Opinion
Index No. L&T XXXXXX/23
07-22-2024
Woodhull Park 191 LLC, Petitioner, v. W.M., "JOHN DOE", "JANE DOE", K.M., K.M., Respondents.
Michael R. Cohen, Esq. Green & Cohen, P.C. New York, NY Attorneys for petitioner Dustin T. Pangonis, Esq. Queens Legal Services Jamaica, NY Attorneys for respondent
Unpublished Opinion
Michael R. Cohen, Esq.
Green & Cohen, P.C.
New York, NY
Attorneys for petitioner
Dustin T. Pangonis, Esq.
Queens Legal Services
Jamaica, NY
Attorneys for respondent
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's order to show cause deemed to seek vacatur of the default judgment:
Papers Numbered
Order to Show Cause & All Documents Annexed 1 (NYSCEF#25)
Supplemental Affirmation & All Documents Annexed 2 (NYSCEF #28-32)
Affidavit in Support (Opposition) & All Documents Annexed 3 (NYSCEF #33-34)
Upon the foregoing cited papers, the decision and order on respondent's order to show cause is as follows.
PROCEDURAL HISTORY
This "illegal sublet" holdover proceeding involving a rent-stabilized apartment was commenced in April 2023. In August 2023, petitioner made a motion to vacate the stay occasioned by an ERAP (Emergency Rental Assistance Program) application. The motion was granted on default on October 26, 2023. After additional adjournments, the court (Logan J. Schiff, J.) conducted an inquest on default on January 30, 2024.
The court notes that the court's UCMS system contains a notation that the motion was granted, although the order does not appear on NYSCEF.
On February 2, 2024, Judge Schiff rendered a Decision/Order after inquest that awarded petitioner a judgment of possession against all respondents and stayed issuance of the warrant 30 days to permit respondent W.M. (hereinafter "respondent") to cure the conduct alleged in the petition pursuant to RPAPL §753(4). Thereafter, on March 25, 2024, respondent filed a pro so order to show cause. On the return date, May 9, 2024, respondent failed to appear and the order to show cause was denied upon the non-appearance. Respondent then filed a second order to show cause on March 28, 2024. Prior to the June 5, 2024 return date, counsel appeared for respondent. On June 5, 2024, the court adjourned the order to show cause to July 17, 2024 permit supplemental affirmation and opposition papers to be filed. On July 17, 2024, the court heard argument on the order to show cause, deemed to be for the vacatur of the default judgment upon the supplemental papers, and reserved decision.
Respondent, through counsel, filed reply papers but the court did not permit a reply in its June 5, 2024 order and no reply is provided for in CPLR § 2214(d), which governs orders to show cause. Therefore, the court does not consider the Reply Affirmation (NYSCEF Doc. 35) in deciding this order to show cause.
DISCUSSION & CONCLUSION
CPLR § 5015(a)(1) provides that a court may relieve a party from a judgment upon the ground of "excusable default." A party seeking relief "must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action." Deutsche Bank Nat. Trust Co. v. Luden, 91 A.D.3d 701 [2d Dept 2012]; see also Pursoo v. Ngala-El, 89 A.D.3d 712 [2d Dept 2011]; Parker v. City of New York, 272 A.D.2d 310 [2d Dept 2000]. The determination of whether there is a reasonable excuse is "based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits." Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876-877 [2d Dept 2005]; see also Lakeview Affordable Hous., LLC v. Turner, 66 Misc.3d 142 [A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]. Ultimately, "[t]he determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court." Logan v. 250 Pac., LLC, 210 A.D.3d 1064, 1066 [2d Dept 2022].
Respondent asserts in her affirmation that she did not appear prior to the entry of the default judgment because of health difficulties, including limited mobility, depression, and anxiety, as well as confusion engendered by the concurrent existence of nonpayment and holdover proceedings against her. To substantiate the alleged confusion, respondent annexes orders to show cause filed in this proceeding and in the nonpayment proceeding (L&T 308183/21), wherein she raised issues in each that were relevant to the opposite proceeding. Respondent also makes reference to her 50-year tenancy in this rent-stabilized apartment and her efforts to vacate the default judgment once she became aware of it. In response, petitioner argues that respondents' references to mental health issues are not documented and that respondent's claims of confusion are not credible since she has not asked for assistance via Adult Protective Services (APS) or a guardian ad litem (GAL).
Based upon the court's consideration of "all relevant factors" (Harcztark, 21 A.D.3d at 876) here, the court finds that respondent has demonstrated a reasonable excuse for her failure to appear. Respondent credibly describes the progression of her depression and anxiety, especially after her daughter died in 2020, and how it impacted her ability to participate and defend herself, notwithstanding the lack of medical documentation. Additionally, her confusion about the two proceedings pending against her is given credence by her mistaken focus on rent issues in this proceeding and refutation of the sublet allegations in the nonpayment proceeding in the respective orders to show cause that are annexed as Exhibits A and B to the supplemental affirmation. The court also does not find any willfulness in respondent's default. Respondent asserts that she has lived in the subject rent-stabilized apartment for 50 years, which petitioner does not refute. The actions taken by respondent after default to protect her rights, including by filing multiple orders to show cause and retaining counsel, manifest an earnest attempt to maintain her rent-stabilized tenancy. The Court of Appeals has recognized that rent-stabilized housing is a public assistance benefit that "provides assistance to a specific segment of the population that could not afford to live in New York City without a rent regulatory scheme." Matter of Santiago-Monteverde, 24 N.Y.3d 283, 290 [2014]. Finally, to the extent that there was any delay in respondent seeking to vacate the default judgment (which, the court notes, was considerably less than the one year allowed for vacatur under CPLR § 5015(a)(1)), any prejudice to petitioner is outweighed by the public policy in favor of resolving cases on the merits, particularly here, where a substantial benefit (Matter of Santiago-Monteverde, 24 N.Y.3d at 290) is at stake.
The court notes that the petition in L&T 308183/21 and the breakdown annexed to the petition herein describe respondent as having received DRIE (Disability Rent Increase Exemption) benefits. According to the City of New York's ACCESS NYC webpage, only individuals receiving SSI (Supplemental Security Income), SSDI (Social Security Disability Insurance), Veterans Affairs disability pensions or compensation, or disability-related Medicaid qualify for DRIE Benefits (available at https://access.nyc.gov/programs/disability-rent-increase-exemption-drie/#determine-your-eligibility [last accessed July 19, 2024]). Thus, the court can infer that a governmental agency has determined that respondent is disabled.
As for a potentially meritorious defense, respondent states in her affirmation that only she and her 22-year-old granddaughter live in the subject apartment. She denies that anyone other than her or family members, namely her daughter and granddaughter, have resided in the apartment and asserts that she never sublet the apartment to anyone. She also acknowledges that while she visited her cousin, with whom she had a close relationship, in South Carolina, she has not visited since March 2022, shortly after her cousin died. She maintains that only the subject apartment has been her primary residence. Petitioner attempts to refute these assertions through an affidavit of Mervyn Phillip, building superintendent from 2012 through March 2023. He states that he visited the subject apartment on least six (6) occasions in 2022 and 2023, and observed individuals other than respondent, some of whom were male, living in the subject apartment.
On a CPLR § 5015(a)(1) motion, only a potentially meritorious defense must be shown (see Pennymac Corp. v. Shelby, 190 A.D.3d 759, 760-761 [2d Dept 2021]). Respondent unequivocally states that only she, her daughter, and granddaughter have resided in the apartment and that she has not sublet it. As Judge Schiff observed in his inquest decision, the Appellate Term, Second Department has held that an illegal sublet proceeding cannot be maintained when close family members are the alleged sublessees (see 901 Bklyn Realty, LLC v. Woods-Najac, 65 Misc.3d 158 [A], 2019 NY Slip Op 51976[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). While Mr. Phillip's affidavit challenges respondent's assertions as to who was residing in the subject apartment during the relevant period, this only reveals issues of material fact in dispute; it does not defeat respondent's potential defense of the lack of an illegal subject as a matter of law. Moreover, Mr. Phillip's affidavit states that he was superintendent through March 2023; thus, his statements do not foreclose the possibility that respondent cured the alleged conduct before the commencement of this proceeding or would be entitled to a cure of the allegations pursuant to RPAPL §753(4). Accordingly, respondent has set forth potentially meritorious defenses in this holdover proceeding.
For the foregoing reasons, respondent's order to show cause is granted and the default judgment and warrant are vacated pursuant to CPLR § 5015(a)(1). Respondents shall be permitted to interpose an answer no later than August 8, 2024. The proceeding will be restored for all purposes, including trial transfer, on August 21, 2024 at 9:30 AM, Part B, Room 403. This Decision/Order will be filed to NYSCEF.