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MORRIS LLC v. “John Doe” and “Jane Doe”, Respondent(s)-Undertenant(s). (2019)

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Civil Court, City of New York.

MORRIS I LLC, Petitioner, v. Ryan BAEZ, Respondent-Tenant, “John Doe” and “Jane Doe”, Respondent(s)-Undertenant(s).


Decided: March 08, 2019

David L Moss & Associates, by David Moss, Esq. — for the Petitioner The Legal Aid Society, by Vanessa Adegbite, Esq. — for the Respondent-Baez

Recitation, as required by CPLR 2219 (a), of the papers considered in review of these motions:

Papers Numbered

Motion Sequence 1

Petitioner's Notice of Motion dated July 3, 2018, Affidavits,

and unnumbered Exhibit annexed 1

Motion Sequence 2

Petitioner's Notice of Motion dated August 8, 2018, Affidavits,

and Exhibits (A — B) annexed 2

Motion Sequence 3

Respondent's Amended Notice of Motion dated February 8, 2019,

Affidavits 3 and Exhibits (A — G) annexed 3

Petitioner's Affirmation in Opposition dated November 14, 2018,

Affidavit, and Exhibits (A — B) annexed 4

Respondent's Reply Affirmation dated February 8, 2019

and Exhibits (H — J) annexed 5

After oral argument and upon the foregoing cited papers, the decision and order on the foregoing motions is as follows:


This is a holdover proceeding premised on the allegation Petitioner discovered in late February 2018 that Respondent, Bryan Baez (hereinafter Respondent or Mr. Baez), is harboring a dog (Little JJ) in violation of his lease. Petitioner served a Notice to Cure dated March 1, 2018 and a Notice of Termination dated March 27, 2018. Service of the Notice of Petition and Petition was completed on May 4, 2018. Mr. Baez is a rent-stabilized tenant who has resided in the premises for almost 8 years (Aff of Respondent at 2), and currently pays $ 1,300 per month in rent. (Petitioner's motion at Exhibit B.)

On the initial court appearance of May 9, 2018, the proceeding was adjourned for Respondent to meet with the Legal Aid Society, Housing Help Program. On June 18, 2018, Respondent entered into a probationary stipulation of settlement pro se in which he agreed “not to violate any of the allegations in the Notice of Termination and [agreed] not to allow any dogs into the premises under any circumstances, not even to visit.” Respondent was again referred to the Legal Aid Society (LAS).

Shortly thereafter, Petitioner moved to restore the case to the calendar upon Respondent's alleged breach of the June 18, 2018 stipulation, and on July 13, 2019, the court was presented with a proposed stipulation in which Mr. Baez consented to a final judgment of possession and agreed to vacate his apartment by October 1, 2018, even though during allocution he disputed Petitioner's allegations. The stipulation was not so-ordered by the court or entered. Another referral to LAS was made. On July 30, 2018, LAS appeared as a friend of the court and requested an adjournment to assess the merits of Mr. Baez's case.

In the interim, by Notice of Motion dated August 8, 2018, Petitioner moved pursuant to RPAPL 745 (2) for an order directing Respondent to pay all use and occupancy that had accrued since the commencement of the proceeding, and all use and occupancy as it came due. On August 24, 2018, the Legal Aid Society appeared in this proceeding as counsel for Mr. Baez, and the case was adjourned on consent for further motion practice.

Respondent served and filed a motion on October 22, 2018 seeking vacatur of the June 2018 stipulation, and dismissal of the proceeding on the basis that Petitioner is seeking Mr. Baez's eviction in retaliation for good faith complaints about Housing Maintenance Code violations in the premises made to the Department of Housing Preservation and Development (HPD).1 (Affirmation of Respondent's counsel at 4; Respondent's aff at 10.) Respondent also seeks dismissal on the basis that Petitioner has waived its claim pursuant to section 27-2009.1 (b) of the Administrative Code of the City of New York (hereinafter “the Pet Law”) because he has openly exhibited his dog to building staff since February 2017 (Respondent's aff at 1-5), and Petitioner delayed in bringing this proceeding for more than three months after acquiring knowledge of the dog.2 In the alternative, Respondent seeks leave to serve a late answer asserting these defenses, along with a counterclaim for attorneys' fees.3 Petitioner opposes the motion on the grounds that Respondent “has not presented any proof” that this proceeding was commenced in retaliation for complaints to HPD, nor has Respondent presented proof that Respondent's dog was harbored openly and notoriously for more than three months prior to the commencement of this proceeding. (Affirmation of Petitioner's counsel at 8.) Having been given an opportunity at oral argument to oppose Petitioner's August 8, 2018 motion for use and occupancy, Respondent has chosen not to do so.

The motions are consolidated for the purposes of this decision.


Vacatur of the Stipulation

It is well-settled that stipulations of settlement are favored by the courts and are not lightly cast aside. (See Hallock v. State of New York, 64 NY2d 224 [1984] ). Adherence to this rule not only allows efficient dispute resolution but maintains integrity of the litigation process. (Id. at 230; Campbell v. Bussing, 274 AD 893 [2d Dept 1948] [holding that “a stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature”].) Good cause to vacate the stipulation is demonstrated where it appears that a party has “inadvertently, inadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice.” (In re Frutiger's Estate, 29 NY2d 143, 150 [1971] [internal quotation marks and citations omitted].) “The discretion of a court is not that closely confined [to the grounds commonly cited]” and an unjust stipulation should be vacated when the parties may be returned to their former status. (Solack Estates, Inc. v. Goodman, 102 Misc 2d 504, 506 [App Term, 1st Dept 1979], affd 78 AD2d 512 [1980].) In 144 Woodruff Corp. v. Lacrete (154 Misc 2d 301, 305 [Civ Ct, Kings County 1992] ), the court stated that, while lack of representation is not sufficient in and of itself to vacate a stipulation, “a party's lack of representation at the time of entry into the stipulation is a significant factor to be considered in determining whether good cause exists to vacate the stipulation.” (See also 2701 Grand Assn. LLC v. Morel, 50 Misc 3d 139[A], 2016 NY Slip Op 50163[U] [App Term, 1st Dept 2016] [overturning the lower court determination to hold a previously unrepresented to the terms of a stipulation where the tenant later demonstrated potentially meritorious claims with the assistance of counsel].)

In this case, Respondent entered into a probationary stipulation on June 18, 2018 in which he agreed not to allow a dog to reside in or visit his apartment for a period of one year. Thereafter, Petitioner moved for a final judgment of possession on the basis that Respondent had purportedly breached the June 2018 stipulation, an allegation which Respondent disputes. (Respondent's aff at 21.) On July 30, 2018 Respondent, pro se, considered entering into a stipulation in which he consented to a final judgment of possession, and which required him to vacate his affordable, rent stabilized apartment in which he has resided for almost 8 years within 3 months. The stipulation provided that “time is of the essence.” The stipulation was not entered, and the case was adjourned for Respondent to consult with the Legal Aid Society. Within one month, LAS appeared in the proceeding and subsequently moved to vacate the June 18, 2018 agreement, raising potentially meritorious defenses to this proceeding of which Respondent had previously been unaware (affirmation of Respondent's counsel at 16), and which Respondent waived without the benefit of counsel. Under the circumstances, the court exercises its discretion to vacate the stipulation so that Respondent can benefit from full legal representation by LAS and litigate this proceeding on the merits.

Accordingly, Petitioner's motion to restore the proceeding for a final judgment on the basis of an alleged breach of the parties' stipulation is denied as moot.

Respondent's Pre-Answer Motion to Dismiss

Respondent has moved for dismissal of the proceeding on the basis that the landlord is seeking his eviction in retaliation for making complaints to HPD, and on the grounds that Petitioner has waived its right to proceed against Respondent for harboring a dog under the Pet Law. Both of these grounds are affirmative defenses with regard to which Respondent has the initial burden of proof. (RPL § 223-b [4]; 184 W. 10th St. Corp. v. Marvits, 59 AD3d 287, 288 [1st Dept 2009]; 339-347 E. 12th St. LLC v. Ling, 35 Misc 3d 30, 31 [App Term, 1st Dept 2012].4 )

These grounds are not specifically identified in CPLR 3211 (Motion to Dismiss) and, indeed, Respondent does not specify a CPLR 3211 (a) provision upon which he relies to seek dismissal in this pre-answer motion. (See n 3 supra.) Accordingly, the court will treat the motion as one for dismissal under CPLR 3211 (a) (1) as CPLR 3211 (a) (1) covers any defenses other than those listed in section 3211 (a) (5) and acts a backup mechanism for dismissal when a litigant is unable to point to one or more of the specific subdivision (a) grounds. (Fontanetta v. Doe, 73 AD3d 78, 84 [2d Dept 2010]; 1820 First Ave. Inc. v. Mendoza, 2015 NY Slip Op 31776[U] [Civ Ct, NY County 2015]; see also 221 Siegel's Practice Review, Second Department Shows Futility Exclusively on ‘Documentary Evidence’ Standard of CPLR 3211(A)(1) When What Party Really Wants is Summary Judgment, at 2 [May 2010].)

Dismissal pursuant to CPLR 3211 (a) (1) should be granted “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” (Leon v. Martinez, 84 NY2d 83, 88 [1994].) Respondent has the burden of showing that the relied-upon documentary evidence is “unambiguous and of undisputed authenticity,” (Fontanetta v. Doe, 73 AD3d at 86), “resolves all factual issues as a matter of law, conclusively [disposing] of the plaintiff's claim,” (Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 AD2d 383, 383 [1st Dept 2002] ), and “utterly refutes plaintiff's factual allegations.” (Mill Fin., LLC v. Gillett, 122 AD3d 98, 103 [1st Dept 2014]; see also Mendoza, 2015 NY Slip Op 31776[U], *2-3.)

Respondent submits five documents in support of his motion:

1. His own affidavit (Exhibit C); 5

2. Untranslated exportation papers from the Dominican Republic for Little JJ (Exhibit D);

3. A copy of a vaccination certificate dated March 4, 2017 (Exhibit G);

4. A printout of the complaint history from the HPD website dated October 22, 2018 indicating that complaints regarding Respondent's apartment were made to HPD on April 5, 2018) (Exhibit H); 6 and

5. A printout of the complaint status from the HPD website for the complaints made on April 5, 2018 (Exhibit I).

While Respondent has demonstrated good cause to set aside the stipulation of settlement in order that this proceeding may be litigated on the merits, Respondent has not met the narrow standard for dismissal pursuant to CPLR 3211 (a) (1). Respondent has not conclusively established with its submissions, such as would warrant dismissal of the proceeding at this stage of the litigation, that this proceeding was commenced in retaliation for Respondent's complaints to HPD, or that Petitioner has waived its right to bring this proceeding under the Pet Law. Thus, Respondent's motion to dismiss is denied without prejudice to renewal of the defenses at trial.

Leave to Serve a Late Answer

Petitioner has not opposed the branch of Respondent's motion seeking to serve a late answer. The parties having been returned to the status quo by the vacatur of the June 18, 2018 stipulation, Respondent's motion is granted, and the proposed late Answer is deemed served upon Petitioner and filed with the court.

Leave to amend pleadings should be freely given absent a showing of prejudice by the other party (CPLR 3025 [b]; Fahey v. County of Ontario, 44 NY2d 934 [1978]; Harlem Restoration Project v. Alexander, 1995 NY Misc LEXIS 783 [Civ Ct, NY County, July 5, 1995].) To deny a respondent the opportunity to interpose an answer and proceed to trial on the defenses raised therein after vacatur of a stipulation would render the vacatur of the stipulation a meaningless exercise and would be antithetical to the strong public policy in favor of resolving cases on their merits. (City Line Auto Mall, Inc. v. Citicorp Leasing, Inc., 45 AD3d 716 [2d Dept 2007].) Moreover, in these circumstances, a late answer is needed in order to obtain the full benefit of representation.

Petitioner's Motion for Use and Occupancy

Respondent has not opposed Petitioner's motion under RPAPL 745 (2) for use and occupancy that has accrued from the service of the Notice of Petition and Petition upon Respondent. RPAPL 745 (2) provides, in pertinent part, that:

“In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy, which may be established without the use of expert testimony ․”

Accordingly, Respondent is directed to deposit with the clerk, within 10 days of the date of this decision (allowing five days for mailing), $ 4,800 which is the amount of rent that has come due at the amount of the parties' last executed lease agreement from May 2018 (service of the Notice of Petition and Petition was completed on May 1, 2018), to present, less any payments made by Respondent during that time.7 Thereafter, Respondent shall pay ongoing use and occupancy at the same rate before the 5th day of each month during the pendency of this proceeding.

The parties are directed to appear before the court in Part E on April 22, 2019 at 9:30 a.m. for all purposes, including settlement and trial.

The foregoing constitutes the Decision and Order of this Court.


1.   Section 223-b (4) of the Real Property Law states in relevant part: “In any action to recover real property or summary proceeding to recover possession of real property, judgment shall be entered for the tenant if the court finds that the landlord is acting in retaliation for any action set forth in paragraphs a, b, and c of subdivision one of this section and further finds that the landlord would not otherwise have commenced such action or proceeding. Retaliation shall be asserted as an affirmative defense in such action or proceeding.”

2.   As stated in Seward Park Hous. Corp. v. Cohen (287 AD2d 157, 161 [1st Dept 2001] ), the purpose of the Pet Law “is twofold: (1) to protect pet owners from retaliatory eviction; and (2) to safeguard the health, safety and welfare of tenants who harbor pets. The ordinance sought to balance the rights of a landlord who acted promptly to evict a tenant upon learning the tenant harbored the pet, against the rights of a tenant who harbored such pet with the knowledge of the landlord, for an extended period of time (three months), without action being initiated by the landlord.”

3.   On February 20, 2019, Respondent served and filed a corrected motion, which was accepted by the court on the record without opposition from Petitioner. Respondent sought by this filing, and by her explanatory statements on the record, to make absolutely clear to the court that Respondent is not seeking summary judgment herein. Respondent did not, however, clarify which pre-answer grounds under CPLR 3211 upon which he is moving to dismiss.

4.   “The burden of establishing the affirmative defense of retaliatory eviction lies with its proponent, the tenant, and, as one noted commentator has observed: ‘To succeed in this difficult task, the tenant must show the landlord's state of mind, purposes, and motives, relying almost exclusively on circumstantial evidence’ (3 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 43:34, at 134 [4th ed.] ). It would be a rare case indeed in which sufficient proof of landlord's subjective, retaliatory state of mind was presented on papers alone.” (339-347 E 12th St. LLC v. Ling, 35 Misc 3d 30 [2012].)

5.   Factual affidavits do not constitute documentary evidence within the meaning of the statute. (Art & Fashion Grp. Corp. v. Cyclops Prod., Inc., 120 AD3d 436 [1st Dept 2014].)

6.    See Barr v. Huggins, 41 Misc 3d 605 (Civ Ct, Bronx County 2013) [holding that the statutory presumption of retaliation does not lie where a tenant's complaints are made after service of a predicate notice]. While the court notes that Respondent avers in his affidavit at paragraph 10 that he informed the Petitioner's superintendent that he intended to call the fire department to complain about a lack of heat, no evidence of this is presented other than his affidavit. (See n 5, supra.)

7.   According to the Petitioner's attorney at a conference before the court on March 8, 2018, there is no fully executed lease agreement for more than 1,300 which is the amount of the last expired renewal lease. Thus, the use and occupancy to be deposited is calculated as $ 1,300 X 11 (May 2018 — March 2019) = $ 14,300 minus payments made by Respondent since that time totaling $ 9,500.

Karen May Bacdayan, J.

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