2 Perlman Drive, LLC v. Stevens
| Decision Date | 09 February 2017 |
| Docket Number | No. L & T 74399/14.,L & T 74399/14. |
| Citation | 54 N.Y.S.3d 613 (Table) |
| Parties | 2 PERLMAN DRIVE, LLC, Petitioner, v. Debbie STEVENS, Respondent. |
| Court | New York Civil Court |
Rosenblum & Bianco, LLP by Mark McMillin, Esq. by Diana Morgan, Esq., Rockville Centre, for Petitioner.
Debbie Stevens, Pro se.
Petitioner commenced this holdover summary proceeding based upon the contention that the respondent, Ms. Debbie Stevens, unreasonably refused the landlord access to the subject premises, 7212 Fourth Avenue, Apartment B2, Brooklyn, N.Y. 11209 ("subject premises") in order for the landlord to exterminate to remove the bedbug infestation, therein. Specifically, the Notice of Termination states: 1
The proceeding was unable to be settled in the resolution part, and was transferred to Trial Part R, so that a trial could be conducted on the issues.
In Trial Part R, the parties, through their attorneys executed a written settlement agreement, dated August 11, 2014, which was "so ordered" by the Court, (Judge Marc Finkelstein). The stipulation required Ms. Stevens to (sic ).2
By notice of motion dated September 10, 2014, petitioner moved to restore the proceeding to the calendar, and for an immediate hearing to determine whether respondent breached the terms of the stipulation by failing to provide access to the petitioner to exterminate for bedbugs on September 5, 2014, as required by the August 11, 2014 stipulation of settlement. The motion was returnable on September 15, 2014. On that date, the parties entered into a "two-attorney" stipulation of settlement.
The parties entered into a "two-attorney" stipulation of settlement on September 15, 2014 which read, in pertinent part as follows: 3 4 The stipulation also provided for a second access date of October 2, 2014, as well as, reimbursement to Ms. Stevens for cleaning her belongings prior to returning them to the premises after the extermination.
By notice of motion dated April 14, 2015, petitioner moved to restore the proceeding to the calendar, and for an immediate hearing to determine whether respondent breached the terms of the stipulation dated September 15, 2014 by failing to provide the petitioner "proof that she [Ms. Stevens] had a complete cleaning of her clothing and articles/items by ‘a cleaning service’ that were placed in storage prior to the extermination of the subject apartment."5 On June 1, 2015 the parties entered into a "two attorney" stipulation of settlement, resolving the motion.
The stipulation dated June 1, 2015 reads in pertinent part, as follows: 6 7 Additionally, the stipulation required Ms. Stevens to provide the petitioner with a receipt that her personal items were placed in storage prior to the extermination date and that they were also professionally cleaned prior to returning the previously stored and professionally cleaned items, back to the subject premises.8 The stipulation also provided that "[i]n the event that the cryonite (same as last time) chemical ... is not effective ... the petitioner may restore the case to determine if a stronger/more effective method can be used."9
Subsequently, Ms. Stevens filed an Order to Show Cause application dated June 9, 2015. According to the cover page generated by the Court, the application is the second "OSC" application and the fifth "motion sequence." As respondent was represented by counsel, this Court declined to sign the application and granted leave to renew with an application to proceed without her attorney. The case summary which is generated in the office of the Clerk of the Court, shows that later that same day (June 9, 2015) Ms. Stevens filed two (2) additional Order to Show Cause applications, one (1) seeking to proceed without an attorney and the other to compel the petitioner to perform repairs (motion sequences 6 and 7).
In response to the motions filed by Ms. Stevens, petitioner crossed moved for the issuance of a final judgment of possession against the respondent based upon the contention that Ms. Stevens failed to comply with the June 1, 2015 stipulation of settlement (motion sequence 8). The motions were returnable on June 17, 2015. On that date, this Court issued an interim order. The interim order required the petitioner to exterminate for bedbugs on June 25, 2015 and perform follow up treatment on July 9, 2015. Additionally, the interim order required that a Court appointed liaison inspect the premises on July 14, 2015 and the proceeding was adjourned to July 15, 2015.
Additional applications were filed and the case summary report, generated by the Clerk of the Court, shows that on July 15, 2015 this Court issued an Order from the bench addressing the outstanding applications. The order reads as follows: "Based upon the conflicting accounts of the facts and after extensive conferenceing and arguments, respondent agreed to, at her own expense hire a professional company to pre-treat the premises for bedbug extermination and petitioner agreed to exterminate for bedbugs on August 3, 2015 ... Accordingly, the motions are denied with leave to renew following compliance with the instant decision/order, if necessary."
By notice of motion dated September 10, 2015 and returnable on September 21, 2015, petitioner moved for an Order restoring the proceeding to the calendar and granting "permission [to the petitioner] to use a stronger chemical in the extermination for bedbugs at the subject apartment." On September 21, 2015 the application was adjourned to October 26, 2015.
On October 26, 2015, the parties entered into a Consent Order. The Consent Order required the respondent to provide the petitioner and petitioner's contractors access to the premises to exterminate for bedbugs on November 10, 2015 and November 23, 2015. It was agreed that the exterminator would use chemicals. Additionally, the respondent was to provide an estimate from a professional bedbug preparation company by 5:00 in the post noon on November 3, 2015 and petitioner was required to pay for the preparation in advance of the treatment.
On November 6, 2015, respondent filed an additional Order to Show Cause application seeking to change the initial access date of November 10, 2015 and for a clarification of "who pays for the second prep[aration] not discussed in the stip[ulation]"10 (Order to Show Cause sequence 8 and Motion sequence 13). This Court declined to sign the application, noting that this proceeding is a "no access" holdover, and there was no basis to sign the application.
By notice of motion dated November 30, 2015 and returnable on December 14, 2015 (motion sequence 14) petitioner sought an Order restoring the proceeding to the calendar and for a hearing on the issue of whether the respondent breached the terms of the October 26, 2015 Consent Order and for other related relief.
On the December 14, 2015 return date of the petitioner's motion, after extensive conferencing and arguments, this Court issued an Interim Order, which was signed by the parties, and adjourned the matter to January 20, 2016 to provide the respondent an additional opportunity to provide access so that the petitioner could exterminate the bedbugs. The Interim Order also required the respondent to prepare the premises for bedbug extermination, noting that the petitioner tendered a check in the amount of $974.21 to the respondent for said service. The Interim Order also required the respondent to provide access on December 22, 2015 and January 6, 2016 to exterminate for bedbugs using an unspecified chemical.
On January 20, 2016, the parties were unable to reach a mutually acceptable resolution and the motion was granted to the extent of restoring the matter to the calendar on February 9, 2016, for the Court to conduct a hearing to determine the issues raised in the petitioner's motion and the respondent's opposition.
Subsequent to the petitioner filing the motion dated November 30, 2015 (motion sequence 14) and prior to the scheduled hearing date of February 9, 2016, Ms. Stevens, on December 9, 2015, filed a law suit in the United States District Court for the Eastern District of New York claiming that the petitioner in the instant action is violating her rights pursuant to the Fair Housing Act ("FHA") and the American with Disabilities Act ("ADA") (docket number 1:15cv07041–PKC–LB). It is Ms. Stevens' contention in the Federal suit, that because of her unique health situation, the petitioner must make a reasonable accommodation when exterminating for bedbugs in her home, as any use of chemicals will have a negative impact on her health.
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