Elliot Place Props., Inc. v. Perez

• Decision Date: 10 November 2016
• Docket Number: 33324/2016
• Citation: 2016 NY Slip Op 51593 (U)
• Parties: Elliot Place Properties, Inc., Petitioner-Landlord, v. Antonio Perez, Respondent-Tenant.
• Court: New York Civil Court

2016 NY Slip Op 51593(U)

Elliot Place Properties, Inc., Petitioner-Landlord,
v.
Antonio Perez, Respondent-Tenant.

33324/2016

Civil Court of the City of New York, Bronx County

Decided on November 10, 2016

Attorney for Petitioner:

Allison M. Heilbraun, P.C.

73 Market Street, Suite 376

Yonkers, New York 10710

(914) 237-3348

Attorney for Respondent:

John Montoute, Esq.

Bronx Legal Services

349 E. 149th Street, 10th floor

Bronx, New York 10451

(718) 928-3697

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Order to Show Cause seeking Vacatur of the Default Judgment and Warrant, Leave to Interpose an Answer and an Order to Correct; or, in the alternative, a Stay of Issuance of the Warrant and Vacatur of the Judgment and Warrant upon Payment:

Papers/Numbered

Order to Show Cause & Attached Affirmation, Affidavit and Exhibits A-F 1

Affirmation in Opposition 2

Affirmation in Reply 3

Upon the foregoing papers, the Decision and Order on this Motion are as follows:

BACKGROUND & PROCEDURAL HISTORY

This is a nonpayment proceeding commenced by Petitioner-Landlord Elliot Place Properties, Inc. against Respondent-Tenant Antonio Perez, the Rent Stabilized tenant at 38-42 Elliot Place, Apt. 2F, Bronx, New York 10452, by Notice of Petition and Petition dated June 1,

Page 2

2016. The Petition seeks alleged rent arrears of $3272.72 comprised of rent at the rate of $934.52 for the months of March, April and May 2016 plus a balance of $319.16 for the month of February 2016. As sworn to in the process server's Affidavit of Service which was filed with the court on June 16, 2016, personal service of the Notice of Petition and Petition was effectuated on Respondent on June 13, 2016, a judgment was entered on default on July 8, 2016, and a warrant was issued to City Marshal Bia on July 26, 2016. A week later, on August 2, 2016, Respondent pro se filed an Order to Show Cause to vacate the default judgment and restore the case to the court's calendar. Respondent supported his Order to Show Cause with an affidavit in which he acknowledged receipt of the Notice of Petition and Petition and stated, "Need more time, & also rent was paid, but still being charged as nonpaid." The Order to Show Cause was signed and made returnable on August 16, 2016, at which time the case was adjourned to September 14, 2016 for Respondent, now represented by counsel, to serve and file supplemental papers. On September 14, 2016, counsel for the parties entered into a Stipulation under which the Order to Show Cause filed by Respondent pro se was withdrawn, a second Order to Show Cause, prepared by Respondent's attorney and signed by the Court on September 8, 2016, was adjourned to October 20, 2016, Respondent's counsel was given until October 17, 2016 to serve and file a reply to Petitioner's opposition papers, Respondent agreed to tender $1970.52 to Petitioner by September 30, 2016, comprised of three months' rent at the rate of $656.84 per month, without prejudice to Petitioner's claim that the monthly rent was $948.14, and Petitioner agreed to inspect and repair as required by law certain conditions in Respondent's apartment on specified access dates.

Respondent seeks vacatur of the default judgment under CPLR § 5015(a)(1) based upon a showing of excusable default and meritorious defenses. The excuse proffered for the default is that Respondent is elderly (72 years old), disabled due to a heart attack in October 2015 for which he was hospitalized until March 2016, has limited proficiency in the English language, has a limited income of Social Security benefits, had been paying his share of the rent during all months in question at the rate set by the City's Senior Citizen Rent Increase Exemption ("SCRIE") Program in 2010, believed that his SCRIE benefits were still in place and, while he had received the Nonpayment Petition and Notice of Petition, was confused about how to answer it and thought he would "receive another document providing the court date." Respondent's Affidavit in Support of Order to Show Cause, dated September 6, 2016 (hereinafter "Respondent's Affidavit"), at ¶ 13. The three defenses Respondent asserts, which are included in the proposed Answer he seeks leave to interpose upon vacatur of the default judgment, are: (1) "Rent Already Paid"; (2) "Improper Rent Demand"; and (3) "Violation of the Warranty of Habitability". Respondent also requests an Order to correct conditions that he alleged had existed for approximately two months and which he had previously complained about to Petitioner, including a broken front door knob, ceiling falling down in the living room, clogged sink in the bathroom, defective stove and refrigerator and leaks in the bathroom, kitchen and bedroom. In the alternative, Respondent seeks a stay of issuance of the warrant of eviction to provide time to secure retroactive restoration of his SCRIE benefits, which appear to have lapsed due to Respondent's failure to recertify by December 2015 (when he was in the hospital recovering from the heart attack), and vacatur of the judgment and warrant upon payment of the rent arrears.

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

Page 3

CPLR § 5015(a)(1). Petitioner states that because Respondent acknowledged receipt of the Notice of Petition and Petition, and because the Court routinely sends out postcards to Respondents prior to the issuance of a default judgment to apprise them of the pending case, Respondent has not met his burden of showing that his default was excusable. Petitioner argues that, "Had Respondent or his daughter read the Pleadings it is clear that they indicate that an Answer must be interposed with the Court." Affirmation in Opposition of Allison Heilbraun, dated September 9, 2016 (hereinafter "Affirmation in Opposition"), at ¶ 8. With regard to meritorious defenses, without discussing why any of the three defenses listed in Respondent's proposed Answer are insufficient, Petitioner argues that Respondent has failed sufficiently to document the efforts being taken to secure retroactive reinstatement of Respondent's SCRIE benefits, and that this should result in a finding that Respondent has failed to establish a meritorious defense. Petitioner also argues that Respondent should not be permitted to interpose an Amended Answer under CPLR § 3025, as Petitioner would be severely prejudiced by the vacatur of the judgment it secured on default "as it has already obtained a valid judgment and warrant in this proceeding and must not be required to relitigate a proceeding that has been pending for four (4) months." Affirmation in Opposition at ¶ 6. Petitioner also argues that there is no basis for ordering it to address Respondent's need for repairs at this juncture. Petitioner asserts that a review of the New York City Department of Housing Preservation and Development's ("HPD") website "reveals that 5 'B' violations have been placed on August 31, 2016"¹ and that Respondent appears to be "Clearly acting in bad faith" by using "the month that was afforded to him as a courtesy in the adjournment to have violations placed." Affirmation in Opposition at ¶ 20. Petitioner's opposition papers do not address Respondent's claim in his affidavit that he had complained about the conditions in his apartment approximately two months earlier, and do not include an affidavit from anyone with personal knowledge of the facts of this case.²

On reply, Respondent's attorney argues that while Respondent did acknowledge receipt of the Notice of Petition and Petition, he and his daughter did not know how to respond to the papers, and that his default was not willful or deliberate but instead the result of him being "an elderly, disabled, LEP individual being confused by the Pleadings." Reply in Opposition to Petitioner's Opposition Affirmation of John Montoute, dated October 18, 2016 (hereinafter

Page 4

"Reply...