RECITATION, PURSUANT TO CPLR §2219(a), OF THE PAPERS CONSIDERED IN REVIEW OF RESPONDENT’S ORDER TO SHOW CAUSE TO BE RESTORED TO POSSESSION.PAPERS NUMBEREDNOTICE OF MOTION & AFFIDAVITS ANNEXEDNOTICE OF X-MOTION & AFFIDAVITS ANNEXEDORDER TO SHOW CAUSE & AFFIDS. ANNEXED 1ANSWERING AFFIDAVITS TO MOT. 2REPLYING AFFIDAVITSEXHIBITSSTIPULATIONSDECISION/ORDER Petitioner commenced this summary nonpayment proceeding to recover rent arrears due and owing for the subject premises located at apartment 1 H at 137-75 Geranium Avenue, Queens, New York from respondent Matthew Kushnick.Respondent moves pursuant to CPLR §2221 to renew and reargue this court’s decision dated May 28, 2019, and upon reargument and renewal, staying re-letting of the premises to permit respondent to tender all monies due to petitioner to satisfy the judgment and restoring respondent to possession of the premises.A motion to reargue, addressed to the court’s discretion, allows the moving party to establish that the court, in issuing its prior order, overlooked relevant facts or misapplied controlling principles of law. Foley v. Roche, 68 A.D.2d 558, 561, 418 N.Y.S.2d 588 (1st Dept. 1979).Previously, respondent filed an order to show cause on December 12, 2018 seeking to stay the execution of the warrant of eviction and to request repairs for conditions existing in his apartment. This matter was returnable on December 19, 2018 and subsequently adjourned to January 23, 2019 on which date respondent defaulted.Respondent filed another order to show cause on January 23, 2019 explaining that he checked in on time, but because there was no room in the courtroom to sit or stand, he waited in the hallway outside of the courtroom and did not hear anyone call his name.After several adjournments to resolve the disputed amount of arrears, on April 1, 2019, respondent’s order to show cause was granted staying execution of the warrant of eviction through April 30, 2019 for respondent to pay $5, 440.71 due through April, 2019. At that time, respondent proffered a letter from Catholic Charities indicating that he was eligible for financial assistance. Respondent also represented that he was eligible for SEPS. Petitioner agreed to address the HPD violations issued on March 22, 2019 on April 10-12, 2019. The access dates were without prejudice to respondent’s pending HP action.Respondent filed another order to show cause on May 15, 2019 and the court denied his request with leave to renew upon proof of an approval for the arrears due to date. Respondent appealed the court’s denial and, on the same day, the Appellate Term granted his application pursuant to CPLR §5704(b). Respondent however did not return to the courthouse in time and therefore was unable to pick up the signed order to show cause to serve upon the court, petitioner and the marshal. On May 16, 2019 at 8:45 AM, respondent was evicted from his home of 35 years.On May 20, 2019, respondent’s post-eviction order to show cause was denied as he failed to show an immediate ability to pay the $9, 314.79 due (comprising $6, 086.41 in rent arrears and $3, 228.38 in legal and marshal fees). Respondent alleged that he had $3, 500.00 in court and that he had retained Queens Legal Services to assist him in securing a one shot deal for the remaining balance. However, respondent did not tender said funds and the one shot deal was still pending. In view of the foregoing, but in light of the long-term nature of the rent-stabilized tenancy (35 years) and in the interests of justice, re-letting and removal of respondent’s possessions were stayed through May 28, 2019 for respondent to vacate with dignity or to obtain an approval and pay the arrears and fees due to date. The court noted that respondent’s rent was $848.04 per month.On May 28, 2019, respondent, now represented by counsel, moved to be restored to possession based on a one shot deal approval for $9, 314.79. Respondent’s second post-eviction order to show cause was denied as there was no indication that checks for the entire arrears and legal and marshal fees totaling $9, 314. 79 were immediately available to tender to petitioner. The approval proffered appeared only to be a conditional approval for $9, 314.79 and subject to “active status or [if respondent was] otherwise found eligible for assistance.” No other arguments were considered at that time. In the interests of justice, re-letting and removal of property were stayed through May 31, 2019 for respondent to vacate with dignity.Respondent now moves to reargue the court’s decision and order of May 28, 2019 and states that he in fact had funds totaling $9, 314.79 available in court to tender on May 28, 2019. Respondent’s counsel maintains that she personally went to the DSS office on May 23, 2019 to pick up the checks and that she had them in her possession on May 28, 2019, but did not know she had to physically present the checks. Respondent now shows in court a total of $ 12, 814.79 representing $9, 314.79 in DSS checks and $3, 500.00 in certified funds from respondent.In support of his motion, respondent stated that he originally sought legal counsel to assist him with obtaining the rental arrears, but was informed that as he did not live in the “Universal Access to Counsel Program” zip codes, he was ineligible for counsel. Respondent states that he applied for assistance in mid-March, 2019, and he went to Catholic Charities on multiple occasions asking for an update. Respondent states that Catholic Charities repeatedly told him that they were working on his application and finally that they would notify respondent once they received an approval. At his request, respondent was given another letter from Catholic Charities on May 14, 2019 stating that he was found eligible for services from Homebase and that he was being assisted with applying for an Exception to Policy through HRA to pay the arrears. Respondent also represented that he was withholding the rent due to conditions existing in the apartment. Per the HPD report dated March 22, 2019, 14 violations were issued — one class A violation, 12 class B violations, and one class C violation for defective window guard(s). It is unclear whether these violations have been corrected and/or certified as corrected as of yet.Petitioner opposes restoration and states that $12, 525.55 is due in rent arrears and fees through June 3, 2019. Petitioner argues that respondent has had prior housing proceedings and deliberately waited until the eve of the eviction before filing an order to show cause to stay the eviction. Petitioner also asserts that the availability of funds after the eviction does not comprise the necessary appropriate circumstances and/or good cause to restore respondent to possession.Respondent’s motion to reargue is granted as the court overlooked the fact that respondent had in fact all of the outstanding arrears and fees in court on the May 28, 2019 court date. Upon reargument, the court modifies its order and grants respondent’s post-eviction motion. Specifically, the court restores respondent based on the following factors: that respondent, who is disabled, has lived in the subject rent-stabilized apartment for 35 years; the rent is affordable (respondent’s monthly share is $645.76 and public assistance pays $215 monthly); respondent is able to pay ongoing rent to petitioner; respondent diligently attempted to secure assistance with the arrears and was repeatedly told that he needed to wait for a response; respondent was unable to secure legal representation at the outset of the proceeding, but was able to secure all of the arrears after he obtained legal counsel (albeit post-eviction); there are 14 HMC violations in the premises (one “C,” 12 “B,” and one “A”); and that respondent now has all of the arrears including legal and marshal fees to tender to petitioner immediately. These factors taken together warrant restoration of this long-term, rent-stabilized, disabled tenant to the premises.Accordingly, respondent’s motion for reargument is granted and, upon reargument, the court modifies its prior order as set forth herein. Respondent is directed to tender $12, 525.55 (representing $6, 947.17 in rent arrears due through June 30, 2019 at $860. 76 per month plus $5, 578.38 in legal and marshal fees to date) to petitioner immediately. Upon tender, respondent shall be restored to possession forthwith.This constitutes the decision and order of this Court.Dated: June 4, 2019Queens, New York
