Bronx Park Phase II Pres. LLC v. V.C.
| Decision Date | 24 August 2017 |
| Docket Number | No. 60327/2016.,60327/2016. |
| Citation | 65 N.Y.S.3d 490 (Table) |
| Parties | BRONX PARK PHASE II PRESERVATION LLC, Petitioner–Landlord, v. V.C., Respondent–Tenant. |
| Court | New York Civil Court |
Arianna Gonzalez–Abreu, Esq., Gutman, Mintz, Baker & Sonnenfeldt, LLP, New Hyde Park, for Petitioner.
Graham F. Dumas, Esq. The Bronx Defenders Bronx, for Respondent.
Della DeKay, GAL for Respondent.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Order to Show Cause seeking Vacatur of the Default Judgment and Warrant of Eviction and Petitioner's Cross–Motion for Use and Occupancy:
| Papers | Numbered |
| Order to Show Cause with Supporting Affirmation | 1 |
| Notice of Cross Motion with Supporting Affirmation, Affidavit & Exhibits 1–2 | 2 |
| Affirmation in Reply & Opposition with Supporting Affirmation & Exhibits A–C | 3 |
Upon the foregoing papers, the Decision and Order on Respondent's motion to vacate the judgment entered on default after an inquest, and Petitioner's cross-motion for use and occupancy, which are consolidated herein for determination, are as follows.
This is a holdover proceeding commenced by Petitioner Bronx Park Phase II Preservation, LLC, a federally-subsidized, State-supervised, limited profit housing company, against Respondent V.C. who is the tenant at 1880 Valentine Avenue, Apt. 406, Bronx, New York 10457. The Petition is predicated on a Notice to Cure and Notice of Termination which allege that Respondent engaged in specified "anti-social, disruptive, destructive, dangerous and/or illegal behavior in and around the building" constituting both a violation of a substantial obligation of the tenancy and nuisance.
The Petition was originally returnable on October 17, 2016, on which date the case was adjourned to January 19, 2017 for trial. A notation on the court file jacket indicates that Respondent was "to seek legal in interim". On January 19, 2017 Respondent failed to appear and the case was adjourned to February 23, 2017 for inquest. After inquest, Housing Court Judge Spears issued a Decision/Order dated March 21, 2017 awarding a final judgment of possession to Petitioner with issuance of the warrant of eviction forthwith, no stay of execution, but with the requirement that, "The marshal must notify APS before scheduling any eviction."
Two weeks later, on April 5, 2017, the court signed an Order to Show Cause, prepared by The Bronx Defenders1 , seeking vacatur of the default judgment, a referral of Respondent to the City's Adult Protective Services (APS) agency and appointment of a guardian ad litem(GAL). On the return date of April 20, 2017, Judge Spears issued a Decision/Order appointing a GAL for Respondent and adjourning the proceeding to June 8, 2017 for the GAL to appear and for Petitioner to oppose that portion of the motion seeking to vacate the judgment and warrant, with opposition to be served and filed by May 19, 2017. The court appointed Della DeKay as Respondent's GAL by Order dated May 3, 2017. As of June 8, 2017, Petitioner had not yet served and filed its opposition papers and The Bronx Defenders' motion was adjourned to July 14, 2017. On June 21, 2017 Petitioner filed opposition and a cross-motion seeking use and occupancy. The Bronx Defenders filed an Affirmation in Reply and Opposition on July 11 and on July 14 the motion and cross-motion were adjourned to August 10. During argument on August 10, Bronx Defenders attorney Graham F. Dumas advised the court that Respondent's sister had retained him to represent Respondent. Mr. Dumas further reported that Respondent was currently an inpatient at South Beach Psychiatric Center, and that he was prepared to present medical records in support of the motion, if this could be done in camera and with a protective order sealing the file. After a discussion with counsel for both sides, the court determined that it was unnecessary to review the medical records and incorporate them into the court file as Petitioner's counsel had not opposed the appointment of a GAL and did not dispute that Respondent was an adult who was incapable of adequately protecting his rights in this proceeding or that he was currently hospitalized.
Respondent seeks vacatur of the default judgment under CPLR § 1203. Respondent's counsel asserts that he himself appeared on the second court date of January 19, 2017, although Respondent did not, that he "discussed the matter with Petitioner's counsel, and stated, in sum and substance, that [Respondent] required a guardian ad litem due to his diminished capacity," and that he "attempted to appear on the record as a friend of the court to request that [Respondent] be referred to Adult Protective Services (‘APS') for appointment of a guardian ad litem." Affirmation in Support of Graham F. Dumas, Esq. at ¶ 13–14. However, Respondent had not authorized him to disclose any information about his mental health to the Court, and the Court declined to make the APS referral or appoint a GAL for Respondent at that time. Respondent's attorney argues that the court should have adjourned the proceeding and referred Respondent to APS, and that Petitioner should have consented to such an adjournment. Instead, the court set the case down for inquest on February 23 and, in doing so, "noted that [Respondent] had appeared on the first court date, concluding that this was evidence supporting [Respondent's] competence." Affirmation in Support at ¶ 17.2 As described above, the court entered a default judgment after holding the inquest.
In opposition, Petitioner argues that the default judgment should not be vacated as Respondent has failed to establish an excusable default and meritorious defense as required by CPLR § 5015(a)(1). Petitioner argues that unlike the cases cited by Respondent's attorney, here Respondent has failed to provide proof of the alleged incompetence, or that Petitioner knew or should have known of it. Affirmation in Opposition of Arianna Gonzalez–Abreu, Esq. at ¶ 33. Further, Respondent's motion is based solely on an attorney's affirmation, which, Petitioner argues, does not "explain why [Respondent's] diminished capacity led to his failure to appear in court" and that Respondent "was clearly aware of the pendency of this proceeding, given that he appeared on the first court date".3 Id. at ¶ 28. Further, Petitioner argues that Respondent failed to state any defenses. Id. at ¶¶ 30–31. In addition, Petitioner argues that there is no basis to vacate or stay execution of the warrant of eviction, and that "a balancing of the equities does not tip in the Respondent's favor." Id. at ¶¶ 38–40.
In its cross-motion seeking use and occupancy, Petitioner asserts that Respondent owes $2730 in past due use and occupancy through June 2017, at the monthly rate of $286.4 Petitioner argues that RPAPL §§ 745(2) and 741(5) and Real Property Law § 220 permit Petitioner to seek a money judgment, eviction or both due to Respondent's failure to pay interim use and occupancy. Alternatively, Petitioner seeks an order directing Respondent to pay all outstanding use and occupancy by a date certain and to pay ongoing use and occupancy as it comes due throughout the pendency of this proceeding.
On reply, Respondent's attorney points out that Petitioner failed to address Respondent's argument that the default judgment should be vacated under CPLR Article 12, and argues that CPLR § 5015(a)(1) does not apply.5
Under CPLR § 1201, the court must appoint a guardian ad litem for, inter alia, "an adult incapable of adequately prosecuting or defending his rights." Once a GAL has been appointed, the court has the authority to vacate a default judgment under CPLR § 1203, which provides in its second (and last) sentence that, "No default judgment may be entered against an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed unless twenty days have expired since the appointment." The Advisory Committee Notes to CPLR § 1203 explain the purpose of this provision as follows:
A default judgment may be invalidated under CPLR § 1203 even where it was entered before the appointment of a GAL and, contrary to Petitioner's argument, CPLR 5015(a)(1) is not the appropriate standard to use; as explained by the Honorable Lucy Billings in New York Life Ins Co v. VK(184 Misc.2d 727, 736–37, 711 N.Y.S.2d 90, 97 [Civ Ct N.Y. Co 1999] ), See also, e.g., Kalimian v. Driscoll(1991 N.Y. Misc. LEXIS 854, 208 NYLJ 13 [App Term 1st Dep't 1991] ).
Further, "Even without a motion, the court's power to open its judgments for good cause and in furtherance of justice requires no less." New York Life Ins Co v. VK, supra(184 Misc.2d at 737–78, 711 N.Y.S.2d at 98 ). Compare Inwood Ventura Assoc, LLC v. Bonomme(51 Misc.3d 1214[A], 37 NYS3d 207 [Civ Ct N.Y. Co 2016] )(after appointing a GAL for an evicted respondent-tenant in a holdover proceeding, the court vacated the warrant of eviction, restored the respondent-tenant to possession and ordered payment of use and occupancy, but denied without prejudice the additional request to vacate the default judgment,...
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