Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.PapersOrder to Show Cause, Exhibits 1Affirmation and Affidavits in Opposition, Exhibits 2DECISION/ORDER Upon the foregoing citing papers, the Decision and Order on this Motion are as follows:In this residential nonpayment of rent matter, respondent moves after eviction on December 13, 2017 to be restored to possession.1 Respondent indicated that she had an ability to pay all monies owed with the assistance of Homebase.2 During a conference on January 9, 2018 petitioner’s counsel indicated that the apartment had been leased to another tenant. The Court scheduled a hearing on January 25, 2018 to determine whether the apartment had been conveyed to a new tenant during a lapse of the Court’s stay on renting the apartment to another tenant. In addition, the Court was to determine whether any of the equitable factors necessary to restore the respondent to possession were present. After the hearing, the Court reserved decision.3 The Court finds for the respondent and Orders her restored to possession upon payment of all rent and fees owed within 14 days after the issuance of this decision and Order.The HearingIn support of the contention that the apartment had been rented to another party, the Court took notice of the signed Order to Show Cause which stayed re-letting of the subject premises until December 29, 2017. The petitioner offered the testimony of Edwin Delgado as the new tenant of the subject premises. Mr. Delgado testified that he had been looking for an apartment for several months and first met with the petitioner’s agents in late October or early November. He indicated that he received a call from petitioner’s agent on December 29, 2017 stating that an apartment was available and he visited the petitioner’s office on December 30, 2017. During the December 30, 2017 visit Mr. Delgado indicated that he signed the lease that was introduced into evidence as Exhibit 2. Mr. Delgado indicated that he did not see the apartment but made his choice based upon the quality of the building, the neighborhood and the spaciousness of the apartment.On cross examination Mr. Delgado was unable to identify the employee of petitioner he spoke with on December 29, 2017. Mr. Delgado agreed with respondent’s attorney that his signature on the lease was undated. Mr. Delgado indicated that he was told he could move into the apartment on January 1, 2018. Mr. Delgado indicated petitioner’s agent attributed the delay to repairs to be performed on the subject premises and that he was unaware of the pending litigation or that the respondent’s possessions were still in the apartment. Mr. Delgado indicates he currently lives with friends who permit him to remain until he can obtain possession of the subject premises.Petitioner next called Diana Cordero who identified herself as an employee of Casa Blanca, petitioner’s management company for the subject premises. Ms. Cordero testified her duties included the review of tenant accounts and legal obligations. Ms. Cordero further indicated that Ms. Paschall was in default at the time of her eviction as she failed to make a payment of $3,207.804 by December 29, 2017. Ms. Cordero next testified as to the procedures that would have been undertaken to provide an apartment to Mr. Delgado but for reasons stated below, the Court provided no weight to this portion of her testimony.On cross examination Ms. Cordero admitted that she was not present on December 29, 2017 for Mr. Delgado’s interview, she could not identify Mr. Delgado’s signature and that she had no explanation for the absence of a date in the signature block of the lease. Ms. Cordero testified that her duties did not include the application process for new tenants as well. This witness closed the petitioner’s case.Respondent’s testified in support of her motion. She indicated that she had lived at the subject premises for 10 years. She lived at the subject premises with her four sons, 12-year-old twins, 10 and 7 years old. She indicates she suffers from depression (not clinically diagnosed or treated) after the death of her mother and constant problems maintaining her public assistance cases. Respondent also testified as to the catastrophic impact her eviction would cause as her children as they receive services for their disabilities and education locally.Respondent’s testimony was that her long running nonpayment case5 was on the verge of resolution. Based upon her conversations with Homebase employees she believed that she owed about $10,000.00 and in November 2017 she received a grant of $8,761.74 leaving a balance of $1,131.40. By December Ms. Paschall testified she knew she owed approximately $2,000.00 and she believed that she would receive the rest by a grant based upon assurances from her caseworker from Homebase.Continuing her direct testimony Ms. Paschall testified that on December 27, 2017 she received a message from her Homebase case worker indicating that the monies were ready to be tendered. Despite her best efforts she was unable to have Homebase, DSS or anyone else to tender the monies she owed. On December 29, 2017 Ms. Paschall testified that she did not renew the Order to Show Cause as she had not received documentary proof of her rental arrears award.On cross examination petitioner elicited testimony from Ms. Paschall that she understood the apartment could be given to another tenant based upon her failure to make payment on December 29, 2017. Ms. Paschall indicated she had previous nonpayment of rent cases and that she was fully aware that she could be evicted. Ms. Paschall acknowledged that she knew her rights to the subject could be premises permanently extinguished by her default on December 29, 2017 and that her remedy was to obtain a stay of re-letting through the grant of an Order to Show Cause.The final witness was Israel Figueroa, an employee of the New York City Department of Social Services. Mr. Figueroa testified that among his duties is to track rental arrears payments on behalf of tenants. Mr. Figueroa’s testimony was that $3,087.00 was available to pay Ms. Paschall’s rental arrears. Petitioner on cross examination challenged the basis of Mr. Figueroa’s knowledge as well as impeached the image of checks being admitted without appropriate foundation.Applicable Law and DiscussionThe Court of Appeals has held that this Court has the authority to grant the tenant’s post-eviction motion (see Matter of Brusco v. Braun, 84 NY2d 674, 682, 645 NE2d 724, 621 NYS2d 291 [1994]; see also Parkchester Apts. Co. v. Scott, 271 AD2d 273, 273, 707 NYS2d 55 [1st Dept 2000]). “[T]he Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed” Brusco, 84 NY2d at 682; see also Harvey 1390 LLC v. Bodenheim, 96 AD3d 664, 948 NYS2d 32 [1st Dept 2012]. So, while the statute (RPAPL 749 (3) may not give the Civil Court the authority to vacate an already-executed warrant of eviction, case law provides that authority. Matter of Lafayette Boynton Hsg. Corp. v. Pickett, 135 AD3d 518, 522 [1st Dept 2016]. Particularly in a case where the tenant has been diligent about obtaining payment of rental arrears from an unresponsive bureaucracy the post eviction motion may be granted.6While a new “tenant” such as Mr. Delgado must be considered when considering restoration of the evicted tenant, the claim is not dispositive. The presence of a new tenant who has contracted with the petitioner for the subject premises does not automatically provide a basis to deny restoration.7As a preliminary matter, petitioner’s counsel vigorously objected to the respondent’s testimony as to her state of mind, her depression, the impact that eviction would have upon her family and her family composition. As respondent only provided a pro se Order to Show Cause in which these matters were not addressed, petitioner contended that they received no notice of the defense and the Court’s admission of this testimony was improper.8 The motion is denied. In addition to the Court’s obligation to weigh equities in cases of restoration after eviction, the respondent’s evocation of “any other relief as the Court may determine” clearly provide the avenue to address these issues.DecisionThis is clearly a case where Ms. Paschall has been the victim of administrative failures and delays by the Department of Social Services (DSS) and their agents. The Court notes the payment of $8,761.74 towards the obligation that the respondent had to pay $9,893.14 to avoid eviction. Given this payment, the Court concludes that it was the intent of DSS to pay the rental arrears but that the remaining balance was left due to bureaucratic error. In addition, the testimony of Mr. Figueroa indicated that DSS was in the process of tendering the arrears. As petitioner noted and Ms. Paschall testified, part of the reason why she did not seek a further stay on December 29, 2017 was that her previous experience indicated she needed proof of the tendered or impending payment to have her motion granted. This failure by DSS and Homebase acting as DSS’s agent to support Ms. Paschall’s efforts to avoid eviction led directly to her homelessness. Agency failure of this type despite the tenant’s diligent efforts have consistently been held to excuse the tenant’s default in meeting her obligations.9The Court finds the testimony of Mr. Delgado difficult to accept. Mr. Delgado was to have entered a lease for an unseen apartment while relinquishing his current apartment over a holiday weekend. In addition, balancing the equities of Mr. Delgado’s tenuous connection by contracting for the apartment (without taking possession) versus Ms. Paschall’s ten-year tenancy favors the respondent.10 For these reasons petitioner’s claim as to Mr. Delgado’s possession of the apartment is denied. Respondent’s motion to be restored to possession is granted subject to the conditions below.During the hearing respondent’s witness and her attorneys’ arguments indicated alternatively that the monies were immediately available or committed to be available. As petitioner still has a claim of unpaid rent and fees11 the Court allows until March 7, 2018 for payment of all rent as well as legal, Marshall and locksmith fees.12 Upon payment in full the respondent will be restored to possession, upon default, all stays are vacated and petitioner may re-let.This is the decision of the Court and copies will be mailed to the attorneys for the parties, and made available in the Courtroom.Date: February 21, 2018
