Huggins v. Randolph

• Decision Date: 10 July 2014
• Citation: 991 N.Y.S.2d 735,2014 N.Y. Slip Op. 24184,45 Misc.3d 521
• Parties: Norris HUGGINS, Petitioner, v. Julian RANDOLPH and Ashley Richmond, Respondents.
• Court: New York Civil Court

45 Misc.3d 521

991 N.Y.S.2d 735

2014 N.Y. Slip Op. 24184

Norris HUGGINS, Petitioner,

v.Julian RANDOLPH and Ashley Richmond, Respondents.

Civil Court, City of New York.

July 10, 2014.

Davis, Ndanusa, Ilhlas & Saleem, LLP by: Tarik Davis, Esq., Brooklyn, N.Y., for Petitioner.

Respondents pro se.

SUSAN F. AVERY, J.

In this licensee proceeding, respondent, Ms. Ashley Richmond, moves by order to show cause to stay execution of the warrant of eviction. Respondent, Mr. Julian Randolph, is the son of the petitioner. Respondent-movant, Ms. Ashley Richmond, is the mother of two (2) of the petitioner's grandchildren. ¹ Petitioner is the tenant of record of the premises which are the subject of this action. Counsel for the petitioner previously informed the court that the petitioner is 72 years of age.

Previously, counsel for petitioner moved for summary judgment.² In his affidavit in support of his motion for summary judgment, petitioner stated that he feared his son and that he cannot return home until his son is removed from the premises. He stated that “my son has in the past threatened my health and safety, forced me to sign a power of attorney and taken other steps to put me in fear of him.” ³

Additionally, in support of his motion for summary judgement, petitioner submitted an affidavit of Ms. Martha John. In her affidavit, Ms. John stated that she is the owner of the building in which the subject premises is located, and that Mr. Huggins is her brother, and has been the tenant of record at the premises since before March of 2007, at ¶¶ 2–3 (prior to her ownership of the building).

In opposition to petitioner's motion for summary judgment, respondents orally argued that the allegations in petitioner's affidavit are incorrect and that “an aunt of theirs” (presumably Ms. John) forced petitioner to commence this proceeding.

As, the petitioner met his evidentiary burden, this court granted summary judgment in petitioner's favor and permitted the warrant of eviction to issue forthwith. Noting that elder abuse is alarmingly on the rise, this court declined to stay execution of the warrant.

The markings on the court file indicate that the warrant of eviction issued on June 6, 2014. Subsequently, respondent, Ms. Ashley Richmond, filed an order to show cause seeking a stay of execution of the warrant of eviction. The application was returnable on June 26, 2014. On that date, petitioner failed to appear. However, since service of the order to show cause was untimely, this court denied the motion. Ms. Richmond then filed the instant order to show cause seeking a further stay of the execution of the warrant of eviction.

Because of the seriousness of the allegations Ms. Richmond asserted in her applications, this court will consider all of Ms. Richmond's submissions in reaching the instant decision.

In support of her prior application, movant attached two (2) un-notarized documents in addition to her affidavit. As the documents are not notarized, they are of nominal evidentiary value. However, because in this proceeding there are serious allegations of a senior in fear of returning to his home as a result of the respondents' behavior, coupled with the strong statements contained in the documents, these allegations will be considered by the court.

The first document submitted with Ms. Richmond's initial application is a letter, purported to be signed by Mr. Clayton A. John. Mr. John claims to be the landlord of the subject premises and states that he has not seen Mr. Julian Randolph at the premises since April 29, 2014.⁴ At oral argument on July 8, 2014, Ms. Richmond requested to submit into evidence, additional statements that she claimed support her contention that Mr. Randolph no longer resides at the premises. As discussed below, since Mr. Randolph's occupancy at the premises is irrelevant to the determination of this court, this court declined to accept the document(s) into evidence.

The second document submitted by Ms. Richmond in her prior application, is a two (2) page statement, with her name appearing on the bottom of the second page above a signature line. This court finds the assertions in her statement, as well as the allegations in her affidavit, to be quite disturbing.

In her affidavit in support of her prior application, Ms. Richmond stated that the co-respondent, “Julian Randolph does not reside in the apartment anymore and I have further proof of perjury by the petitioner” (at ¶ 3). Additionally, Ms. Richmond states “I have clear evidence of perjury on the petitioner's behalf” (at ¶ 3). Similarly, the last sentence of the first paragraph of her two (2) page statement reads as follows: “I have discovered evidence that proves the petitioner has committed perjury.” In the next paragraph, Ms. Richmond states: “[o]n 10/14/2013 ⁵ Julian, our children and I visited Norris at the hospital. At that time we spoke clearly about the details about this case. Both parties consented to a recording. In this recording⁶ that is 8 min. 35 sec. Norris Huggins clearly states that he is not and has never been in fear of his life. Norris also states that he never told his lawyer that he was in fear.”

The third paragraph of Ms. Richmond's statement claims that Mr. Randolph no longer resides at the premises and has not resided at the premises since April 29, 2014.⁷ Ms. Richmond then concludes that “even if Norris changes his mind about being in fear of his son, the fear' has been removed. Norris is welcome to be in his apartment and always has been. His sister Martha John is threatening Norris to evict his son and family [based upon her jealousy].” ⁸

In the second to last paragraph of her statement, Ms. Richmond states: “I personally have been nothing but kind to Norris by going above and beyond to ensure his well being .... at the time I was caring for Norris everyday, I was pregnant.”

In the affidavit in support of the application currently before the court, Ms. Richmond states: “I am asking to be able to stay at the residence based on I have proof ( sic) of perjury on the petitioner's behalf” (¶ 3b); and “Julian moved to CA because we separated due to the extreme amount of stress this case has put on our family and relationship” (¶ 4).

Combining Ms. Richmond's submissions in support of her applications, Ms. Richmond believes that she is entitled to continued occupancy of the premises because: (1) Mr. Randolph, the source of petitioner's fear, moved out; (2) petitioner lied (presumably about being in fear of Mr. Randolph); (3) at some point, Ms. Richmond was petitioner's daily caretaker; and (4) as a result of commencing this action, petitioner caused her and Mr. Randolph to separate.

Notwithstanding the strong language in her submissions, at oral argument, Ms. Richmond, seemed to soften her position and requested three (3) months to vacate the premises.

Petitioner orally opposed respondent's application. Counsel for the petitioner stated that his client did not authorize him to agree to provide respondents any additional time to vacate the premises. Additionally, Mr. Davis, counsel for the petitioner, strongly objected to granting respondents three (3) months to vacate the premises.

Following petitioner's oral opposition to Ms. Richmond's request for a three (month) stay of execution of the warrant of eviction, Ms. Richmond then requested two (2) months to vacate. Ms. Richmond gave no reason for her change of mind and her current willingness to vacate the premises. However, as the parties were unable to enter into a stipulation, this court adjourned the matter from July 8, 2014 to July 10, 2014, for the court to issue its decision on the record.

Previously in a decision dated April 9, 2014, this court granted petitioner's motion for summary judgment. This court's decision not to grant any stay of execution of the warrant of eviction was largely based upon the petitioner's allegations of elder abuse. It must be emphasized that “[t]he protection of elderly persons from abuse and exploitation is a matter of significant public concern. [E]lder abuse, including the financial exploitation of elderly individuals ... is an often well hidden problem, in part because the perpetrator of such conduct is in many cases a member of the victim's family” ⁹

While “[e]fforts to redress elder abuse are still in their infancy” ¹⁰ “[e]ffective interventions can prevent or stop elder abuse.” ¹¹ Indeed, “[i]n cooperation with the New York City Police Department, Adult Protective Services (“APS”), the New York City Department for the Aging, medical professionals and social service agencies, The Elder Abuse Unit of the New York County District Attorney's Office investigates and prosecutes all kinds of crime involving elderly victims.” ¹² Additionally, “[i]f our community is serious about protecting its most vulnerable adults, new initiatives and coordinated strategies must ... be developed and implemented.” ¹³

Many states recognize an independent cause of action predicated upon an allegation of elder abuse.¹⁴ While the Penal Law of New York State makes it a crime for a caretaker to endanger the welfare of a vulnerable senior person,¹⁵ New York State does not have a statute recognizing an independent civil cause of action predicated upon an allegation of elder abuse. ¹⁶ However, case law supports, that the courts, as part of the community, need not wait for the enactment of such a statute. Rather, as ordered by Judge A. Gail Prudenti, as the Presiding Justice of the Appellate Division, “[i]t is an old, old principle that a court, even in the absence of express statutory warrant, must not allow itself to be made the instrument of wrong ...” ¹⁷ Therefore, in compliance with Justice Prudenti's mandate in Campbell, it is incumbent upon judges and court personal to recognize the signs of possible elder abuse and act to protect society's vulnerable seniors ¹⁸ (a vulnerable senior, as defined by the Penal Code is “a person 60 years of age or...