Sino Realty Inc. v. Yung

• Decision Date: 20 May 2022
• Docket Number: L & T Index No. 79704/2012
• Citation: 75 Misc.3d 850,171 N.Y.S.3d 759
• Parties: SINO REALTY INC., Petitioner v. Wai Wah YUNG, Respondent-Tenant, Yee Ling Law, Yee Ling Yung, Kam Sau Yung, King Yim Yung, Siu Lan Lung Respondents-Undertenants.
• Court: New York Civil Court

75 Misc.3d 850

171 N.Y.S.3d 759

SINO REALTY INC., Petitioner

v.Wai Wah YUNG, Respondent-Tenant, Yee Ling Law, Yee Ling Yung, Kam Sau Yung, King Yim Yung, Siu Lan Lung Respondents-Undertenants.

L & T Index No. 79704/2012

Civil Court, City of New York, New York County.

Decided on May 20, 2022

Kolodny, P.C. (Peter Kolodny, Esq.) for the petitioner

Take Root Justice (Claribel Morales, Esq.), for the proposed intervenor, Shuet Lan Yung

Karen May Bacdayan, J.

After oral argument on the record the decision and order on this motion to intervene Shuet Lan Yung in this proceeding is as follows:

PROCEDURAL HISTORY AND ARGUMENTS

This nonprimary residence holdover proceeding was commenced in 2012 by Sino Realty Inc. ("petitioner") against Wai Wah Yung, the rent stabilized respondent-tenant, and Yee Ling Law, Yee Ling Yung, Kam Sau Yung, and King Yim Yung, respondents-undertenants.¹

The parties stipulated to a final judgment of possession as against the respondent and respondent-undertenants in February 2013, and the warrant issued forthwith. Execution of the warrant was stayed until respondent, Kam Sau Yung, the family's matriarch, either vacated or passed away, whichever event occurred first. In 2018, petitioner brought an order to show cause seeking access to the premises for extermination and elimination of noxious odors, a determination that Kam Sau Yung had vacated the premises, or, in the alternative setting the matter down for a hearing on whether Kam Sau Yung was deceased, and vacating the stay on the execution of the warrant.

By decision and order dated October 31, 2018, the Hon. Daniele Chinea granted petitioner's motion to execute the warrant of eviction, but stayed execution through November 30, 2018 to allow for the remaining respondent in possession "Siu Lan Yung [who had been substituted the "Doe" herein] and her sister [Shuet Lan Yung] who is not a party to this action and took possession after entry of the stipulation of settlement dated February 1, 2013 [to vacate]."

Shuet Lan Yung ("movant" or "Yung") who first appeared in this proceeding in 2018 as an unnamed occupant seeking additional time to vacate the premises, obtained two more stays of execution of the warrant by stipulations dated December 12, 2018 and March 1, 2019 resolving orders to show cause.² In a "so ordered "stipulation dated March 1, 2019, executed by movant and Siu Yan Yung, the parties agreed that "[m]ovants shall vacate the premises on or before March 30, 2019 TIME BEING OF THE ESSENCE." (Petitioner's opposition, exhibit G.) The stipulation further provided, "[m]ovants shall not and may not make any further applications to the [c]ourt by order to show cause or otherwise for any further stay of execution of the warrant." Despite this restriction to which movant agreed, the Hon. Michelle Schreiber signed the order to show cause seeking to stay execution of the warrant. However, on April 15, 2019, the same judge denied the request for a stay "for the reasons stated on the record [t]here is no basis to extend the time for respondents to vacate and time has been extended several times already." The April 15, 2019 decision and order was appealed to the Appellate Term and denied on June 6, 2019. (petitioner's attorney's affirmation in opposition at 18; exhibit I of opposition.)

Thereafter, Shuet Lan Yung obtained counsel and moved by order to show cause to intervene in this proceeding,³ for time to answer to assert a colorable claim of succession rights as she had resided in the apartment for two years prior to her brothers vacatur in 1995 or 1996, or further staying execution of the warrant for good cause.⁴

Yung sets forth her case in two untranslated affidavits.⁵ Yung is 69 years old, single, and has a limited income. (Yung affidavit in support of June 18, 2019 order to show cause at 1.) Yung states that, upon information and belief, her brother, Wai Wah Yung, the tenant of record, signed a vacancy lease in 1982. (Id. at 12.) She has lived in the subject premises since 1986. (Id. at 10.) Her brother moved out of the premises in 1995 or 1996. (Id. at 13.) Yung and her mother continued to reside in the premises after the tenant of record's vacatur. (Id. at 14.) While movant states that she was aware of the February 13, 2013 stipulation, she did not sign it because she "knew the contents were untrue." (Id. at 18.) Her attorney reiterates this in his reply affirmation, but goes one step further: "Although she was aware [that] the stipulation contained untrue statements and would result in a loss of rights, Ms. Yung did not feel compelled to sign the stipulation as she was not a named party in the proceeding, [and] was not required to do so."

Attached to Yung's reply papers are several exhibits purporting to demonstrate a colorable claim of succession rights to the apartment based on receipt of documents at the subject premises. Exhibit A is a lease signed by Wai Wah Yung on September 7, 2007 (despite the uncontroverted fact that he vacated that premises in 1995 or 1996). Exhibit B is a 1040EZ signed on March 22, 2013, and another 1040EZ signed on April 8, 2015 (both post-dating the February 13, 2013 stipulation of settlement). Exhibit C is a single Chase Bank statement for the period of January 12, 2012 — February 9, 2012, just one month prior to execution of the February 13, 2013 stipulation. Exhibit D is a document from the Social Security Administration dated December 22, 2014. All other Exhibits likewise post-date the February 2013 agreement.

Petitioner opposes the motion on the basis that it is untimely, the movant having known about this proceeding for years. Petitioner further argues that Yung should not now be allowed to raise a succession claim, citing to Third Lenox Terrace Associates v. Edwards , 91 A.D.3d 532, 937 N.Y.S.2d 41 (1st Dep't 2012).

In reply, movant reiterates her arguments and attaches exhibits as set forth above. The reply papers studiously disregard petitioner's Third Lenox argument.

DISCUSSION

CPLR 1013 provides in whole:

Upon timely motion, any person may be permitted to intervene in any action when a statute of the state confers a right to intervene in the discretion of the court, or when the person's claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.

"Consideration of any motion to intervene begins with the question of whether the motion is timely. In examining the timeliness of the motion, courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party." ( Yuppie Puppy Pet Prod., Inc. v St. Smart Realty, LLC , 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 [1st Dep't 2010].)

The instant motion was filed six and a half years after the February 13, 2013 stipulation providing for a final judgment and warrant of eviction. Shuet Lan Yung, by her own admission knew about the eviction proceeding and agreement to vacate upon her mother's death. (Yung affidavit in support of order to show cause at 15-19.) Due to the COVID-19 pandemic and resultant modification of court procedures, it has been another three years since the instant motion to intervene was filed.

Movant certainly stands to benefit from intervention and the opportunity to assert her succession rights. However, she does not demonstrate a colorable claim. In contrast to Second Department authority, which defines that date of permanent vacatur as the date of actual vacatur, Jourdain v. N.Y. St. Div. of Hous. & Community Renewal , 159 A.D.3d 41, 70 N.Y.S.3d 239 (2d Dept. 2018), in the First Department, Third Lenox Terrace Associates v. Edwards , 91 A.D.3d 532, 937 N.Y.S.2d 41 (1st Dep't 2012) is the controlling law. In Third Lenox the tenant of record vacated the apartment in 1998 and established a residence elsewhere. However, she continued to execute renewal leases for the apartment extending through November 2005. The Appellate Division found that the tenant of record "having continued to pay the rent and execute renewal leases extending through November 2005 cannot be found to have permanently vacated the apartment at any time...