Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—NYC Housing Authority (NYCHA) Ordered to Pay More Than $19,000 In Civil Contempt Penalties—NYCHA Failed to Restore Hot Water to Apartment for More Than Two Years and had Acted “Contumaciously” and Without Regard for the Tenant’s Health—NYCHA Ignored Repeated Court Orders—Prior Settlement Stipulation was Unenforceable Since it was Indefinite, Illusory and Precautionary—Court Infuriated That Building Manager Gave “Flippant and Disingenuous Testimony

The petitioner, a tenant in a building owned and operated by the New York City Housing Authority (NYCHA), had commenced a Housing Part (HP) proceeding in December 2010, requesting that NYCHA restore hot water to her apartment. In January 2012, the tenant commenced another HP action, again claiming that she did not have hot water. The petitioner had submitted two motions for civil and criminal contempt against NYCHA, claiming that NYCHA had “acted in defiance of multiple court orders and so-ordered stipulations by not restoring hot water.”

The tenant had appeared in court more than 24 times in an effort to get NYCHA to restore hot water over a period of two years and on the date when she filed the two motions for contempt, she still lacked hot water. The tenant asked that the respondents, NYCHA and its chair and the housing manager for the building (NYCHA), “be held in contempt and that fines be assessed and imprisonment be imposed until such time as the hot water is restored and until [tenant] is transferred to another NYCHA apartment which is both larger than her existing apartment and meets housing maintenance standards including providing hot water.”

NYCHA had previously agreed to relocate the tenant to a larger apartment in a July 2011 stipulation in exchange for the tenant withdrawing with prejudice, her then pending motion for contempt. The tenant asserted that such transfer never occurred and that NYCHA agreed to transfer the tenant “only to ‘get out from under’ the then pending contempt motion and to avoid being punished for contempt.” The tenant argued that the respondent “should be held in contempt for failing to relocate her” after they had agreed to such relocation before a judge (stipulation). The subject court noted that the “lack of hot water existed even as the court conducted the contempt hearings.” The court dismissed the motion for criminal contempt on the grounds that service had not been made by “personal delivery pursuant to CPLR §308.”

NYCHA claimed that the tenant had settled the case and had withdrawn a then pending motion for contempt. The court found that the stipulation was “indefinite, illusory and basically precatory” and that the NYCHA representatives who appeared on the date of the alleged settlement did “not even have the authority or discretion to effect the relocation of the tenant.” Thus, the court found that the stipulation was unenforceable. The tenant had been unrepresented at the time of the stipulation.

Following a hearing, the court found “that NYCHA repeatedly disobeyed and disregarded clear and unequivocal court orders to fix or restore the hot water in [the tenant's] apartment.” The court found credible testimony which established that “NYCHA personnel were aware of the hot water problem since 2011. They offered little or no legally acceptable explanation as to why the hot water problem was not dealt with and resolved in 2011 or at the latest in early 2012, when the hot water in only one…building was restored.” The court found that in January 2012, when NYCHA executives had “refused to allocate funds to repair the hot water problem in [the tenant's] apartment, they acted contumaciously and with clear disregard for the court orders issued here but even more importantly they ignored the health and safety of their tenant…, and severely diminished her quality of life.”

The court noted that “the Housing Maintenance Code, classifies the lack of hot water as a ‘C’ violation with civil penalties of $250 a day and up to $1,000 a day.” The court stated that the “urgency and seriousness of these needed repairs were manifested by court order that required NYCHA to fix the problem within 24 hours, 48 hours and forthwith! Although NYCHA is not subject to the New York City Administrative Code and Housing Maintenance Code, it is bound to adhere to court orders.” If NYCHA is found to be in contempt of such orders, the court could “impose fines for out of pocket expenses and non-pecuniary injury (i.e. pain and suffering for diminution of quality of life within the context of a contempt proceeding).”

The court found it “infuriating” that NYCHA’s building manager’s testimony was “flippant and disingenuous” when “she unilaterally decided that the hot water had been fixed in 2011 because she ran her hand under the water for a few minutes and did not receive any more complaints from [the tenant].” The court opined that her testimony was “disturbing and designed to obfuscate truth.” The court contrasted her testimony with “the intelligent and informative testimony” of two other NYCHA witnesses. The court concluded that NYCHA’s building manager “was not interested in advocating and facilitating the repair of the hot water system.”

Accordingly, the court found that NYCHA and the building manager were “in civil contempt” and awarded the tenant “a judgment in the amount of $19,205.00 in fines/damages for which they should be held jointly and severally liable.” The court dismissed the motion to punish NYCHA’s chairperson since no reference was made to him during the hearing.

Brown v. NYCHA, HP 1885/10 & 116/12, NYLJ 1202625719927, at *1 (Civ., NY, Decided Oct. 17, 2013), Saxe, J.

Landlord-Tenant—Rent Control—Default Judgment Vacated—Subpoena Must be Obtained From the Supreme Court to Require Presence of A Prisoner in the NYC Housing Court—Video Conferences are Routinely Used by the Housing Court and Other Courts to Permit Incarcerated Litigants to Appear—Guardian Ad Litem Should Have Been Appointed

A landlord had commenced an underlying summary holdover proceeding against a rent-controlled tenant. The tenant had allegedly violated Real Property Law (RPL) 226(b) by subletting his apartment without permission. When the proceeding had been commenced, the tenant was incarcerated. The tenant’s common law wife (“A”) was not originally named or served in the proceeding, but she was substituted by the “Inquest Court” (the judge who presided over the proceeding through the inquest in January 2010), for “Jane Doe” on the date of the inquest.

The landlord had issued a notice to cure (notice). The notice was served on the roommate (“B”), who claimed that he was a co-tenant and a copy was delivered to the NYS Division of Housing and Community Renewal (DHCR). The notice stated that the tenant violated RPL 226(b) by improperly permitting various people to use and occupy the apartment. The landlord thereafter issued a notice of termination (termination notice). The termination notice was alleged to have been served by personal delivery to the tenant at the apartment on June 9, 2009 and on DHCR. Copies of both notices were mailed to the Anna M. Kross Center correctional facility (AMKC).

An affidavit of service alleged that the notice of petition and petition were served by personal service on the tenant at his apartment on Aug. 25, 2009, with a copy mailed to AMKC. The petition asserted that the apartment was governed by rent stabilization, rather than rent control, as alleged in the predicate notices.

The tenant, seeking an adjournment, submitted an affidavit of unavailability through “A,” asserting that he was incarcerated in Riker’s Island. After two adjournments, a Housing Court judge signed an order to produce, seeking production of the tenant from AMKC to the courthouse for trial. The proceeding was adjourned two more times. The court had sent a postcard to the parties and an order to produce was sent to the prison. After another adjournment, the Inquest Court signed an order to produce the tenant from the Cape Vincent Correctional Facility. Finally, the inquest took place and the Inquest Court awarded the landlord a final judgment of possession as against the tenant and “A,” whom the court substituted as a party in place of “Jane Doe.” The Inquest Court signed a judgment of possession in February 2010 and a warrant of eviction was issued in March 2010.

In April 2013, the tenant moved to vacate the default, asserting that he had been incarcerated at the time of the inquest, the prison “did not recognize the order to produce,” the landlord failed to establish its claim of illegal subletting, that he was now homeless and the landlord intentionally sought a default judgment to regain possession of the rent-control apartment. The new tenant-in-possession cross moved for attorney fees.

The tenant had been incarcerated, serving a five-year sentence which commenced in Jan. 2009. “A,” who had occupied the apartment, had sought to succeed to her mother’s apartment at a different location. “A” claimed to be the tenant’s common-law wife and the mother of the tenant’s child. “A’s” daughter attends school in New Jersey and she had moved into the apartment after she had to leave her mother’s apartment. The Inquest Court had awarded a final judgment of possession against the tenant and “A.”

The tenant alleged that he had lived in the apartment for approximately 50 years, was disabled and receives SSI income. The tenant also alleged that he had a roommate (“B”), commencing in 2006 and 2007 and that arrangement continued until 2008, when the tenant was arrested and incarcerated. “B” had allegedly vacated the apartment in December 2009 or January 2010, due to harassment by the landlord and no one else lived in the apartment after such date. In October 2009, the tenant was convicted and sentenced to five years in jail.

The court found that the landlord had never served a copy of a notice of entry on the tenant, nor was a notice of entry filed with the court, and therefore, the motion to vacate the default was timely. Moreover, the tenant had been denied due process and had presented “an excusable default for his failure to appear.” The tenant “had been incarcerated at the time of the inquest, but made many and varied attempts to respond to the proceeding, which establish that his failure to appear was not willful and that his incarceration constituted a reasonable excuse to vacate the default….” Although incarceration in certain instances may not constitute excusable default, those situations are “where the respondent failed to notify the court of the incarceration…or where respondent was represented by counsel….”

Here, the tenant had sent letters to the court after the inquest and had also attempted to retain counsel. An attorney had allegedly been retained and paid money. The tenant’s brother asserted that the attorney advised him that “the case had been adjourned a number of times,” but had “failed to keep him informed of the status of the case, failed to inform him of the date of the inquest and then later asserted that he was pursuing an appeal on behalf of Respondents.” That attorney had a history of being disciplined “for neglecting client matters and lying to clients about work done on their behalf….” and was “subsequently disbarred for criminal activity.” Additionally, the tenant had “repeatedly made inquiries at the institution where he was incarcerated about being produced for the inquest” and submitted “documentary evidence” supporting such claim. The tenant had also sent “A” to court “to speak on his behalf.”

The court further found that the tenant had “established excusable default.” The court explained that when an individual is incarcerated, a court may not find that such person “has willfully absented himself from Court and proceed at inquest. In fact, the Court is under an obligation to use all necessary means to facilitate that individual’s participation in the proceeding….” Furthermore, the orders to produce had not resulted in the tenant being produced and “did not comply with statutory requirements…. Housing Court Judges lack jurisdiction to issue an order. Such an Order must be signed by a Supreme Court Justice, who has authority pursuant to CPLR 7002(b) as referenced in CPLR 2302(b).”

The court also noted that there was sufficient information on the NYS Department of Corrections and Community Supervision website as to where the tenant was incarcerated and the period of such incarceration. Additionally, the order to produce directed that the tenant “be placed on a bus and physically produced in court” and such “preprinted form” was “an outdated form.” Given the cost of producing incarcerated litigants, orders to produce are no longer typically used in Housing Court cases. “The form now typically issued by the court would be an Order to Produce for a Video Conference.” Video conferences have been routinely employed by the Housing Court and other trial courts, “to allow incarcerated litigants to appear since at least 2008.” Here, the tenant was not permitted to appear by video conference.

Additionally, Housing Court judges commonly “consider the appointment of a Guardian Ad Litem (GAL), if necessary, when a litigant is incarcerated.” Nothing in the record indicated whether “the Inquest Court even considered the possibility of appointing a GAL for [tenant].” There is New York precedent “for finding that an incarcerated litigant is considered as a person for whom a…(GAL) should be appointed.” The court opined that “a person who fails to appear in a summary proceeding due to incarceration, and whom the court is unable to have produced via video conference or otherwise, is a person unable to adequately defend his or her rights as defined by CPLR §1201.” The court held that a GAL should have been appointed in this case to “insure due process.”

The landlord argued that the order to produce may have been “received by the prison and that [the tenant] may have simply refused to be produced.” The court found that there was “no basis in the record for the court to make any such inference, nor to require a hearing on said issue.” Thus, the tenant established “excusable default.”

The court then found that the tenant had asserted “several meritorious defenses.” The tenant argued that he did not sublet the apartment, but he had “a roommate arrangement” and that the alleged roommate had vacated. “[T]he only other alleged occupants were the mother of [the tenant's] child and [the tenant's] minor child,” whom the tenant asserted had “entered into possession without [the tenant's] permission or knowledge” and cannot be “subtenant” because of the “familial relationship between the parties.” Further, “the rights of tenants are not extinguished by their incarceration.” With respect to “rent regulated tenancies,” the “absence [from] a rent regulated apartment due to incarceration is excusable and does not preclude the assertion of rights under rent regulation….”

Moreover, the pleadings appeared to contain numerous defects. The petition contained “the incorrect regulatory status” of the apartment and “the predicate notices, which are not subject to amendment, provide[d] that [the tenant was] being evicted for his violation of RPL 226(b), which [the landlord] acknowledge[d] [was] inapplicable to rent controlled tenants.” The predicate notices also failed “to cite any specific provision of the rent control laws pursuant to which the proceeding was maintained.”

The landlord contended that such defects were “immaterial” and that “a notice to cure…would presume a right to cure any breach established at trial, post trial.” Since any breach had apparently been cured prior to the entry of the judgment of possession, the court found that the tenant had alleged “meritorious defenses to support vacating the default judgment….”

Finally, the court rejected the landlord’s laches argument. The tenant’s default was “not willful and the delay in seeking to vacate the default was beyond his control.” The landlord allegedly spent $200,000 to renovate the apartment. The court found such “potential prejudice” was outweighed by the prejudice of the rent-controlled tenant “losing the home” that “he occupied for most of his life where the underlying cause of action appears questionable, without ever having had a day in court.” Additionally, “[m]ere delay however long, is in and of itself insufficient to establish laches….” Accordingly, the court, inter alia, granted the motion to vacate the default.

Often, a hearing is necessary “to balance the equities on the issue of restoration where a new tenant is in possession….” Here, the new tenant in possession is an unregulated tenant whose lease expires in February 2014, and had only been a tenant since March 2012. The court reasoned that under the subject circumstances, such prejudice “is not as compelling” as the prejudice to the subject rent control tenant. The proceeding was restored to the calendar.

46 Downing Street LLC v. Otto Thompson 46 Downing Street-Apt 1C New York, L&T 81450/2009, NYLJ 1202624453275, at *1 (Civ. NY, Decided Oct. 7, 2013), Kraus, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.