10-12 W. 107TH St. HDFC v. Mireya Vilma, 12 W. 107TH Street—apt 2C N.Y.

• Decision Date: 03 December 2013
• Citation: 41 Misc.3d 1235,2013 N.Y. Slip Op. 51984,976 N.Y.S.2d 830
• Parties: 10–12 WEST 107TH STREET HDFC, Petitioner–Landlord v. Mireya VILMA, 12 West 107th Street—Apt 2C New York, New York 10025, Respondent–Tenant John Doe # 1, “Jane Doe# 1,” and “Jane Doe No. 2”, Respondents–Occupants.
• Court: New York Civil Court

41 Misc.3d 1235
976 N.Y.S.2d 830
2013 N.Y. Slip Op. 51984

10–12 WEST 107TH STREET HDFC, Petitioner–Landlord
v.
Mireya VILMA, 12 West 107th Street—Apt 2C New York, New York 10025, Respondent–Tenant
John Doe # 1, “Jane Doe# 1,” and “Jane Doe No. 2”, Respondents–Occupants.

Civil Court, City of New York,
New York County.

Dec. 3, 2013.

[976 N.Y.S.2d 831]

Andrea Shapiro Esq., New York, Attorneys for Petitioner.

SRO Law Project, by Deborah S. Stern, Esq., New York, Attorneys for Respondent.

SABRINA B. KRAUS, J.
BACKGROUND

The underlying summary holdover proceeding was commenced by 10–12 WEST 107TH STREET HDFC (Petitioner) against MIREYA VILMA (Respondent), based on the allegation that Respondent was a month to month tenant who had chronically failed to pay her rent timely, and that Respondent had failed to accept a renewal offer at a higher rent.

PROCEDURAL HISTORY

Petitioner issued a thirty day notice of termination dated August 24, 2011(Notice).

The Notice asserted that throughout Respondent's tenancy Respondent had chronically failed to pay her rent on time. The Notice further asserts that from 1996 to 2011 at least twelve nonpayment proceedings were commenced, and index numbers for those proceedings are specified therein. The Notice further asserts that the proceeding started in 2006 was pending for a period of two years through and including November 2008. This was followed by a proceeding commenced in February 2009, which was pending through mid–2011. The Notice further asserts that the costs of this prolonged litigation end up being absorbed by the shareholders of the HDFC.

The petition is dated October 7, 2011, and the proceeding was initially returnable on October 19, 2011.

In December 2011, Counsel appeared for Respondent. On February 8, 2012, Respondent filed a written answer asserting an affirmative defense based on breach of warranty of habitability.

THE JULY 20, 2012 STIPULATION

On July 20, 2012, counsel for both parties entered into a stipulation of settlement. The stipulation provides “(t)he parties acknowledge that the Petitioner is a low income' residential cooperative housing corporation. Respondent Mireya Vilma's tenancy, prior to termination, was month to month and not subject to any type of rent regulation.”

The stipulation provided that Respondent would be on probation for a period of 12 months, during which time she agreed to pay her rent by the 10th day of each month. The stipulation provided that “TIME BEING OF THE ESSENCE” in two different paragraphs, but also afforded Respondent an opportunity to cure any defaults within 5 days of a notice to cure being faxed to Respondent's attorneys. The agreed upon use and occupancy was $1250 per month. The stipulation provided that Respondent would make all payments by money order or DSS checks.

The stipulation provided that if Respondent failed to cure the breach within the five day period, Petitioner would be entitled to restore for a judgment and a warrant, and that said relief would be granted without a hearing, unless the breach was disputed.

[976 N.Y.S.2d 832]

Respondent also acknowledged past due arrears at the time of the stipulation of $4087.00, this included $1500 in legal fees, which Respondent agreed to pay by August 31, 2012. Respondent did not have the funds to pay said arrears, but obtained a one shot deal by the end of August to satisfy said amount.

On April 29, 2013, Petitioner moved for a judgment of possession based on its allegation that Respondent had breached the stipulation of settlement. The motion asserted that as of said date Respondent had breached the terms of the stipulation on three separate occasions.

The first breach was that Respondent failed to timely pay rent for October 2012. On October 19, 2012, Petitioner issued a notice to cure, Respondent cured within the applicable period. Petitioner's breakdown also indicates a check submitted by Respondent that month was dishonored for insufficient funds.

Respondent breached the stipulation a second time when she failed to pay rent timely for December 2012. Petitioner issued a notice to cure December 11, 2012, and Respondent cured within the applicable period.

The third breach occurred when Respondent failed to pay rent on time for March 2013. Petitioner issued a notice to cure dated March 28, 2013, giving Respondent until April 2, 2013 to cure. Respondent tendered two payments on April 4, 2013, one was a check for $800, check number 416, this check was again returned by the bank for insufficient funds. Respondent failed to cure within said period, and Petitioner brought the motion for a judgment.

Respondent submitted written opposition to the motion. Respondent acknowledged in the opposition that as of April 29, 2013, the return date of the motion she was in default on the terms of the stipulation and unable to satisfy the arrears. However, she argued to would be able to come current shortly after the return date of the motion.

THE MAY 30, 2013 STIPULATION

The motion was resolved by stipulation dated May 30, 2013. The stipulation extended the probationary period through October 31, 2013, provided that Respondent would pay additional fees, and that Respondent would pay arrears of $1530 due through May by June 15, 2013. The stipulation provided that all other terms of the July 20, 2012 stipulation remained in full force and effect, and further provided “Petitioner indicates no additional reinstatements will be voluntarily granted.”

Respondent paid $1530 by June 13, 2013, but Respondent failed to pay use and occupancy for June by June 10, 2013. Respondent failed to pay use and occupancy for July by July 10, 2013. Petitioner issued...