Highbridge House Ogden LLC v. Del Valle
| Decision Date | 22 February 2017 |
| Docket Number | No. 5473/2015.,5473/2015. |
| Citation | 54 N.Y.S.3d 610 (Table) |
| Parties | HIGHBRIDGE HOUSE OGDEN LLC, Petitioner–Landlord, v. Doreen DEL VALLE, Respondent–Tenant. |
| Court | New York Civil Court |
Cullen & Associates, P.C., New York, Attorney for Petitioner.
Sharone Miodovsky, Esq., The Legal Aid Society, Civil Practice—Housing Help Program, Bronx, Attorney for Respondent.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Vacate Stipulation of Settlement Dated April 13, 2016:
| Papers | Numbered |
| Order to Show Cause, Affirmation & Exhibits A–E | 1 |
| Affirmation in Opposition & Exhibits A–D | 2 |
| Affirmation in Reply | 3 |
This is a nonpayment proceeding brought by petitioner-landlord Highbridge House Ogden against Rent Stabilized respondent-tenant Doreen Del Valle. The Petition, dated January 16, 2015, sought rent arrears at the rate of $1405.30 per month for the months of December 2014 and January 2015, plus a balance of $205.24 due for the month of November 2014. Respondent pro se used the court's form to file an Answer to the Petition on February 5, 2015 raising a "General Denial" and a defense of conditions in her apartment that needed to be repaired. Petitioner by counsel and Respondent pro se settled the case at the initial court appearance on February 10, 2015 in an agreement which awarded Petitioner a final judgment in the amount of $4279.64, with issuance of a warrant of eviction forthwith, execution stayed through March 27, 2015 for Respondent to pay the judgment. The agreement also included access dates for repairs.
Respondent took out an order to show cause seeking an extension of her payment deadline, which the court granted by order dated May 8, 2015 to the extent of staying execution of the warrant of eviction through June 8, 2015 for payment of $6808.04. Respondent took out a second order to show cause on June 18, 2015, supported by a letter from a Case Manager at "BronxWorks Home Base" which noted that Respondent had been issued a lease in 2014 with a monthly rent of $1405.30, that the rent registered with the DHCR (New York State Division of Housing and Community Renewal) in 2014 was $719.75 and that Respondent had been referred for legal assistance. Copies of two other documents pertaining to her tenancy supported Respondent's order to show cause: (1) the first and last pages of her lease dated April 11, 2014, running for a two-year term through March 31, 2016; and (2) the DHCR's rent registration statement as of June 12, 2015, reflecting that the apartment initially had been registered in 2005 in the name of tenant Dinah Owusu with a "Legal Regulated Rent" (LRR) of $591, that it was thereafter registered in the same tenant's name through and including 2012 when the LRR was $679.75, and that it then was registered in 2013 and 2014 with a LRR of $719.75 and an "Apartment Status" of "VA" (vacant).
Respondent retained counsel and, after several adjournments, her second order to show cause was settled in an agreement which vacated the February 10, 2015 stipulation of settlement, the May 8, 2015 court order and the judgment and warrant. Thereafter the proceeding was adjourned a number of times for settlement or trial until it was settled on April 13, 2016 in an agreement under which a final judgment in the amount of $18,186.84—all rent due through April 30, 2016—was entered in favor of Petitioner, with a warrant of eviction issued forthwith, execution stayed through May 29, 2016 for payment. The stipulation further provided that Respondent acknowledged a legal monthly Rent Stabilized rent of $1405.30, that Petitioner was permitted to register that rent with the DHCR and base all future increases on it, and that Respondent would be given a preferential monthly rent of $1050 for the two-year period running from May 1, 2016 through April 30, 2018.
Shortly prior to the payment deadline, Respondent's counsel filed an order to show cause returnable June 9, 2016 seeking to vacate the stipulation of April 13, 2016 or, in the alternative, to stay execution of the warrant of eviction to allow for a "FEPS" (Family Eviction Prevention Subsidy) application to be processed by the State. This motion was adjourned a number of times for briefing and possible settlement until, eventually, it was argued and deemed submitted on February 2, 2017.
In his affirmation, Respondent's counsel argues that the stipulation should be vacated as it was based upon a mistake of law. Respondent's counsel asserts that neither he nor his client knew at the time of the settlement that there was a complaint pending at the DHCR which, approximately one month after the date of the settlement, resulted in the DHCR's issuance of an "Order Reducing Rent for Rent Stabilized Tenants" (copy attached to Respondent's moving papers as Exhibit B). The Order, issued on May 18, 2016, references a "decrease in services" complaint filed by various tenants on August 21, 2015. The Order notes that the DHCR conducted inspections on December 14, 2015 and January 6, 2016 and found that Petitioner had failed to maintain certain building-wide services: "lighting in stairs; doors at stairwells; janitor service bldg. wide; water leaks basement; baseboard public area; smoke detector; community room ceiling; playground area; storage service; compactor; security guard; door person." Based on these service reductions, the DHCR determined that, "The legal regulated rent is reduced to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this Order," except for (1) Major Capital Improvement (MCI) increases which already were being collected before the issuance date (May 18, 2016) of the rent reduction order; and (2) Individual Apartment Improvement (IAI) increases which already were being collected before the effective date (October 1, 2015) of the Order. The Order states that no other rent increases may be collected until the DHCR issues a "rent restoration order", and directs the owner to restore the services within thirty days. Further, the Order directs the owner "to refund to the tenant(s) all amounts collected in excess of the reduced rent since the effective date of this rent reduction Order". The Order also instructs the parties of their appeal rights: if they "believe this order is based on an error in law and/or fact" they are permitted to file a Petition for Administrative Review (PAR) within 35 days after the issuance of the Order.
Respondent's attorney asserts that, "Had I known the existence of this complaint, I would have moved for a stay pending its determination," Attorney's Affirmation at ¶ 10, and that, "Petitioner knew of the existence of this complaint [b]ut it did not inform Respondent or Respondent's counsel." Id. at ¶ 11. Further, Respondent's attorney posits that the effect of the DHCR's Rent Reduction Order is to reduce Respondent's rent from $1405.30 to $719.75, the prior "legal registered rent", with a resulting significant decrease in the amount of Respondent's rent arrears.
In the alternative, Respondent seeks a further stay of execution of the warrant to allow for the processing of her pending FEPS application and related requests for additional charitable assistance to help pay her rent arrears.
Respondent's moving papers do not include an affidavit from Respondent, and include no assertions as to whether or not the conditions the DHCR found to exist at the premises and on which it based its rent reduction order have yet been corrected.
In opposition, Petitioner's counsel argues that the allegation that neither Respondent nor her attorney was aware of the DHCR complaint does not constitute a mistake of law and that Respondent's counsel "is responsible for being aware of all the facts and circumstances relevant to any action prior to entering into a settlement agreement." Affirmation in Opposition at ¶ 7. Further, Petitioner's counsel attaches to his affirmation as Exhibit B a copy of the tenants' "Application for a Rent Reduction Based Upon Decreased Building–Wide Service(s)" and points out that Respondent's name and purported signature appear on one of the six pages of tenant names and signatures attached to that application, indicating that she must have known that the complaint had been filed and was pending.
Petitioner's counsel also asserts that Petitioner filed a PAR at the DHCR to challenge the Rent Reduction Order, attaches as Exhibit C a copy of the PAR's cover page and argues that the filing of the PAR stays the Order until the DHCR decides the PAR. Petitioner's opposition papers do not include an affidavit of any of Petitioner's employees, nor do they include any indication of the basis for the PAR, whether Petitioner has also filed a rent restoration request and whether or not the conditions the DHCR found to exist at the premises and on which it based its rent reduction order have yet been corrected.
Petitioner's counsel also argues that the alternative relief of a stay of execution of the warrant pending the processing of a FEPS application should be denied, in light of the significant amount of time that already has elapsed since the motion was filed in May 2016.
On reply, Respondent's attorney argues that the stipulation of settlement should be vacated because the court "must enforce a rent reduction order that is still in effect regardless of when it was issued." Reply Affirmation at ¶ 9. Further, Respondent argues that an agreement which waives Rent Stabilization rights is unenforceable.
With regard to Petitioner's filing of a PAR to challenge the DHCR's rent reduction order, Respondent's counsel argues that, "The filing of a PAR has no bearing on whether Petitioner must abide by the rent reduction order currently still in effect," Reply Affirmation at ¶ 16, and that, accordingly, Respondent's rent is frozen at $719.75 "until such time that Petitioner makes an application to restore...
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