Surrogate McGinty Joel Silberman, Esq., attorney for Vivian Multari-Ginsberg, petitioner/appellee Jennifer Duncan, pro se, respondent/appellant VIVIAN MULTARI-GINSBURG, pet, v. HEAR, INC. AND JENNIFER DUNCAN, res (0874-2019) — This is an appeal from a Town of Fallsburg Justice Court warrant of eviction following a nonjury trial in a holdover proceeding under Real Property Actions and Proceedings Law (RPAPL) §711(1). Judge Ward’s decision and warrant of eviction were issued on April 3, 2019. Prior to this appeal, the respondent, Jennifer Duncan, had obtained an order to show cause from this Court staying the warrant of eviction on the grounds that the trial court did not reasonably accommodate her disabilities in accordance with Americans with Disabilities Act (ADA) [42 §USC 12101-12213], the Fair Housing Amendments Act of 1988 (FHA) [42 USC §3604(f)(1), (2)] and due process principles. Duncan has been diagnosed with solvent-induced toxic encephalopathy, toxicant-induced loss of tolerance, and reactive airway disorder, in addition to a series of secondary ailments.1 As a result, exposure to everyday materials such as plastics, paint, plaster, upholstery, oil/forced hot air heating, ink, carbon and carbonless paper, markers, printed papers, electronic equipment and fumes, and copier/printers trigger extreme and disabling neurotoxic reactions, including breathing difficulties, paralysis, an inability to speak, confusion, inability to concentrate, and impaired memory. In evaluating Duncan’s prior motion to stay the trial court’s warrant of eviction, this Court presumed that Duncan is a member of the class of persons with disabilities intended to be protected by the ADA and the FHA. I then determined that the trial court provided Duncan with reasonable accommodations for her disabling conditions, enabling her to actively participate and defend her tenancy, satisfying the requirements of Title II of the ADA (42 USC 12101 et seq), and giving Duncan the meaningful opportunity to be heard required under Boddie v. Connecticut’s standards of due process (Boddie v. Connecticut, 401 US 371, 379 [1971]). Accordingly, the stay on the warrant of eviction was lifted. This appeal is not rendered moot by Duncan’s eviction because an improperly ousted tenant may be entitled to damages or restoration to possession (Matter of Kern v. Guller, 40 AD3d 1231, 1232 [3d Dept 2007], citing S.W.S. Realty Co. v. Geandomenico, 126 Misc 2d 769, 770-771 [Civ Ct, NY Cty 1984]). In this review of the trial court’s ultimate decision, this Court will again presume that Duncan’s disabling conditions are such that she is entitled to the protections of the ADA and the FHA. The accommodations provided to Duncan at trial proved to be of critical importance because her disabling conditions made it impossible for her advocate for herself orally during portions of the hearing. On the first day of trial ___March 20, 2019___ Duncan was able to make motions, mount an affirmative defense of retaliatory eviction, and began to cross-examine the landlord. Duncan had requested to receive a transcript of the landlord’s direct testimony prior to her cross-examination, but this was denied since it would further delay a trial which had already been adjourned several times since the initial February 20, 2019 return date. The second day of trial ___April 3, 2019___ had been set aside for Duncan to make her case. Unfortunately, Duncan reported that she was having difficulty communicating orally when contacted by the trial court at noon that day. The trial judge granted a 30-minute adjournment to allow time for Duncan’s powers of speech to be restored. When it became clear that Duncan could not fully participate, the trial judge ended the proceedings and announced her decision. Fortunately, an accommodation had been granted to Duncan in anticipation of just such a circumstance, permitting her to create a record by means of extensive written submissions to the trial court.2 These submissions, many of which were unsigned and/or unverified, were accepted in lieu of Duncan’s oral testimony. Her submissions at trial provide a complete account of the history of her disabling conditions, her efforts to obtain workers compensation and services from Sullivan County, the extensive accommodations she required of her aides and other persons entering her home, and the services provided and allegedly withheld by the landlord. In an effort to further accommodate Duncan’s disabilities on this appeal, this Court has provided an extended period of time for Duncan to take and perfect her appeal. Duncan’s notice of appeal was filed with the trial court on April 29, 2019 and with this Court on June 19, 2019. The certified return on appeal from the trial court was received by this Court on June 17, 2019. The trial court’s return does not include Duncan’s post-answer submissions, but those documents have been provided by Duncan in her brief on appeal have been made part of this record and have been reviewed in the preparation of this decision. At Duncan’s request, the Court extended her time to file her brief to July 15, 2019. Duncan’s disabling conditions were also accommodated in that the Court accepted her brief in the form of a series of emailed documents, many unsigned and/or unverified and in draft or “notation” form, beginning with a five-part email transmission on May 22 and 23, 2019 and ending on July 16, 2019. Most of the 300-400 pages submitted in this regard were previously submitted to the trial court, including detailed personal care plans prepared by Dr. Ziem in connection with Duncan’s 2015 application for workers’ compensation and correspondence between counsel to the County of Sullivan and Duncan’s erstwhile attorney, Henry Christensen, Esq. Neither Duncan nor the landlord requested time for oral arguments in connection with this appeal (Rules of App Div, All Depts [22 NYCRR] §1250.15 (c)[3]). No effort by Duncan to supplement the record at trial or formulate a brief on this appeal has been denied. This Court’s purposeful relaxing of the formalities of pleadings and papers in its review of Duncan’s submissions is itself an unequivocal accommodation of Duncan’s disabilities. The Court is satisfied that the liberal acceptance of Duncan’s paperwork in its various forms, in addition to the extended time for filing, constitute the “reasonable accommodation” owed to Duncan under the ADA and principles of due process. Having resolved the issue of the trial court’s compliance with the ADA and principles of due process on Duncan’s post-trial motion, this decision is limited to a review of the trial court’s decision on the landlord’s holdover petition. When the County Court sits as the intermediate appellate court, its standard of review is as broad as that of the Appellate Division, with full power to review all questions of law and fact and extending to all exercises of judicial discretion available to the trial court (UCJA §1702 [d]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A). The Court finds the following facts. The lease at issue was dated April 21, 2011 and created a month-to-month tenancy which renewed automatically absent a written termination notice.3 Typically, a landlord commences a summary proceeding for holding-over by first delivering to the tenant a 30-day notice to vacate (RPL §232-b). In this case, however, the controlling provision of the lease grants both parties the right to terminate the lease for any or no reason at all on 30 days’ written notice. The lease does not dictate the means of delivering the notice of termination. A 30-day notice of termination dated November 16, 2018 was delivered to Duncan’s home by the landlord’s attorney on November 23, 2018. It terminated the lease effective January 15, 2019. A notice of petition and petition setting a trial date of February 20, 2019 and was served on February 12, 2019. The petition sought only possession of the premises: there was no claim for unpaid rent or payment for “use and occupancy.” A pretrial conference was held on March 20, 2019 to review the accommodations required by Duncan and the trial court’s plans for addressing her needs. A bench trial was held on March 20, 2019 and April 3, 2019. At the conclusion of the proceedings on April 3, 2019, a judgment was issued in favor of the landlord and a warrant of eviction was issued and stayed to April 30, 3019. Duncan’s answer with counterclaims was delivered to the trial court by her self-described “messenger,” attorney Christensen, on February 27, 2019. In it, she admitted that she was in occupancy of the premises. She raised the affirmative defense of lack of personal jurisdiction, based on the failure to accommodate her disabilities in the manner of service of the predicate 30-day notice and the petition and notice of petition. Duncan also offered two statutory defenses to the eviction proceeding: retaliatory eviction under Real Property Law §223-b(1)(b) and discrimination against a person protected by the ADA and the FHA (42 USC §3604(f)(1), [2]). Finally, Duncan raised the following additional defenses and/or counterclaims: acceptance of rent checks during the “window period” between the 30-day notice and commencement of the holdover proceedings; breach of the warranty of habitability; shared meter in violation of Public Services Law; discrimination by reason of disability and failure to make reasonable accommodation for her disabilities; and counterclaims for torts (damage to personal property, personal injury, defamation and emotional distress).4 Duncan’s written testimony in support of her defenses and counterclaims are set forth at length in her submissions to the trial court and her appellate brief. These writings make abundantly clear that Duncan is an intelligent and articulate person, well-informed as to the precautions that she must take against triggers to her disabling conditions and a formidable advocate for her right to receive services and accommodations for those conditions. It is also clear that for the last decade of her life, Duncan has been a virtual prisoner of these disabilities. Protecting herself from the triggers that threaten her well-being also isolated her from her support network and made it impossible for her to get the help she desperately needs. Duncan efforts to protect herself from triggers to her disabling conditions have impeded her efforts to secure her legal rights in many forums. Thus, for example, Duncan’s inability to make herself available for an independent medical examination lead to the suspension of her workers’ compensation benefits, which had been in place since 2008 (Matter of Duncan v. John Wiley & Sons, Inc., 137 AD3d 1430 [3d Dept 2016]) (citing the “voluminous and evolving protocols, accommodations and restriction imposed by [Duncan] and her doctor to prevent exacerbation of [her] condition”). In a case in the Second Department, Duncan was compelled to submit to depositions in her home by live video conferencing, notwithstanding her assertion that contact with other individuals would endanger her health (Duncan v. 605 Third Ave., LLC, 49 AD3d 494, 496 [2d Dept 2008]). Returning to these proceedings, the landlord’s efforts to make repairs and otherwise address conditions toxic to Duncan were stymied by Duncan’s inability to communicate during portions of 2015-2018.5 Indeed, even though the landlord agreed to pay for work by contractors chosen by Duncan, and Duncan was able to find professionals who could accommodate her disabilities, it was often difficult for Duncan to schedule access to her apartment, given her precarious state of health. Personal Jurisdiction. Duncan argues that that the trial court lacked personal jurisdiction over her because the predicate 30-day notice and the holdover petition were not served in the manner she prescribed. Duncan required elaborate accommodations in this respect. The process server was first required to telephone Duncan in advance in the afternoon, when her symptoms customarily abated, and make an appointment to come to her home. At the appointed time, the process server was to knock at the front door, wait several minutes and then walk around the building and then hand-deliver the document to Duncan through an open window. On November 23, 2018, the landlord’s attorney attempted to personally serve the 30-day notice on Duncan at the premises. As related in his affirmation of service, Duncan was home at the time. She refused or was unable to open the door to accept service, but instead directed the attorney to post the notice on her door, which he did. He then followed up with service by first class and certified mail on the same day. Service of the notice of petition and petition was informed by the landlord’s experience in serving the predicate termination notice. Having found that Duncan was unable to accept personal service after several efforts to do so on February 12, 2019, the landlord was permitted under RPAPL §735 (1) to serve papers by “nail and mail” (Palmer House Owners Corp. v. Duchesneau, 64 Misc 3d 146(A)[2d Dept 2019]) (service on a person in the leased premises need not be attempted unless there is at least a “reasonable expectation of success”). The trial judge rejected Duncan’s argument that personal service was justifiably refused and held that service was complete and personal jurisdiction obtained when Duncan was served the predicate notice and eviction documents by affixing the documents to her front door and mailing the same via first class and certified mail. This Court agrees. The multiple, unsuccessful efforts to personally serve Duncan established that personal service did not have a reasonable expectation of success and that substituted service was the appropriate means to effect service (Palmer House Owners Corp. v. Duchesneau, 64 Misc 3d 146[A]). The landlord’s detailed affidavit of substituted service of the notice of petition and petition constituted prima facie proof of proper service. In order to rebut this presumption, Duncan had to do more than object that service did not conform to her stated requirements (Friedman v. Eisner, 23 Misc 3d 136(A) [2d Dept 2009]). Having failed to rebut the landlord’s prima facie case, Duncan’s affirmative defense must fail. It bears mentioning, in addition, that Duncan waived her defense on grounds of personal jurisdiction when she interposed claims which are unrelated to the landlord’s claim for possession, including claims for damage to personal property, personal injury, defamation and emotional distress. These claims are considered “unrelated” to the holdover proceedings because they would not be collaterally estopped in a proceeding outside of the eviction (Textile Technology Exch. v. Davis, 81 NY2d 56 [1993]) (by asserting an unrelated counterclaim, the defendant availed itself of the court’s jurisdiction to raise a matter that could be litigated independently of the principal proceeding, without risk of collateral estoppel). Retaliatory Eviction. On September 14, 2018, Duncan left two voicemails with the Town of Fallsburg Code Enforcement Office complaining of conditions in the premises. An inspection was set up for September 19, 2018 at 2:30 pm, but Duncan refused access to Code Enforcement personnel. An “order to vacate/unfit for human habitation” was therefore issued on September 20, 2018 based on Duncan’s complaints. Duncan claims that the landlord’s predicate notice of November 16, 2018 was in retaliation for her report to the Code Enforcement Office. The statutory protections against retaliatory eviction provide, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for [a] good faith complaint, by or on behalf of the tenant, to a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes. (RPL §223-b[1][a], [b]). A holdover proceeding is presumed to be retaliatory if it is taken within six (6) months of such a complaint (Scherer, Residential Landlord-Tenant Law in New York §11:23 [2011]). Under those circumstances, the burden of proof, which would otherwise lie with the tenant, shifts to the landlord to demonstrate an independent and non-retaliatory basis for the decision to evict the tenant (Brown v. Felton, 58 Misc. 3d 161(A) [1st Dept 2018]). These proceedings were not the landlord’s first effort to terminate Duncan’s occupancy. As the landlord testified at trial, she had served a 30-day notice on Duncan six years before this proceeding, on May 6, 2013. There then followed 20 months of negotiations for Duncan’s departure between the landlord and attorney Henry Christensen, Esq., followed by the payment of 20 months of back rent withheld by Duncan. The landlord sent a second notice to terminate Duncan’s tenancy on August 13, 2018 and served it on Duncan by personal delivery and certified mail. The landlord was not represented by an attorney at this time and apparently did not proffer copies of the notice sent or evidence of its delivery to Duncan at trial. However, Duncan did not dispute the landlord’s account, having acknowledged receipt of the predicate notice by including it in her appellate brief.6 The notice terminated the lease effective September 15, 2018. At trial, the landlord testified that she was now living on a fixed income and wished to sell the premises. Her realtor advised her that the property could not be sold with Duncan’s apartment in its current condition, which prompted her to try to terminate the tenancy a third time, culminating in these proceedings. A retaliatory intent cannot be imputed to the landlord in her second notice to terminate Duncan’s tenancy because it predated Duncan’s call to the local code enforcement officer by 30 days. The fact that the landlord did not follow up with a formal proceeding to evict Duncan until a third such notice was given does not create a nexus between Duncan’s complaints to Town authorities and her landlord’s efforts to terminate her occupancy. The presumption of retaliatory eviction created by commencement of the current proceedings is rebutted by the landlord’s showing of an independent and non-retaliatory basis for her decision to evict Duncan, which began in efforts five (5) years before Duncan’s complaints to the authorities. Breach of Warranty of Habitability. Duncan’s counter-claim for an offset in rent for a breach of warranty of habitability is not a defense to the landlord’s holdover proceeding (Center for Behavioral Health Services, Inc. v. Bock, 18 Misc 3d 1111(A) [Civ Ct, Kings Cty 2008]). As a general matter, the warranty of habitability is not properly raised as a defense in a holdover proceeding, unless the landlord seeks a monetary award for “use and occupancy” of the demised premises following the end of the lease term (see, eg Hope Horizon Realty v. Johnson, 56 Misc 3d 1217(A) [Mt Vernon City Ct 2017]). The landlord seeks no such monetary award in this proceeding and Duncan’s counter-claim for breach of the warranty of habitability was therefore correctly dismissed. Acceptance of Rent Payments Prior to Commencement of Proceeding. Duncan alleged that the landlord received and retained rent payments after the service of the 30-day notice and before the commencement of the holdover proceedings. Accepting rent payments during this “window period” may result in a waiver of the landlord’s right to evict for holding-over, divesting the trial court of jurisdiction (2657 East 68th Street Corp. v. Bergen Beach Yacht Club, 161 Misc 2d 1031, 1032-1034 [Civ Ct, Kings Cty 1994]; RPAPL §711(1). The landlord acknowledged at trial that she had continued to receive rent checks from the trust established for Duncan’s benefit by mail after service of the predicate notice. There is no evidence that payment was solicited or demanded by the landlord. By the time of trial, the landlord had returned all but the most recent of the checks to the trust, “[telling] them that I am not accepting any more rent from the day I had sent the notice to quit.” At the time of her testimony, the landlord was in possession of trust checks only for March and April 2019 but stated she intended to return those checks, too.7 The retention of rent payments received during the window period will be considered a waiver only if it evidences a knowing surrender of the landlord’s right to terminate the lease (Matter of Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99, 103-104 [2d Dept 2015]) (acceptance of an unsolicited check will not vitiate a termination notice unless it “unmistakably manifests…an intent to relinquish” holdover claims). Here, the landlord has made her intent clear. She did not make rent demands after the service of the predicate notice and promptly returned the checks she knew she was not entitled to receive. The landlord’s conduct manifested a clear and unequivocal intent to terminate the occupancy and her mere receipt of unsolicited checks does not evidence any intent to the contrary. Discrimination. Under the FHA, it is unlawful to discriminate in housing practices, including rental terms, conditions, privileges, services and facilities, on the basis of a “handicap” (42 USC §3604 [f][2]). Housing discrimination includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a tenant an equal opportunity to use and enjoy a dwelling (42 USC §3604 [f][3][B]). However, the FHA does not mandate a reasonable accommodation to a tenant which “would result in substantial physical damage to the property of others”(42 USC §3604 [f][9]), nor does the obligation to provide a reasonable accommodation extend to what the tenant views as “the ideal solution” (Hunts Point Hous. Dev. Fund Corp. v. Ferebee, 2019 NY Misc. LEXIS 6076, *29-30 [NY Civ Ct Bx Cty 2019]). What is “reasonable” varies from case to case, because it is necessarily fact-specific (see Shapiro v. Cadman Towers, Inc., 844 F Supp 116 [EDNY 1994]) (bladder disorder necessitated moving tenant to the top of the waiting list for an indoor parking spot), affd 51 F Supp 3d 328 [2d Cir 1995]). The overarching guiding factor, however, is that a landlord is obligated to provide a tenant with a reasonable accommodation if required for the tenant to keep his or her apartment (Matter of Prospect Union Assoc. v. DeJesus, 167 AD3d 540, 543 (1st Dept 2018]). In many of the reported cases, termination of the tenancy is sought based on the tenant’s problematic conduct, which is itself often attributable to physical or psychiatric disabilities. The “reasonable accommodations” required by law are made by the trial court and may consist of an extended stay of eviction, mandates to secure treatment or supportive services, and suitable monitoring to safeguard other tenants from the ill effects of the objectionable conduct (see, eg, Diego Beekman Mut. Hous. Assoc. Hous. Dev Fund Corp. v. McClain, 63 Misc 3d 1218(A)[Civ Ct, Bx Cty 2019]). In the present case, the alleged discriminatory conduct consists of statements made by the landlord, the landlord’s alleged failure to address conditions toxic to Duncan, and the termination of Duncan’s tenancy alone among the half-dozen rented units on the property. No details were proffered to substantiate Duncan’s broad and conclusory claims of discriminatory statements by the landlord. In contrast, there was extensive testimony by the landlord and Duncan as to the landlord’s efforts to remedy the conditions complained of. As noted above, those efforts were in large part thwarted by Duncan’s disabling conditions, which interfered with communications with both the landlord and contractors engaged to address those conditions and prevented Duncan from providing the landlord or her agents with the access to her apartment required under Paragraph 9 of the lease (see, de Socio v. 136 E. 56th St. Owners, Inc., 61 Misc. 3d 1220(A) [Civ Ct, NY Cty 2018](failure to correct conditions imputed to tenant “when access to the landlord to inspect or remedy the alleged defective condition is refused or thwarted”). Finally, the termination of Duncan’s occupancy was a right reserved to both parties to the lease: this right was not limited to cause and could therefore be exercised for any or no reason at all. The Court has already found that the landlord’s exercise of the right to terminate was not retaliatory. I now find that there is no evidence that the landlord’s exercise of her contractual rights was motivated by the discriminatory animus prohibited under the FHA. The Court finds the following established by the required quantum of proof at the trial court: 1. The 30-day predicate notice and the petition and notice of petition were properly served on Duncan, conferring jurisdiction on the trial court. 2. Duncan was in possession of the leased premises at all times during the holdover proceedings. 3. Duncan did not meet her burden of proof with regard to retaliatory eviction under RPAPL §223-b[1] because the landlord established that her efforts to end Duncan’s occupancy predated Duncan’s complaints to the town code enforcement officer. 4. The counterclaim for breach of the warranty of habitability is barred in this proceeding because the landlord is not seeking rent or other compensation for “use and occupancy” of the leased premises. 5. The landlord returned all payments of rent received during the window period between the service of the 30-day notice and the commencement of the holdover proceedings. 6. The landlord made good faith efforts to reasonably accommodate Duncan’s multiple disabilities. Duncan did not offer proof of discriminatory conduct on the part of the landlord under the FHA. 7. Duncan’s broad assertions of emotional distress, defamation, and injury to person and property are not supported by particularized evidence of actual conduct and the time, place and manner of such conduct. ORDERED, ADJUDGED and DECREED, Duncan’s continued possession of the leased premises after service of the predicate notice and commencement of the eviction proceedings provided adequate grounds for the trial court’s ultimate determination awarding possession to the landlord; and it is further ORDERED, ADJUDGED and DECREED, the determination of the Town of Fallsburg Justice Court in this matter is hereby affirmed. This constitutes the decision of the Court. All papers, including this Decision, are hereby entered and filed with the Clerk of the Sullivan County Court. Counsel is not relieved from the applicable provisions of CPLR §2220 relating to service and notice of entry. Dated: December 16, 2019
