1425 U LLC v. Heyward
| Decision Date | 27 February 2017 |
| Docket Number | No. 48821/2016.,48821/2016. |
| Parties | 1425 U LLC, Petitioner–Landlord, v. Dorothy HEYWARD, Respondent–Tenant. |
| Court | New York Civil Court |
Recitation, as required by CPLR 2219(A), of the papers considered in the review of the Respondent's Order to Show Cause to Restore to Possession:
| Papers | Numbered |
| Order to Show Cause to Restore to Possession With Attached Affidavit | 1 |
| Supplemental Affirmation, Affidavit and Exhibits A–F in Support of Motion | 2 |
| Affirmation, Affidavit and Exhibits A–C in Opposition | 3 |
Upon the foregoing papers, the court file, the testimony and documentary evidence presented at a hearing that took place on the afternoon of February 14, 2017 and the morning of February 22, 2017, and for the reasons stated below, Respondent's Order to Show Cause is hereby granted and Petitioner is hereby ordered to restore Respondent to possession forthwith.
This is a nonpayment eviction proceeding brought by Petitioner 1425 U LLC against Respondent Dorothy Heyward, a Rent Stabilized tenant. The Notice of Petition and Petition are dated August 15, 2016 and the Petition was filed with the court on August 18, 2016. According to the Affidavit of Service sworn to by Petitioner's process server Ahmad Rahman on August 20, 2016, the Notice of Petition and Petition were allegedly served upon Respondent by "conspicuous place" service: After unsuccessful attempts at personal service on August 18, 2016 at 6:12 pm and August 19, 2016 at 9:32 am, a copy of the Notice of Petition and Petition was affixed to the door of the premises with tape on August 19 and then additional copies were mailed to Respondent at the premises by certified mail and first-class mail on August 20. The Notice of Petition with proof of service was filed with the court on August 22, 2016.
The Petition seeks alleged rent arrears totaling $935.74, comprised of $5.53 for the month of February 2016, $98.04 per month for the three months of March 2016 through May 2016 and $123.95 per month for the three months of June 2016 through August 2016. The Petition also seeks "MCI Retro" charges of $264.24 for the month of August 2016. The Petition alleges that the rent was demanded from the tenant since it became due by a three-day written notice, a copy of which is attached to the Petition with proof of service by the same process server who served the Notice of Petition and Petition (Ahmad Rahman), in the same manner as those papers ("conspicuous place"). The rent sought in the rent demand is almost identical to that sought in the Petition, the only difference being that for the month of February 2016 the rent demand asserts unpaid rent of $83.53 instead of the $5.53 listed in the Petition. The Petition asserts that the premises are a registered multiple dwelling and the managing agent is Ben Rieder, whose office is located at 5676 Riverdale Avenue, Bronx, New York 10471.
Petitioner's attorney prepared a written request dated September 13, 2016 asking the court to issue a final order based upon two sworn affidavits:
The first, the Affidavit of Merit sworn to by Petitioner's managing agent Ben Rieder on September 8, 2016, asserts that the information in the Petition is true, that Respondent owed $795.45 through September 2016 and that Petitioner sought entry of a default judgment against Respondent, who had failed to answer.
The second, an "Affidavit of Investigation" sworn to by Petitioner's agent Cesar Morales on September 2, 2016, asserts that on that date he "called at premises No. 1425 University Avenue (aka 1425 Dr. M.L. King Jr. Blvd.); Apt.2G, Bronx, N.Y. 10452 and had a conversation with DOROTHY HEYWARD, the tenant of record, at 11:30 am." Mr. Morales further asserts that, in addition to the conversation he had with the tenant at the premises on September 2, 2016, he is "personally familiar with the Tenants and have spoken to them on other occasions", that he reviewed the Tenant's file and questioned the superintendent "about the Tenant's living mode" and that, based on his investigation, he was convinced that the tenant presently is not in, or financially dependent upon someone in, the military service of the United States or of New York State.
On September 19, 2016 City Marshal John Villanueva filed with the court a Warrant Requisition. The court issued a warrant of eviction to Marshal Villanueva on October 5, 2016.
On Thursday, January 12, 2017 Respondent pro se took out a post-eviction Order to Show Cause seeking to be restored to possession. In the court's form Affidavit in support of that Order to Show Cause Respondent initialed and checked off three defenses:
In addition, she explained,
On the return date of the Order to Show Cause, January 18, 2017, both parties appeared by counsel and, after unsuccessful settlement negotiations, the proceeding was adjourned to January 23, 2017 for a hearing, with all stays remaining in effect. On January 23, 2017 Petitioner's counsel advised the court that the apartment had been re-rented to a new tenant, Karen Duran. Accordingly, the court issued an order requiring respondent by her attorney to serve a copy of the order along with a copy of Respondent's Order to Show Cause on Ms. Duran, allowing Respondent's counsel to serve supplemental papers by February 2, 2017, adjourning the hearing to February 14, 2017 at 2:15 pm for a hearing or settlement, and continuing all stays.
On February 14 Petitioner and Respondent both appeared by counsel; the alleged new tenant Karen Duran did not appear. The hearing started that afternoon, was completed on the morning of February 22 and both sides' counsel presented oral closing arguments.
The first witness called by Respondent on February 14 was a paralegal from the City's Department of Housing Preservation and Development (HPD), Jin Ren Zhang. He has worked at HPD for ten years. He brought with him copies of four sets of HPD Rent Breakdown letters for Respondent, dated August 24, 2015, May 1, 2016, August 15, 2016 and December 1, 2016.1 The letters are all from Section 8 Representative Sheila Young. Each set is comprised of two copies of letters bearing the same dates and containing almost identical information:
The Rent Breakdowns, effective dates and type of recertification listed in the four letters consist of the following:
August 24, 2015 letter:
May 5, 2016 letter:
August 15, 2016 letter:
December 1, 2016 letter:
Respondent testified next, and her testimony was credible and consistent throughout. Respondent is 82 years old and, prior to her eviction, had lived in the apartment for 51 years. She lives alone, and her income consists of Social Security Retirement benefits of $472 per month. On November 21, 2016, her 82nd birthday, Respondent's daughter picked her up to take her to her home for an extended visit to celebrate her birthday and Thanksgiving. She ended up staying through the Christmas and New Year's Day holidays and returned to her apartment on January 8, 2017. At that time, she discovered that her lock had been changed and she could not enter her apartment. She spoke to the super, learned that she had been evicted and went back to her daughter's home. She returned to the Bronx and to this court on January 12 to take out the within Order to Show Cause. Respondent testified that before January 8 she did not know that her landlord had brought this eviction proceeding against her, and had no reason to think there was any problem, as she had paid her rent every month and had not received the Notice of Petition and Petition or any other papers relating to the eviction. She was familiar with Housing Court from several prior cases, and testified that she would have come to court if she had known about this case, just as she has done in the past.
With regard to her rent, Respondent testified that she has a Section 8 subsidy, had paid her share of the rent in and for every month at issue in this proceeding and has all of her money order receipts. She mails in her money order rent payments every month, after receiving a statement under her door. She testified that her share of the rent was $78...
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