RECITATION AS REQUIRED BY CPLR §2219(A) OF PAPERS CONSIDERED IN THE REVIEW OF PETITIONER’S MOTION USE AND OCCUPANCY PENDENT LITE AND COUNSEL FOR RESPONDENT, BUN LEUNG POON’S, MOTION TO WITHDRAW AND AUTOMATIC 30 DAY STAY PAPERS: NUMBERED PETITIONER’S NOTICE OF MOTION, AFFIRMATION, AFFIDAVIT, EXHIBITS 1-5; 1-3 RESPONDENT’S AFFIRMATION IN OPPOSITION & EXHIBITS 1-6; A-B RESPONDENT’S NOTICE OF MOTION TO BE RELIEVED 1-5 PETITIONER AFFIRMATION IN OPPOSITION 1-5 RESPONDENT’S REPLY 1-4 PETITIONER’S REPLY & EXHIBIT 1-4; 1 DECISION/ORDER Petitioner commenced this holdover proceeding seeking possession of 123 Henry Street. Apartment 19, New York, New York 10002 (“premises”). The premises are subject to the Rent Stabilization Law of 1969, as amended. The petition alleged that respondent was in violation of his lease as he illegally converted the premises by installing walls and/or partitions which modified the premises and created additional rooms for which petitioner did not consent. This proceeding initially appeared in Part H on August 2, 2019 and was adjourned numerous times for settlement purposes. The proceeding was scheduled for trial on February 3, 2020 but was adjourned to February 6, 2020 at the request of respondent in order to allegedly finalize the terms of a settlement. On February 6, 2020 the Court was not available and the proceeding was adjourned for trial to April 13, 2020. Petitioner also brought this motion for use an occupancy pendente lite, which was scheduled to be heard on March 23, 2020. Due to the onset of the coronavirus pandemic and a suspension of “in person operations” neither the hearing nor the trial took place. Petitioner’s motion for Use and Occupancy Pendente Lite Petitioner makes this motion for use and occupancy pendente lite. According to petitioner it has not received rent from respondent since July, 2019 and the last rent-stabilized rent for the premises was $760.42 per month. Petitioner alleges that it is entitled to use and occupancy pursuant to the Real Property Action and Proceedings Law (“RPAPL”) §745(2)(a). RPAPL §745(2)(a) provides that in a summary proceeding use and occupancy may be awarded upon the second of two adjournments granted at the request of respondent, or, upon the sixtieth day after the first appearance in court less any days that proceeding has been adjourned by petitioner. Under RPAPL §745(2)(a) the court may, upon a balancing of the equities, direct that respondent, upon notice made by the petitioner, deposit with the court, sums of rent or use and occupancy which accrue subsequent to the court’s order. Respondent alleges that petitioner is not entitled to collect retroactive use and occupancy under the Housing Stability Tenant Protection Act (“HSTPA”) and RPAPL §745(2)(a) because, as stated above, use and occupancy may only be granted as of the date of the court’s order. Respondent further alleges that petitioner is not entitled to use and occupancy because it waited to make its motion until the eve of trial and therefore it cannot suddenly seek a retroactive lump sum. Lastly, respondent argues that upon a balancing of the equities, petitioner should not be granted use and occupancy pendente lite. According to counsel for respondent, respondent is in poor health, has a limited income of $350.00 per month from social security, suffered a heart attack in China, has not returned to the United States and based upon his unforeseen medical expenses, his family can no longer subsidize his rent. Accordingly, respondent argues that an award of use and occupancy would cause and undue hardship. In the event that this Court award’s petitioner use and occupancy, respondent argues that such award must be limited to 30 percent of respondent’s fixed income or $106.00 per month based upon HSTPA. HSTPA amended RPAPL §745 to state that when a tenant is on a fixed income, including social security, that tenant should not be required to deposit more than thirty percent of the monthly payments. Under the circumstances herein, a balancing of the equities requires this Court grant petitioner’s motion for use and occupancy pendente lite. It has been almost a year and a half since this proceeding appeared in the calendar. On February 3, 2020, the proceeding was set for trial and respondent asked for an adjournment to allegedly finalize the terms of a settlement. Respondent failed to settle the proceeding and has failed to make any monthly payments since July, 2019. Respondent is in China, not occupying the premises and allegedly profiteering from renting the spaces created by illegal partitions. While this Court grants use and occupancy in favor of petitioner, it is confined by the constraints placed on it by the HSTPA. Accordingly, respondent is ordered to pay 30 percent of his fixed income or $106.00 per month to petitioner commencing January, 2021. Petitioner has not asked for retroactive use and occupancy and the Court will not address arguments raised by respondent. Manhattan Legal Service’s (“MLS”) Motion to Be Relieved Counsel for Respondent, MLS, has made a motion to be relieved as counsel for respondent. MLS alleges that on November 17, 2019 respondent’s son and Power of Attorney (“POA”) retained MLS as counsel for respondent. MLS appeared for respondent however on June 11, 2020, respondent’s POA informed MLS that he had found a private attorney for respondent and stated that attorney would take over the case from MLS. During subsequent conversations between respondent’s POA and MLS, respondent’s POA repeatedly stated he had hired the private attorney and was under the assumption that the consent to change attorney had been taken care of. When MLS contacted respondent’s POA to inform him of a virtual conference on July 29. 2020, respondent’s POA advised MLS that he did not want MLS to appear at that conference and the new attorney would appear. The new attorney did not appear on the conference and since that time, MLS has made numerous attempts to reach respondent’s POA to no avail. On August 24, 2019, the POA’s wife called MLS and stated the POA was out of the country and repeated the new attorney took care of the requisite paperwork to change counsel. MLS has never been contacted by the alleged new private attorney. As MLS has been informed that respondent does not want it to act on his behalf and MLS has had no contact with respondent or his POA, it seeks to be relieved pursuant to Rule 1.16(c)(10) of the New York State Rules of Conduct which provides that a lawyer may withdraw from representing a client if the client knowingly and freely assents to the termination of employment. Petitioner does not object to MLS’s motion to be relieved. However, under the circumstances herein, the motion is granted and MLS is relieved as counsel for respondent. Petitioner objects to a thirty day stay for respondent to hire new counsel. According to petitioner, a stay is not necessary since respondent has represented that since June, 2020 he has retained new counsel. Petitioner believes that respondent has taken all possible dilatory efforts to delay this trial and this is one more step toward that end. Despite the fact that respondent represented that he hired new counsel in June, 2020: no one has contacted petitioner’s office; both respondent and his POA are allegedly out of the country and unreachable; and: to date, respondent has never physically appeared. In support of its argument, petitioner alleges that when an attorney’s withdrawal is caused by the voluntary act of the client, the Court can permit the case to proceed without any stay. Wliey v. Musabyemariya, 118AD3d 898, 899-900 (2nd Dept 2014); Hendry v. Hilton, 283 AD 168, 171 (2nd Dept 1953). Petitioner further argues that contrary to respondent’s claim, CPLR 321(c), and its predecessor Civil Practice Act 240, have not been construed as imposing an automatic 30- day stay of proceedings where a party voluntarily discharges his attorney. Levine v. City of NY, 111 AD2d 785, 788 (2nd Dept 1985). Based upon the unique circumstances presented in which it appears respondent is out of the country as is his POA and the circumstances related to the coronavirus pandemic the Court grants a 30 day stay for respondent to appear with his new counsel. A conference will be held on January 28. 2021 at 2:30 pm. Respondent should contact the court at Newyork-housing-851 to provide an email address for a virtual hearing. Dated: December 21, 2020
