Decision and Order Procedural History On November 19, 2018, petitioner prepared a non-payment petition with the L&T Index No. 813247/18, the first case. Petitioner sought rent from August 2018 through November 2018. On February 19, 2019, the parties entered into an agreement with a final judgment for rents from October 2018 through February 2019. Respondent agreed to pay the arrears plus current rent on or before April 5, 2019. On March 28, 2019, petitioner prepared a second non-payment petition, L&T Index No. 804812/19. It sought rent from December 2018 to March 2019. In early June 2019, respondent was served with a notice of eviction under the first case. Respondent came court and filed an Order to Show Cause. The Order to Show Cause was calendared for June 20, 2019. Respondent answered the second case and it was calendared for June 20, 2019. Both cases were on the calendar on the same day and time. On June 20, 2019, respondent’s order to show cause in the first case L&T Index No.813247/18, was granted. The Decision/Order provides: Warrant Vacated. Case restored to [the] calendar July 31, 2019 at 9:30 AM On the same day, the second case L&T Index No. 804812/19, was adjourned to July 31, 2019. The Court gave notice that on the adjourned date the Court would address overlapping rents in two non-payment cases and consider the imposition of sanctions. Hearing on July 31, 2019 On July 31, 2019, the parties appeared and were sworn in. The hearing ensued to address why the second petition was filed seeking rents contained in the agreement in the first case. In the first case, petitioner had a money judgment for rents from October 2018 through February 2019. On or about April 12, 2019, petitioner obtained a warrant of eviction. During the hearing, petitioner’s counsel argued that the second petition was filed by mistake due to “law office failure.” Denise Julies, the Manager at Castle Hill Houses, testified for petitioner. She stated that someone had canceled the first case and that is why petitioner issued the second non-payment petition. Petitioner’s witness could not identify who “canceled” the first case other than “someone.” The witness stated that the manager, the assistant manager, and the housing assistants all have access and privileges to enter “cancel” on a case and then generate a new non-payment petition. In this matter, however, no one was “accountable.” Petitioner offered respondent a rent credit of $974.00 to be credited to respondent’s rental account in resolution of these two overlapping non-payment cases. This offer was accepted. Respondent testified that she was still waiting for her lease renewal and to the best of her knowledge she had submitted all the required documents. Respondent testified that on several occasions she had visited the management office to obtain an update on her rent adjustment request and her lease renewal. Respondent testified that she would like to have her lease renewal and her rent adjusted based upon the documents she submitted. She does not want to be in court. Respondent stated that she has lived in the apartment for 23 years. She never had this lease renewal problem. Petitioner’s housing assistant, Oletha Heath, stated that they were “short staffed.” The parties agreed to meet on August 7, 2019 to resolve the lease renewal and the rent adjustment. During the hearing respondent stated that she recently received a notice of eviction. She did not understand why the notice of eviction was given to her since she was in court. She was making payments and trying to resolve the lease renewal issue. An examination of the notice of eviction indicated that it was issued under the first case and dated July 26, 2019. The Court had vacated the warrant of eviction on June 20, 2019, and, as such, there was no legal basis to issue a notice of eviction. Petitioner’s counsel was directed to contact the marshal’s office to inform the marshal that the warrant was vacated as of June 20, 2019. The hearing resumed, and Ms. Julies testified that she personally notified the marshal and asked to issue the notice of eviction. Upon further inquiry, Ms. Julies stated that an email was sent to the marshal. Petitioner was directed to produce a copy of the email, but she did not do so. Discussion: I. Petitions Seeking Overlapping Rents: This Court finds that petitioner commenced the second non-payment case without a legal basis. When the second case was filed, petitioner already had a judgment for the rents sought in the second case. The Court finds that the petitioner cannot rely upon the theory of a “law office failure” to excuse the filing of more than one petition seeking overlapping rents. The concept of “law office failure” is generally invoked to address an unintentional default that is explained by a clerical error or a transposition of a number. See. CPLR § 2005 Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interest of justice to excuse delay or default resulting from law office failure. Petitioner cannot rely upon “law office failure” to explain commencing a second non-payment petition several months after obtaining a judgment and immediately after a warrant of eviction has issued The issue of overlapping rent was addressed by this Court on numerous occasions. See, NYCHA v. Various Tenants, 60 Misc. 3d 1210(A) (Civil Court, Bx Co 2018.) Other courts have also addressed the issue of multiple cases seeking overlapping rents.1 Despite previous hearings regarding petitions seeking overlapping rents2, it seems that there are no effective steps in place to prevent the filing of multiple non-payment cases seeking the same rents. Petitioner does not have an explanation nor plan to ensure that respondents are not placed at risk of unlawful eviction when numerous cases are filed seeking overlapping rents. The cases seeking overlapping rents lack a reasonable inquiry. (See, Rules of the Chief Administrator Part 130). 22 NYCRR §130-1.1a(b) states: By signing a paper, an attorney or party certifies that, to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances (1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart. A reasonable inquiry would have disclosed that the rents sought in petitioner’s second case were already included in the judgment obtained in the first case. Seeking duplicative judgments for the same rents demonstrates a lack of reasonable inquiry and as such, frivolous. The filing of multiple cases for overlapping rents creates uncertainty and confusion. Which warrant is to be stayed upon showing good cause may not be obvious to the litigant, the attorney or the court. Had respondent forgotten to mention the notice of eviction dated July 26, 2019, she would have been subjected to an unlawful eviction. The uncertainty and confusion arose precisely because two cases were filed. The notice of eviction of July 26, 2019 was unlawful because the warrant was vacated pursuant to the Decision/Order of June 20, 2019. II Service of Notice of Eviction: The potential for unlawful eviction was compounded when respondent revealed that a notice of eviction was issued in the first case even though the warrant was vacated. Petitioner did not disclose that the manager had requested that the marshal send a notice of eviction after the warrant had been vacated. If respondent did not mention that a notice of eviction was served on her, the marshal could have gone through with the eviction. If respondent had not looked inside her bag during the hearing, an unlawful eviction might have occurred. The manager claimed that she was not aware of the Decision/Order of June 20, 2019. Her claim lacks credibility. Petitioner’s counsel was in court on June 20, 2019 when the warrant of eviction was vacated. Counsel’s appearance for the petitioner imputes knowledge of the court’s Decision/Order on petitioner. Further, the case was restored to July 31, 2019 for a hearing. An eviction could not be scheduled if the case was scheduled for a hearing.3 Petitioner’s request to the marshal to issue a notice of eviction after the warrant was vacate is frivolous conduct which can result in an unlawful eviction. Conclusion: 22 NYCRR 130-1.1 allows the court, in its discretion, to award to any party in any civil action…costs in the form of reimbursement of actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this part. Costs and/or sanctions can be imposed upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case. 22 NYCRR 130-1.1d 22 NYCRR 130-1.1(b) states: By signing a paper, an attorney or party certifies that, to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances (1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this subpart. Frivolous conduct is defined in §130-1.1(c)(1) as conduct completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. The appropriate remedy depends upon the facts and circumstances. In Ruffalo v. Ackerman, 2014 NY Slip Op 51744(U) decided December 12, 2014, the court imposed costs on plaintiff of $250.00 because of plaintiff’s submission of inappropriate pleadings produced a “colossal waste of time” and expense to defendant and the court. The costs “failed to deter plaintiff from engaging in his frivolous conduct so the court now grants defendants the sum of $1,000.00 for the costs of the motion…” The parties were on notice that the case was calendared for a hearing to determine whether the imposition of sanctions is proper. Based on the evidence presented, the testimony and the demeanor of the parties, the Court finds that the imposition of sanctions is proper. Petitioner clearly violated a court order. Petitioner offered, and respondent accepted, a rent credit of $974.00 for seeking overlapping rents in two different petitions. The Court accepts the sum of $974.00 agreed upon by the parties offered in consideration for commencing two petitions seeking overlapping rents. The Court finds that petitioner failed to notify the marshal of the Decision/Order of June 20, 2019. It was contrary to law for the notice of eviction to issue after the warrant was vacated. The manager’s claim that she was not aware that the warrant was vacated is unavailing. Petitioner was represented by counsel on June 20, 2019. Counsel was aware that the warrant was vacated. Furthermore, it is incredible that someone “canceled” the first case, and then the manager herself requested that the marshal issue a notice of eviction on the “canceled” case. The Court sanctions the petitioner a sum of $50.00 per day, commencing one day after the Decision/Order of June 20, 2019, and every day that petitioner did not notify the marshal that the warrant was vacated. The sanction period is from June 21, 2019 through July 31, 2019 when the marshal’s office was informed during the hearing that the warrant was vacated. It is ORDERED that petitioner credit respondent’s rental account $2,050.00 ($50 per day x 41 days) plus $974.00, offered and accepted, for a total sum of $3,024.00. This amount is to be credited to respondent’s rental account forthwith. It is further ORDERED that the two non-payment proceedings are dismissed with prejudice. This Decision/Order is being mailed to both sides. This constitutes the Decision/Order of this Court. So Ordered. Dated: August 16, 2019 Bronx, New York
