Tenty Three One Nought W LLC v. Perez

Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion. Papers  Numbered Notice of Motion                1 Notice of Cross Motion and Affirmation in Opposition 2 Affirmation in Opposition and Reply              3 DECISION/ORDER   After oral argument held on August 23, 2019 and upon the foregoing cited papers, the decision and order on this motion is as follows: FACTUAL AND PROCEDURAL HISTORY This is a nonpayment proceeding commenced by Twenty Three One Nought W LLC (“Petitioner”) seeking possession of 2310 Walton Ave. Apt. 2D Bronx, NY 10468 (“the subject premises”) naming Mirfy Perez (“Respondent”) as the tenant of record. This matter first appeared on the court’s calendar on December 19, 2018 and Respondent retained counsel with Mobilization for Justice though the Universal Access to Justice program. Ultimately the parties settled by stipulation dated May 22, 2019 wherein $3,038 was acknowledged due through May 31, 2019. This amount, as noted in the agreement, credits $4,329 in DSS checks tendered in court.¹ Respondent agreed to pay $3,038 with June’s rent on or before June 28, 2019. Respondent alleged repairs needed in the apartment noting an “HPD violation report was provided,” and scheduled access for May 28-30, 2019. The parties stipulated that the repairs would be complete within 30 days of May 28, 2019. The default provision states, “Upon breach of either party, case may be restored to the calendar for appropriate relief including entry of a judgment upon eight days’ notice to opposing counsel.”² Petitioner thereafter filed a notice of motion seeking to restore the case to the court’s calendar and entry of a final judgment, alleging Respondent had breached the agreement by failing to make timely payment. Petitioner’s motion was originally returnable July 23, 2019, While Petitioner seeks entry of a final judgment for the monies due through July 2019, Respondent opposes the motion and argues that Petitioner frustrated Respondent’s efforts to obtain a “One Shot Deal” from the Human Resources Administration (“HRA”) by failing to timely cash the monies tendered in court on May 22, 2019. Petitioner argues that the case law cited by Respondent is inapplicable, and in any case, it had deposited the check with the bank on June 4, making Petitioner harmless for any further delay. These facts only appear in Petitioner’s attorney affirmation and are not sworn to by someone with personal knowledge.³ Petitioner’s rent breakdown and deposit slip submitted in reply dates the entries for the DSS checks at issue on June 4, 2019.⁴ Respondent additionally cross-moves for an order to correct several outstanding HPD violations. Petitioner opposes the cross-motion and asserts that because the stipulation of settlement did not condition payment upon repairs, an order to correct is not warranted. DISCUSSION The law requires strict construction of language in written instruments that could work a forfeiture. (Lerner v. Johnson 167 AD2d 372, 375, 561 NYS2d 601 [2nd Dept 1990]). Represented parties are at liberty to “chart their own litigation course.” (Trump v. Trump 179 AD2d 201, 204, 582 NYS2d 1008, 1009 [1st Dept. 2009]), Courts have refused to enter judgments after default where the parties’ stipulation has not specified such relief. (See Gloria Homes Apts LP v. Wilson 47 Misc3d 142[A] 17 NYS3d 382 [App Term, 1st Dept 2015] (“Manifestly, the stipulation at issue did not provide for a final judgment if the tenant breached any of its provisions”)). Still, where one party has frustrated the efforts of the opposing party to comply with an agreement’s terms courts have looked beyond the language of the parties’ stipulation. For example, in Dino Realty Corp v. Kahn, the Appellate Term upheld the Civil Court’s vacatur of a warrant of eviction because Petitioner had failed to provide a W-9 form needed to complete Respondent’s charity application for the arrears. (Dino Realty Corp v. Kahn 46 Misc. 3d 71, 3 NYS3d 259 (App Term, 2d Dept 2014); See also HPS Holdings Co LLC v. Al & Assoc LLC, 10 Misc. 3d 135 (A), 814 NYS2d 561 (App Term, 2d Dept 2005) (affirming Civil Court’s restoring tenants to possession after eviction; “any default under the stipulation was not chargeable to tenant as agent frustrated their attempts to make any payment”). Respondent argues that her default is only due to Petitioner’s failure to timely cash several DSS checks, and but for this, she would have been issued a One Shot Deal. Although Petitioner disputes that any delay in depositing the checks took place, no affidavit from someone with personal knowledge is included in reply to Respondent’s opposition. (See Maximum Physical Therapy, P.C. v. Allstate Ins. Co., 8 Misc. 3d 1021(A) at *3 (attorney affidavit has no probative value)). Thus, it remains largely undisputed that, as a result of the delay in cashing of the checks, Respondent was unable to obtain a One Shot Deal, which she relied on for payment of the arrears.⁵ Petitioner’s assertion that the present facts are not analogous to the case law cited by Respondent is misplaced. Whether or not Petitioner has willfully refused to cash checks, as Petitioner seems to argue is required, willfulness is not contemplated by the case law. In addition, the stipulation’s default provision states either party restore “for appropriate relief including entry of a judgment.” The “appropriate relief” language indicates the parties sought to leave discretion to the court, which may include issuance of a final judgment where appropriate. (See Gloria Homes Apts LP, 47 Misc. 3d 142[A]). As such, Petitioner’s motion seeking a final judgment is denied without prejudice.⁶ Respondent’s Cross-Motion Respondent cross-moves for an order to correct pursuant to N.Y. City Civ. Ct. Act §110(c), alleging that the repairs listed, other than paint, were not completed.⁷ The Housing Court has the authority to grant injunctive relief to enforce housing standards, regardless of the relief originally sought. (See N.Y. City Civ. Ct. Act §110(a);(c); See Prometheus Realty Corp. v. City of New York, 80 AD3d 206, 210-212, 911 NYS2d 299 [1st Dept 2010]). Here, the parties agreed by stipulation dated May 22, 2019: “3) Respondent alleges the following conditions need repair: severe infestation of mice and rodents, inconsistent heat and hot water, paint throughout apartment, mold condition and leak in bathroom window, defective enamel in bathtub, broken window balance in bedroom window, broken kitchen cabinets, broking missing shelves in refrigerator, defective front door locking mechanism, mold and leak condition in bedroom window frame. HPD violation report provided. Access to be granted May 28-30th 2019, workers before 11am…Repairs to be complete within 30 days of May 28th” (portions omitted). Respondent alleges that she was available at the subject premises to give access on May 28, 29 and 30th but that no one appeared from the landlord on each of those days. Respondent asserts that the painting was done on June 20, 2019. In opposition, Petitioner’s attorney contends repairs were done but includes no affidavit from someone with personal knowledge.⁸ Petitioner further argues that because completion of repairs was not conditional upon payment, an order to correct may not be issued. Petitioner is incorrect in this assertion, as the obligation to correct violations of the Housing Maintenance Code is separate from a tenant’s obligation to pay rent. (See N.Y. City Civ. Ct. Act §110(a);(c)). However, the parties’ stipulation and the current HPD inspection report⁹ do not include the same conditions. The parties’ stipulation also does not include acknowledgment from Petitioner that the “alleged” conditions constitute violations of the housing maintenance code, rather the stipulation only states “Respondent alleges the following conditions need repair” (emphasis added). Thus, Petitioner is ordered to correct those HPD violations which appear in both the parties’ stipulation and the HPD violation report:¹⁰ (1) nuisance consisting of mice; (2) nuisance consisting of roaches; and (3) properly repair with similar material the broken or defective porcelain enamel at bathtub within 30 days as required for “B” violations. The time to correct shall run from the date of service with notice of entry of this Order upon Petitioner. (NYC Admin Code §27-2115(a)). CONCLUSION Based on the foregoing, it is So Ordered, Petitioner’s motion to restore for a final judgment is denied, Respondent’s gross motion seeking an order to correct is granted. SO ORDERED, Dated: September 17, 2019