Project Renewal, Inc. v. Rodriguez
| Decision Date | 02 November 2016 |
| Docket Number | 48981/2015 |
| Citation | 2016 NY Slip Op 51587 (U) |
| Parties | Project Renewal, Inc., Petitioner (Overtenant), v. Noel Rodriguez and Shamkia Hill, Respondents (Undertenants). |
| Court | New York Civil Court |
Attorney for Petitioner:
Kellner Herlihy Getty & Friedman, LLP
New York, New York 10016
(212) 889-2821
Respondent Noel Rodriguez, Pro Se
Respondent Shamkia Hill, Pro Se
Thomas Giles, GAL
515 West 151st Street, Apt. # 5W
New York, New York 10031
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Order to Show Cause returnable October 31, 2016:
Papers/Numbered
Order to Show Cause & Attached Affidavit .. ......1
Affirmation in Opposition & Attached Exhibits A & B ......2
This is a Holdover Proceeding filed on August 21, 2015 by Petitioner-Overtenant Project Renewal, Inc., a non-profit provider of supportive housing, against Respondent-Undertenant Noel Rodriguez based on the allegation that Respondent had violated the occupancy agreement governing his tenancy and was being discharged from the substance abuse recovery program he was enrolled in. At the time the proceeding was commenced, Respondent was incarcerated. Respondent-Undertenant Shamkia Hill appeared in court in response to the Petition and was joined as a party. While the case has been on the Court's calendar fourteen times including the initial return date of September 3, 2015, Mr. Rodriguez's first appearance was on October 17, 2016, when he took out the Order to Show Cause now before the Court which was made returnable on October 31, 2016. For the reasons set forth below, that Order to Show Cause is granted to the extent of vacating the judgment of possession against him that was entered on default on September 12, 2016 and setting the case down for conference on November 23, 2016 at 9:30 a.m.
Petitioner issued a Notice of Termination and a Notice of Discharge and Right to Appeal Determination dated June 15, 2015, both of which reference an "Occupancy Agreement" between the parties under which Project Renewal had permitted Mr. Rodriguez to occupy the premises on a month-to-month basis "as an incident to your participation in Project Renewal's Vivienda Program (the Program') for substance abuse recovery." The Notice of Termination advised Mr. Rodriguez that Project Renewal had made a determination to discharge him from the Program effective July 31, 2015 due to his failure to comply with Program requirements incorporated into the terms of his Occupancy Agreement including but not limited to a prohibition on the abuse of alcohol, prescription drugs or other substances; full and timely payment of monthly use and occupancy; a prohibition on non-occupancy of the apartment for a period of time in excess of 90 days; and attendance at various Project Renewal meetings. Both the Notice of Termination and the Notice of Discharge list five specific reasons for the determination to discharge Mr. Rodriguez from the Program: (1) failure to pay his portion of the use and occupancy due since December 2014; (2) failure to occupy the premises for a period of time in excess of 90 days; (3) failure to attend any of Project Renewal's required meetings since at least February 26, 2015; (4) behavior evidencing substance abuse on February 26, 2015; and (5) failure to reimburse Project Renewal for its payment of his portion of the use and occupancy due for a prior period of time.
The Affidavit of Service of the Notice of Petition and Petition indicates that they were served by delivery at the premises on August 28, 2015 to someone named Champien Rodriguez, identified as the wife of Noel Rodriguez, with additional copies sent to Respondent at that address by regular and certified mail. On the initial court date, September 3, 2015, notations on the court file indicate that someone by the name of Shamkia Hill appeared on Respondent's behalf, identified herself as Respondent Noel Rodriguez's girlfriend and advised the Court that Mr. Rodriguez was incarcerated in Pennsylvania and would not be released until March 2016. The case was adjourned first to September 9, 2015, and then to October 6, 2015 for the appointment of a guardian ad litem ("GAL") to act on behalf of Respondent. The Court issued an Order sua sponte dated September 25, 2015 appointing Thomas Giles as GAL for Mr. Rodriguez and adjourning the case to October 14, 2015.
In the meantime, Petitioner served and filed a motion, originally returnable October 6, 2015 and then adjourned to October 14, 2015, to join Shamkia Hill as a Respondent. By Order dated October 15, 2015, Petitioner's motion was granted, Shamkia Hill was added as a Respondent, the caption was amended to include her and the case was adjourned to November 18, 2015 "for all purposes, and the results of the investigation by GAL Thomas Giles".
On November 18, 2015 both Ms. Hill and Mr. Giles, the court-appointed GAL for Mr. Rodriguez, appeared and the case was adjourned by Stipulation "for settlement purposes and for GAL to coordinate with Respondent Rodriguez" to December 16, 2015; the Stipulation included a statement in which Respondents — Rodriguez by his GAL, Hill pro se — consented to the Court's jurisdiction.
On December 16, 2015 another Stipulation was entered into by Mr. Giles "as duly appointed Guardian ad Litem for Respondent Noel Rodriguez, who is currently incarcerated in Pennsylvania" and by Petitioner's counsel, which noted that, The Stipulation also noted that Ms. Hill had failed to appear in court that day and adjourned the case to January 27, 2016. A notation on the court file indicates that Respondent "has been transferred to Chester Correction Facility/PA". The case was adjourned on January 27, 2016 first to March 4, 2016 and then to April 6, 2016, at which time a Stipulation of Settlement was signed by Petitioner's attorney, Mr. Giles as GAL for Mr. Rodriguez and Ms. Hill pro so and so-ordered by the Court. Despite the notation on the court file that a copy of the Stipulation would be mailed to Mr. Rodriguez, his signature is not on the agreement. The key provisions of the Stipulation of Settlement are as follows: (1) the establishment of a 2-year probationary period, beginning April 6, 2016, during which Mr. Rodriguez agreed to refrain from engaging in conduct similar in nature to that alleged in the Holdover Petition and predicate Notice of Termination; (2) payment of "use and occupancy" arrears of $3440 due through and including April 2016 by June 30, 2016; (3) payment of ongoing "use and occupancy" in full and on time each month, regardless of whether Mr. Rodriguez was physically present in the premises; (4) Mr. Rodriguez's absence from the apartment for more than 90 days, even if such absence was the result of incarceration, would constitute a default in the agreement; (5) a waiver of any claims for "use and occupancy" from Ms. Hill in exchange for her agreement to surrender any tenancy claims and to move out of the premises no later than July 11, 2016; and (6) a restoration clause, under which Petitioner could restore the proceeding to the Court's calendar upon 8 days' written notice to seek a final judgment and warrant in the event of a default. The agreement makes no mention of when Mr. Rodriguez was expected to return to the apartment, and no indication of the relationship of that date to the compliance deadlines for payment and re-occupancy of the apartment.
By motion returnable August 9, 2016, Petitioner sought a final judgment of possession against both Mr. Rodriguez and Ms. Hill due to their various alleged breaches of the Stipulation of Settlement: Mr. Rodriguez had failed to occupy the apartment for a period in excess of 90 days and had failed to pay either the ongoing "use and occupancy" or the arrears; Ms. Hill had failed to move out. Petitioner entered into a Stipulation of Settlement with Ms. Hill on August 9, 2016, providing a final judgment of possession to Petitioner as against Ms. Hill, with execution of the warrant of eviction stayed until September 30, 2016. Mr. Giles had requested an adjournment due to his inability to be in Court on August 9, 2016 and the motion as to Mr. Rodriguez was adjourned to September 6, 2016. On that day, Mr. Giles reported that he had not been able to secure any information as to when Mr. Rodriguez might be returning to the apartment and submitted no opposition to Petitioner's motion. Thereafter, the Court granted Petitioner's unopposed motion, on default, by Order dated September 12, 2016 and issued a final judgment of possession against Mr. Rodriguez.
On September 30, 2016, Ms. Hill took out an Order to Show Cause supported by her affidavit in which she asserted that "Noel Rodriguez needs paper work saying he can be release from the Halfway House in Penns[ylvania] so he can come home to take care of his rent and sign his lease the problem is he need these court papers to do so". The Court signed the Order to Show Cause but then denied it on the return date, noting that it had been "taken out not by Respondent Rodriguez's Guardian Ad Litem or by Respondent Rodriguez but by Respondent Shamkia Hill, and that it fails to state grounds for the relief sought." Mr. Rodriguez appeared in Court with Ms. Hill on the October 17, 2016 return date and was given a referral to a legal services organization. That same day, Mr. Rodriguez pro se took out the Order to Show Cause seeking restoration of the case to the Court's calendar which is now before the Court. Mr. Rodriguez does not claim that he did not breach the Stipulation, and instead supports his Order to Show Cause with the allegations that, ...
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