Nycha Coney Island Houses v. Ramos
| Decision Date | 16 September 2013 |
| Citation | 41 Misc.3d 702,971 N.Y.S.2d 422,2013 N.Y. Slip Op. 23309 |
| Parties | NYCHA CONEY ISLAND HOUSES, Petitioner, v. Arcadio RAMOS, Respondent. |
| Court | New York Civil Court |
OPINION TEXT STARTS HERE
Kelly MacNeal, Acting General Counsel, by James E. Bayley, of Counsel, New York, for petitioner.
Steven Banks, Attorney–in–Chief, The Legal Aid Society, Brooklyn Neighborhood Office, by Stephen Myers, of Counsel, Brooklyn, for respondent.
In this nonpayment proceeding respondent filed an answer in person, dated August 15, 2011, alleging a “general denial” to the allegations of the petition and stating that “there are conditions in the apartment which need to be repaired and/or services which the [p]etitioner has not provided” see, answer dated August 15, 2011, at ¶ 10. The matter first appeared on this court's calendar on August 22, 2011. On that date, the matter was adjourned to October 11, 2011, . On October 11, 2011, the case was adjourned to November 29, 2011, for an “APS referral.” On that date, the respondent failed to appear, and judgment was entered against the respondent.
On November 30, 2011, the respondent filed a self represented Order to Show Cause, seeking to vacate his default from the previous day. The application was “withdrawn” and the court file contains a marking “[because] no warrant has been issued.” Thereafter, by Order to Show Cause dated January 17, 2012, the Legal Aid Society sought to vacate respondent's November 29, 2011, default. The Order to Show Cause was initially returnable on January 26, 2012. In support of the Order to Show Cause, was an affidavit from the respondent, but a notice of appearance by the Legal Aid Society, amended answer, or proposed amended answer was not filed.
On January 26, 2012, the Order to Show Cause was adjourned, by a “two attorney” stipulation, to March 13, 2013. The stipulation required petitioner to “inspect and repair” the “ceiling leak over the toilet, defective bathroom vent, apartment windows, which do not stay up, mold in the hallway, plaster and paint the entire apartment and hole in the pipe underneath the kitchen sink.” The stipulation also authorized respondent's attorney to communicate directly with petitioner's Assistant Manager to arrange access dates for the repairs.
On March 13, 2012, the Order to Show Cause was adjourned, by a “two attorney” stipulation to April 23, 2012. The stipulation required petitioner to inspect and repair: the ceiling leak over the toilet, defective bathroom vent (“not venting out”) mold in the hallway, and to plaster and paint the entire apartment. The stipulation provided for one day of access (March 23, 2012) with “further access to be arranged” and contained a(n unidentified) telephone number. On April 23, 2012, the Order to Show Cause was adjourned, by a “two attorney” stipulation to May 15, 2012. The stipulation required petitioner “complete outstanding repairs.” The repairs were listed as follows: “(a) leak over the toilet, (b) mold in the hallway [and] (c) bathroom vent defective.” Three (3) access dates were scheduled with additional access to be arranged with the listing of two (2) (unidentified) telephone numbers.
On May 15, 2012, the Order to Show Cause was adjourned, by a “two attorney” stipulation to June 18, 2012. The stipulation required petitioner “to inspect repairs as necessary.” The repairs were listed as follows: “(1) ceiling leak over the toilet, (2) mold in the hallway [and] (3) bathroom vent defective.” Three (3) access dates were scheduled with additional access to be arranged, with the listing of two (2) (unidentified) telephone numbers.
On June 18, 2012, the Order to Show Cause was adjourned to July 10, 2012, pending a June 25, 2012, inspection of the premises by the Department of Housing Preservation and Development (“DHPD”). Listed on the Request for Inspection were the following conditions: “mold on walls in the bathroom and the bathroom vent not working, bathroom pipe leaks, hallway walls have mold and the window chain in the living room and small bedroom.” The return of the inspection report showed violations for the window chains and the mold on the bathroom wall; and no violations were reported for the bathroom vent, bathroom pipe and mold on the hallway wall.
By a “two-attorney” stipulation, dated July 10, 2012, respondent's Order to Show Cause was granted on consent and respondent's default was vacated, the petition was amended to date, to seek $4,509.00 and the case was further adjourned to July 31, 2012, for “trial/settlement.” The stipulation did not address any conditions in need of repair in the apartment. On July 31, 2012, the matter was further adjourned to September 10, 2012 “for trial.”
By a “two-attorney” stipulation, on September 10, 2012, the matter was adjourned to October 22, 2012, “for trial.” The stipulation also provided that on October 8, 2012, the petitioner was required to “reinspect the alleged mold condition.”
On October 22, 2012, the court file indicates that the matter was further adjourned to November 19, 2012.
By a “two-attorney” stipulation dated November 19, 2012, the case was adjourned to January 8, 2013, with no purpose given, and the stipulation was silent as to repairs/conditions.
A copy of an email dated January 7, 2013, is in the court file. The email states that it was sent by Ms. Mimi Rosenberg of the Legal Aid Society to Mr. James Bayley counsel for the New York City Housing Authority, and reads as follows:
“[t]hank you for your cooperation in adjourning to 2/25 ( sic ) the abatement hearing scheduled for 1/8 ( sic ) for Arcadio Ramos. ....I will try to and would appreciate it if NYCHA management might notify Mr. Ramos not to come to court as he is quite ill and a needless strain on him if it can be avoided would be considerate.”
On February 25, 2013, by a “two attorney stipulation” the preceding was further adjourned to April 15, 2013, for “trial or resolution” as “respondent is hospitalized today.” The stipulation was silent as to whether conditions in need of repair existed in the apartment.
On April 15, 2013, the case was transferred to the Expediter (Part X) with a notation on the Transfer Order that “resp[ondent] wants an abatement pet [itioner]er does not offer anything at this time.” The markings on the court file show that the case was adjourned in Part X to June 3, 2013, and then to July 15, 2013.
On July 15, 2013, by a “two attorney” stipulation, executed in Part A, the matter was adjourned “until 8/19/13 ( sic ) for petitioner to serve opposition papers...” The stipulation was not “so-ordered”. By Order to Show Cause dated July 11, 2013, respondent, through counsel, commenced the instant application.
Respondent, through counsel, moves by Order to Show Cause for an Order granting respondent leave to interpose an amended answer (annexed to the moving papers), and deeming said proposed amended answer to have been properly served. Petitioner opposes the motion.
The proposed amended answer seeks to add a “FIRST AFFIRMATIVE DEFENSE” ( caps in original ) alleging that there are conditions in need of repair in the apartment, including the ten (10) specifically enumerated in the proposed pleading (at ¶ 2) along with the allegation of “sporadic elevator service” (at ¶ 3), which “constitute a breach of the warranty of habitability entitling respondent to an abatement of the rent ...” (at ¶ 4).
The proposed “SECOND AFFIRMATIVE DEFENSE” ( caps in original ) alleges that as a result of damage caused by Hurricane Sandy, the building was without water, heat and electricity (at ¶ 5); the lack of electricity caused there to be “no elevator service” (at ¶ 6); the subject premises is located on the 13 Floor (at ¶ 6); and “[r]espondent was constructively evicted from the subject premises for a period of five [5] weeks.”
The proposed pleading also asserts a “counterclaim” seeking an Order directing the petitioner to “correct such conditions as ( sic ) constitute a violation of the Housing Maintenance Code.”
The “WHEREFORE” clause of the proposed pleading seeks a “judgment dismissing the petition with prejudice” and an Order directing the petitioner to correct the conditions constituting violations of the Housing Maintenance Code.
In his affidavit in support of his motion, respondent argues that throughout this proceeding, and during the course of a prior proceeding (L & T No.: 30876/2009), respondent has been requesting that petitioner inspect and repair “certain, very specific repairs to my apartment” (Ramos Affidavit at ¶ 3). Therefore, respondent concludes, there will be no surprise or prejudice to the petitioner if the respondent's motion was granted and the proposed answer was interposed.
Petitioner opposes the motion arguing, that the application was brought on the “eve of trial” (Bayley affirmation at ¶¶ 2, 4) that this nonpayment proceeding was commenced in 2011, counsel for the respondent has been representing the respondent in this case since January 2012 (more than one and a half years prior to the commencement of the instant motion) and there is no “reasonable excuse” alleged for respondent's counsel's delay in seeking the instant relief.
Alternatively, petitioner argues, that if respondent is granted leave to interpose the proposed answer, the amended answer should be limited to the three (3) conditions that respondent mainly complained about,...
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