City of New York v. Scott
| Decision Date | 16 October 1998 |
| Citation | 178 Misc.2d 836,680 N.Y.S.2d 819 |
| Parties | , 1998 N.Y. Slip Op. 98,634 CITY OF NEW YORK, Petitioner, v. Kenneth SCOTT, Respondent. |
| Court | New York City Court |
Petitioner moves for an order restoring this holdover proceeding to the calendar pursuant to the order of the Appellate Term, as affirmed by the Appellate Division, for a new trial on whether the Department of Housing Preservation and Development (HPD) had cause to deny respondent's application to succeed to his mother's tenancy. Respondent opposes on two grounds: (1) this application violates the parties' stipulation of August 23, 1995 made at the Appellate Term, where they agreed that if the Appellate Term granted leave to appeal to the Appellate Division and the order of the Appellate Term granting a new trial is affirmed, judgment absolute may be entered against petitioner; and (2) the petitioner lost any right to maintain this proceeding when it sold the building in 1996. Petitioner counters that (1) the remand language of the Appellate Division supersedes any agreement between the parties; and (2) despite the fact that title has been transferred, petitioner may still maintain this proceeding based upon the denial by the Appellate Division of respondent's application to dismiss the appeal as moot due to a transfer of ownership, and the finding by the Appellate Division that the conveyance of the property obviates any claim that respondent must first bring an Article 78 proceeding to challenge HPD's administrative determination.
For the reasons stated below, petitioner's application to restore this holdover proceeding to the trial calendar is denied.
The City of New York commenced this licensee holdover proceeding in 1992. It is Petitioner's pretrial motion to strike respondent's defense of succession rights was denied by the Honorable Carl O. Callender, who also presided over the trial. During the trial, respondent offered evidence to support his claim that he was eligible under HPD's Successor Tenancy Policy to become the tenant of the subject premises. HPD merely asserted at trial that respondent was ineligible to become the tenant because he engaged in "unacceptable activity" of drug trafficking in the vicinity of the premises. Petitioner preserved its objection that the Housing Court had no jurisdiction to consider respondent's succession defense, which it claimed had been addressed at the administrative level, but did not offer any evidence to demonstrate the reason why HPD denied respondent's application. By decision and order dated July 15, 1993, the court dismissed the petition, finding that the Housing Court had jurisdiction to consider respondent's claim of succession rights, that respondent was entitled to a hearing on the denial of his administrative application at HPD and that respondent proved he was a remaining family member entitled to succession rights.
undisputed that respondent resided at the subject premises with his mother, the legal tenant, from 1985 until her death in 1991, and then alone thereafter. Respondent's answer contained, inter alia, the affirmative defense of succession rights to the apartment. Prior to the commencement of this proceeding, HPD denied respondent's application to HPD for tenancy in his own name as well as respondent's pro se administrative appeal, but failed to inform him he had the right to challenge it by commencing an Article 78 proceeding.
By order dated August 4, 1995 the Appellate Term reversed the trial court decision, ordered a new trial and remanded the case for a hearing on the issue of whether respondent's activities in the subject premises disqualified him from eviction protection as a successor tenant. Although the trial court dismissal of the petition was reversed, the petitioner was not awarded a judgment, the Appellate Term holding:
While the Civil Court dismissed the petition, we deem it preferable to direct a new trial. The question whether respondent's activity at the premises disqualifies him from eviction protection as a successor tenant was not developed below, and there should be a merits determination of that issue before respondent's status is finally resolved.
As a condition of petitioner's appeal to the Appellate Division pursuant to CPLR 5703(a), the parties then entered into a stipulation before the Appellate Term First Department which provided:
IT IS HEREBY STIPULATED that if this court grants petitioner leave to appeal to the Appellate Division, First Department from this court's order, entered August 9, 1995, reversing the judgment of the Civil Court and granting a new trial, judgment absolute may be entered against petitioner in the event that this Court's order is affirmed (emphasis added).
In unanimously affirming the order of the Appellate Term and remanding the matter to the Civil Court for a new trial, the Appellate Division by order dated May 1, 1997, found that respondent made a prima facie showing of entitlement to the apartment under HPD's Successor Tenancy policy. The Appellate Division held:
"... because respondent received no meaningful opportunity at the agency level to confront the evidence of his alleged drug trafficking, no notice of the facts relied on by HPD in reaching its determination, and no advice of his right to the Article 78 relief, due process requires that respondent be permitted to litigate his family-member succession entitlement as a defense to the City's holdover proceeding".
It is clear that both the Appellate Term and the Appellate Division rejected petitioner's blanket assertion that in a holdover proceeding in the Housing Part of the Civil Court HPD need not justify its determinations made at the administrative level. Petitioner's insistence that the court lacked jurisdiction to examine the administrative record resulted in an absence of evidence as to what occurred at HPD. The appellate courts have now directed the parties to remedy the undeveloped record and elucidate this issue at a new trial:
Title to the subject premises was transferred to Elsmere, Ltd., a non-profit partnership, on June 28, 1996. The Appellate Division further held that the transfer to a private owner obviated any concerns that respondent should first bring an Article 78 proceeding before seeking judicial relief, even in the absence of a formal substitution under CPLR 1018.
The issues before the court are whether the remand language of the Appellate Division providing for a new trial supersedes the stipulation permitting entry of judgment absolute against petitioner upon affirmance of the Appellate Term order. If a new trial should be held, the court must further determine whether the petitioner may maintain this proceeding given that title to the building has been transferred.
All appeals from the appellate term to the appellate division are governed by CPLR 5703, which provides in pertinent part:
(a) From appellate terms. An appeal may be taken to the appellate division, from an order of the appellate term which determines an appeal from a judgment or order of a lower court, by permission of the appellate term or, in the case of refusal, of the appellate division. When permission to appeal is sought from an order granting or affirming the granting of a new trial or hearing, the appellant shall stipulate that, upon affirmance, judgment absolute may be entered against him. (Emphasis added).
Pursuant to the above provision, an appeal to the appellate division can only proceed if an appellant agrees that judgment absolute may be entered against him, upon affirmance of the appellate term order granting a new trial.
Respondent argues that the provision for a new trial and the stipulation for judgment absolute in CPLR 5703(a) is the counterpart of CPLR 5601(c), appeal to the court of appeals as of right, and CPLR 5602(b)(2)(iii), appeals to the Court of Appeals by permission (citing Siegel, CPLR 5703 Practice Commentaries C5703:1, at 567). Both CPLR 5601(c) and 5602(b)(iii) provide that where the appellant stipulates that, upon affirmance of an order granting a new trial, judgment shall be entered against him.
In response, petitioner argues, without supplying any authority, that the use of the word "may" in CPLR 5703 demonstrates that there is no mandate requiring the Appellate Division to enter judgment absolute, even if the order granting a new trial has been affirmed. Petitioner contends that the use of the word "may" in CPLR 5703 as opposed to the use of the word "shall" in CPLR 5601(c) or 5602(b)(iii) distinguishes it sufficiently, giving the Appellate Division greater discretion. Petitioner concludes that therefore the Appellate Division order remanding for a new trial contradicts neither the statute nor the stipulation.
The consequences of the requirement that judgment absolute pursuant to both CPLR 5601(c) and 5602(b)(iii) be entered against the appellant are severe:
... This means that if the Court of Appeals finds the appellate division to be within its powers in granting a new trial, and hence affirms the order granting it, it will not mean a new trial at all; it will mean that the appellant has lost everything: the trial court judgment that the appellant wanted to reinstate as well as the second chance (the new trial) that the appellate division had offered (Siegel, New York Practice § 527, 2d ed. at 821).
Indeed, case law shows that upon affirmance by the Court of Appeals of Appellate Division orders remanding for a new trial, the court enters judgment absolute against the appellant based upon the stipulation (Kuci v. Manhattan and Bronx Surface Transit Operating Authority, 88 N.Y.2d 923, 646 N.Y.S.2d 788, 669...
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