Mora v. Cassino

Decision Date19 February 2003
PartiesOLGA MORA, Petitioner,<BR>v.<BR>CARMINE CASSINO, Respondent.
CourtNew York Civil Court

Hartman, Ule, Rose & Ratner, LLP, New York City, for respondent.

Michael K. Brown, New York City, for petitioner.

OPINION OF THE COURT

CYRIL K. BEDFORD, J.

Respondent moves posttrial for an order dismissing the petition for lack of subject matter jurisdiction in that the landlord failed to allege she offered the permanently disabled tenant equivalent accommodations; pursuant to CPLR 4404 (b) setting aside the final judgment and warrant based on evidence of the tenant's disability and ordering a new trial on the issue of the tenant's permanent disability; permanently staying the judgment and warrant based on respondent's permanent disability.

Petitioner opposes the motion and cross-moves for an order directing the respondent to reimburse the petitioner for the reasonable attorney's fees and/or expenses incurred as a result of the petitioner's successful prosecution of the proceeding.

This holdover proceeding seeking recovery of the respondent's rent-stabilized apartment for the petitioner's own use was tried by this court on November 25, 2002 and November 26, 2002. On November 26, 2002 this court rendered its decision on the record granting a final judgment of possession to petitioner with the warrant of eviction issuing forthwith, but staying execution until April 30, 2003. On December 13, 2002 respondent brought the present motion.

CPLR 4405 provides that a posttrial motion under CPLR 4404 (b) be made within 15 days of the decision. More than 15 days have passed since the decision was rendered, as the decision was rendered on November 26, 2002 and the motion was made on December 13, 2002. However, the 15-day rule is not inviolate. A litigant's failure to move timely is not fatal if the litigant can establish good cause for the delay. (Pioli v Morgan Guar. Trust Co. of N.Y., 199 AD2d 144 [1993].) In the affidavit in support of the motion respondent alleges, "Prior to hiring my current attorneys on December 13, 2002, I did not understand that the landlord could not obtain my apartment for her personal use unless she offered me equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area." The court notes however that there is no reason given by respondent for the delay in hiring his attorney. The delay in retaining counsel goes beyond and involves more than just the issue of the passage of the 15 days to make a posttrial motion. Respondent is now seeking to raise issues that could and should have been dealt with before or at trial. Having lost at trial, respondent is in effect seeking to get a "second bite of the apple."

This proceeding was initially adjourned from October 23, 2002 to November 25, 2002 for trial. During this one-month adjournment respondent could have obtained counsel. There is no explanation as to why he did not do so, or how is it that respondent is now able to retain counsel. The delay in retaining counsel appears to be of respondent's own making, and in truth no good cause has been shown for the motion being made beyond the 15 days as respondent could have consulted with an attorney long before December 13, 2002. However as the delay is only a matter of days beyond the 15 days provided in CPLR 4405 and as there exists a strong public policy concerning tenants not being deprived of benefits under rent stabilization, in the exercise of discretion the court will allow and consider the motion.

In the motion respondent claims to suffer from Tourette's syndrome and he receives Social Security disability benefits. Respondent claims and it is correct that neither the notice of nonrenewal nor the petition contain an offer of equivalent housing. The court finds that petitioner did not know of respondent's alleged disability, or have reason to believe that respondent was disabled. Petitioner does not concede that respondent meets the definition of disability as contained in the Rent Stabilization Code (9 NYCRR parts 2520-2531 [RSC]).

RSC § 2524.4 (a) contains the authority for an owner to recover possession of a housing accommodation for his own or his family's use and occupancy. RSC § 2524.4 (a) (2) provides that the right to recover the premises does not apply "where a tenant or the spouse of a tenant lawfully occupying the housing accommodation is a senior citizen or disabled person, as previously defined herein [RSC § 2520.6 (q)], unless the owner offers * * * and provides an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area." There is no indication in the statute when the offer is to be made or whether an allegation that it was made must be included in the notice of nonrenewal or the petition. There is a dearth of case law in this area.

The one appellate case in this area is Fidalgo v Schumm (NYLJ, June 12, 1990, at 25, col 1), where the Appellate Term (2d & 11th Jud Dists) reversed the lower court finding that the notice therein was sufficient to meet the requirements of RSC § 2524.2 since it clearly stated that the landlords were seeking possession for their own personal use. The court indicated that as the tenant was a senior citizen, the landlord was required to offer to the tenant an equivalent or superior housing accommodation at the same or lower stabilized rent in a closely proximate area,...

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4 cases
  • Finney v. Morton
    • United States
    • New York Supreme Court
    • April 4, 2016
    ...such a motion [see Estate of Peterson v. See, 23 Misc3d 1, 3 (Sup. Ct., App Term., 9th and 10th Jud. Dist. 2009); Mora v. Cassino, 196 Misc2d 403, 404-05 (N.Y. Civ. Ct. 2003)]. Indeed, a trial court may freely ignore this fifteen-day time period when it seeks to set aside a decision in a no......
  • Zunce v. Rodriguez
    • United States
    • New York Civil Court
    • October 22, 2008
    ...of the RSC as a Senior Citizen before proceeding to recover the stabilized apartment. (Id.)" Similarly, in Mora v Cassino (196 Misc 2d 403, 405 [Civ Ct, NY County 2003]), the court held that "[t]here is no indication in the statute when the offer is to be made or whether an allegation that ......
  • Borg v. Santos
    • United States
    • New York Civil Court
    • August 20, 2007
    ...their application to the case at bar pertaining to a disabled person has the same force and effect. Similarly, in Mora v Cassino (196 Misc 2d 403, 405 [Civ Ct, NY County 2003]) the court opined that "[t]here is no indication in the statute when the offer is to be made or whether an allegati......
  • Cabrini Blockfront LLC v. J.N.
    • United States
    • New York Civil Court
    • March 27, 2019
    ...appeal has not been submitted or argued, Id. , and a late motion may be permitted by the court for good cause shown. Mora v. Cassino , 196 Misc 2d 403, 404 (Civ. Ct. NY Co. 2002) (Bedford, J.), citing Pioli v. Morgan Guaranty Trust Co of NY , 199 AD2d 144 (1st Dept. 1993).This court is pers......

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