Malaczynski v. Wittmann

• Decision Date: 05 April 2022
• Docket Number: 2022-30941,Index L&T 66592/19
• Parties: BOGUSLAW MALACZYNSKI, Petitioner, v. CHARLES WITTMANN, EMILIADIA HANSEN, Respondents.
• Court: New York Civil Court

BOGUSLAW MALACZYNSKI, Petitioner,
v.
CHARLES WITTMANN, EMILIADIA HANSEN, Respondents.

No. 2022-30941

Index No. L&T 66592/19

Civil Court of the City of New York

April 5, 2022

Unpublished Opinion

Adam Fertig, Esq.

Attorney for Petitioner

Mi Chau, Esq.

Marisa Imazu, Esq.

New York Legal Assistance Group

Attorneys for Respondents

DECISION/ORDER AFTER HEARING UPON MOTION

Clinton J. Guthrie, Judge

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to declare the hardship declarations invalid, for a status conference, and for amendment of the warrant of eviction:

Papers	Numbered
Notice of Motion & Affidavit/Exhibits Annexed.....................................	1 (NYSCEF #3-7)
Affirmation in Opposition & Affidavits/Exhibits Annexed.........................	2 (NYSCEF #8)
Hearing Exhibits (1, A-B)..............................................................	3-5

Upon the foregoing cited papers and the hearing conducted on multiple dates (November 19, 2021, December 10, 2021, January 7, 2022, and February 4, 2022), the decision and order on petitioner's motion is as follows.

PROCEDURAL HISTORY

The court refers to the Procedural History in this court's November 17, 2021

1

Decision/Order. ^[1] By that Decision/Order, the court granted petitioner's instant motion to the extent of deeming the "conference" requirements under the applicable law and administrative orders satisfied and awarding a hearing on the validity of respondents' hardship claims. The hearing was conducted on four dates (referenced above) between November 19, 2021 through February 4, 2022. Official Polish court interpreters were present for all testimony. Prior to the February 4, 2022 court date, respondents, through counsel, filed an order to show cause to stay execution of the warrant after a marshal's notice of eviction was served. By Decision/Order of the same date (February 4, 2022), the court granted the order to show cause to the extent of quashing the marshal's notice and staying execution of the warrant pending the issuance of an order resolving the instant motion. Both sides rested for the purposes of the hearing on the same date and decision was reserved.

HEARING

I. November 19, 2021 testimony.

Petitioner called two witnesses, the respondents Emiliadia Hansen and Charles Wittmann. Respondents' attorneys cross-examined both witnesses, but respondents called no witnesses. Ms. Hansen testified first. Ms. Hansen testified to the following. She has lived at the subject premises since September 2018 and lives there with Mr. Wittmann, her partner. She rented the apartment with Mr. Wittmann, and at the time of the rental, she was working as an event coordinator and Mr. Wittmann was working as an energy salesman and waiter. When asked whether their jobs changed in March 2020, Ms. Hansen testified that she was laid off as a result of the COVID-19 pandemic and that Mr. Wittmann was laid off from both of his jobs (though she could not recall precisely

2

when he was laid off).

Next, Ms. Hansen was questioned about her tax returns. She testified that neither she nor Mr. Wittmann filed tax returns in 2018. In 2019, she filed a tax return, but Mr. Wittmann did not. When asked if her job as an event coordinator was paid by check, she responded that it was. However, she testified that she did not know if Mr. Wittmann was paid by check. Other than work income for her and Mr. Wittmann, Ms. Hansen further testified that she had no income between September 2018 to March 2020. When asked if she and Mr. Wittmann maintained checking or savings accounts during that period (September 2018-March 2020), Ms. Hansen testified that she last had a Chase account that closed in 2014. She also testified that she and Mr. Wittmann do not share financial information with each other and that they keep their finances separate.

Next, petitioner introduced its Exhibit 1, which Ms. Hansen recognized as a copy of her 2019 federal tax return. After Ms. Hansen testified as to the filing of the original return and the tax return was admitted as petitioner's Exhibit 1. Certain contents of the tax return were then acknowledged by Ms. Hansen, including a reported income of $35, 263.00 in 2019. When asked about the inclusion of Mr. Wittmann as a dependent on the tax return, Ms. Hansen testified that she was the head of household and Mr. Wittmann did not make enough income to file taxes. Ms. Hansen explained, upon a further question invoking her earlier testimony about not sharing financial information with Mr. Wittmann, that while they communicate about finances.

Ms. Hansen next testified to the nature of her work and her deductions while she was working as an event coordinator. She stated that she did not have typical hours and that they varied week to week. Her deductions in 2019 were for social security taxes, federal taxes, state tax, and paid leave tax. She stated that she paid out-of-pocket for health insurance and that it cost $ 100 per

3

month. Ms. Hansen then testified that she then (at the time of the hearing) had Medicaid and had it for the past year.

Next, Ms. Hansen was asked about her expenses in 2019. She stated that she paid $1, 100.00 for rent. She did not pay utilities but was responsible for $40 per month during the summer for air-conditioning. She also stated that she paid for internet in 2019 and also at the time of the hearing. She owned a car, but the car (a 2005 Ford Explorer) was paid off prior to 2019. She also confirmed that she paid insurance on the car in 2019 and at the time of the hearing, with the cost of insurance at $500.00 in 2019. Ms. Hansen then testified about medical bills for her mother, who was treated for leukemia. She stated that she paid between $5, 000.00 and $10, 000.00 towards those bills in 2019. However, she stated that she had not made regular payments towards these bills since March 2020, paying less than $2, 000.00. Ms. Hansen also testified to recurring expenses for a cell phone, dentistry, internet, and physical therapy in 2019; when questioned, though, she stated that she was not paying similar amounts for her expenses since she no longer had the finances to do so (paying, as she described it, "$25 here, $50 there").

Petitioner's attorney then asked Ms. Hansen general questions about...