conditioned upon him paying reasonable attorney and marshal fees. Respondent was to pay the fees by May 22, 2007.
Respondent timely tendered the fees but despite his compliance with the Court's order, he was unable to re-occupy the apartment. Respondent filed an OSC dated June 7, 2007 in the HP Part, seeking to compel petitioner to complete repairs in the apartment that would permit him to move back in.
On June 15, 2007, the return date of the OSC, petitioner argued that he should not be compelled to do repairs without some guarantee that respondent would be forced to pay for them. Petitioner estimated the repairs would cost $20,400 and sought a 1/40th increase on the basis of this number. As respondent lives on a fixed income, it is self evident respondent is unable to consent to such an increase.
It is important to note that subsequent to the eviction, contractors began renovating the premises, and these alleged renovations were undertaken in good faith. Petitioner claims that by the time the Court ordered respondent restored to the premises, the renovations were well under way as the contractors had dismantled and had begun remodeling the apartment. This demolition work began no more than two hours after the May 11th eviction.
In reality, in the three and one-half hours between respondent's eviction and his limited access to the apartment, petitioner gained access to the apartment, committed the acts detailed above and bent the faucet on the sink backwards to prevent the flow of water (See: Exhibit A of respondent's opposition showing pictures of the apartment). What petitioner is calling "renovation" and "remodeling" in his cross-motion was nothing less than the destruction of essential facilities in the apartment possibly calculated to render the apartment uninhabitable in the event that respondent was restored to possession. On July 16, 2007 the parties entered into an agreement settling the HP proceeding commenced on June 7th. The agreement obligated petitioner to make all necessary repairs that would render the apartment habitable and free from any violations. As a result of the complete lack of essential services on May 22, respondent was forced to live in transitional housing provided by the Church Avenue Merchants Business Association for two months after gaining legal possession of the apartment.
Legal Analysis
Petitioner asserts that the grounds for restoring the tenant to possession should be confined to those subdivisions stated in CPLR § 5015. The Court disagrees. Restoration to the subject premises should be assessed and determined on the merits of each case and not so narrowly construed that justice and equity are relegated to the back burner. In the case at bar, there was a mere $499 due in arrears. Through no fault of his own, respondent was legally evicted from the premises. It is clear that the DSS check was dated prior to respondent's lawful eviction, and the evidence showed that respondent's social worker, Jill Shuler, attempted to persuade DSS to release the checks to petitioner. For some unknown reason the DSS checks were not delivered on time and consequently respondent was evicted. Had the DSS checks been timely released, the eviction would not have taken place.
Respondent was restored to possession on the condition that he tender $2074.19 to petitioner on or before May 22, 2007, which was done. That amount reflected the $499.19 for arrears through May 2007 as evidenced by petitioner's billing statement. What is apparent is that petitioner precipitously engaged demolition contractors only hours after the eviction. Petitioner's actions clearly evince an intent to thwart respondent's possible right to restoration to the premises.
Contrary to petitioner's assertion this Court did not misapprehend the facts or misapply the law. Circumstances were present which warranted restoration of the respondent to his apartment. In Parkchester Apartments Co. V. St Clair Scott, 271 AD2d 273, the Appellate Division held that the tenant deserved restoration even after the warrant of eviction had executed in light of many factors inuring to tenant's benefit. The Court's power to restore a tenant to possession after an eviction far exceeds the narrow grounds of CPLR § 5015 (See also: Woodson v. Mendon Leasing Corp., 100 NY2d 62). In the Matter of Dayton Towers Corp. v. Gethers , 24 AD3d 663, the Appellate Division, Second Department reversed the Appellate Term and reinstated the lower court's decision which denied restoration. In that case the Appellate Division found ruled that the Appellate Term improvidently exercised its discretion in restoring the respondent to possession. No factors recited in the Appellate Division decision are present here. Moreover, respondent has voluntarily taken steps to enroll in a financial management program to obviate another nonpayment proceeding.
In Ocean Realty v. Mitchell, NYLJ, May 22, 1995, p. 30, col. 1, and Theresa 157 Corp. v. Mitchell, NYLJ, July 12, 1994 (App. Term 2nd and 11th Jud. Dists.), the Appellate Term demonstrated its willingness to depart from the strict confines of CPLR 5015 by exercising its discretionary power to restore a tenant after an eviction for good cause, ruling the tenant's default had been de minimis, inadvertent and promptly cured (See also: 102-111 Eighth Avenue Assoc. v. Oyola, 299 AD2d 296).
In the instant proceeding, the error committed by DSS was addressed and cured promptly, Aston-Jones Mgt. v. Brown, 2005 Slip O; 51891[U]).). In an unpublished Appellate Term, Second Department decision, 2285 Ocean Associates v. Marina Shalyakhova and Natalya Shalyakhova, No. 2005-1631, the lower court's decision was affirmed, the Appellate Term stating: "The brief delay in proferring the entire amount due under the stipulation of settlement resulted from agency error, since the agency mistakenly denied Tenant's application for assistance. Hence, it would be unjust and inequitable to strictly enforce the terms of the stipulation." (See: Moshe Realty LLC v. Grant, 10 Misc 3d 127 A, 2005 NY Slip Op 51899[U], App. Term 2nd and 11th Jud. Dists; 1466 Gunhill Rd. Corp. v. Andrew, 4 Misc 3d 128 A, 2004 NY Slip Op 50626 [U], App. Term 1st Dept.; see generally, Malvin v. Schwartz, 65 AD2d 769, aff'd 48 NY2d 693).
In 603-607 Realty Assoc. v. Gachelin, 2003 WL 21704407, 2003 Slip Op. 51105U, App. Term 2nd and 11th Jud. Dists., the Appellate court found no basis to restore the tenant to possession, ruling that the tenant's default was neither de minimis, inadvertent nor promptly cured. The elements cited there are present in this proceeding. The $499.19 missed payment herein was not the result of respondent's neglect. DSS, not the tenant, was responsible for that de minimis payment. Was failure to make the payment remedied promptly? The Court responds in the affirmative. Voluntary enrollment in the financial management program should help ensure that no the problem will not recur (See also: Kew Gardens Assoc. LLC v. Ruvio, NYLJ, December 8, 2004, p. 20, col. 3.
The Court declines to grant an award of costs or rent increase for restoring the premises.
The parties settled this matter through the HP action and petitioner's agents are required by law to fulfill their legal obligation. Contrary to petitioner's position, no vacancy exists in this case since respondent has lived in the apartment through multiple lease renewals (See: Linden v. DHCR, 217 AD2d 407). Respondent is not a new tenant there was an eviction and this Court restored him to possession. Simply stated, the Court restored him to his former tenancy which was in existence prior to the eviction.
Conclusion
Based upon the foregoing discussion, the Court denies petitioner's cross-motion for reargument in its entirety. This constitutes the decision and order of the Court.