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Civil Court, City of New York.

WESTWOOD HOUSE LLC, Petitioner/Landlord, v. Arelis JAVIER, Respondent/Tenant.


Decided: July 15, 2019

Attorney for Petitioner: Robert J. Marino, Esq., Cullen & Associates, P.C., 132 Nassau Street, Suite 1220, New York, NY 10038 Attorney for Respondent: Alan G. Morley, Esq., Law Office of Alan G. Morley, 305 Broadway, Suite 610, New York, NY 10007

After conducting a hearing, the court makes the following findings and determination:

Westwood House LLC (“Petitioner”) commenced this chronic nonpayment holdover proceeding against Arelis Javier (“Respondent”) with respect to 50 West 93rd Street, Apartment 5M, New York, New York 10025 (“Premises”). The proceeding first appeared on the court's calendar on January 4, 2018 and was adjourned to February 5, 2018 because of a snow storm. On the return date, Respondent was referred to New York City Human Resources for a screening to determine whether she qualified for free legal services through the City's Universal Access to Counsel program. However, Respondent was deemed “ineligible” for an attorney through the program by the agency that conducted intake that day.

Also on February 5, 2018, the parties entered into a stipulation of settlement settling this proceeding (“Stipulation”) which was so-ordered by the Honorable Timmie Erin Elsner. Petitioner was represented by counsel and Respondent entered into the Stipulation without counsel. In the Stipulation Respondent consented to the entry of a final judgment of possession in favor of Petitioner and the issuance of the warrant of eviction forthwith. Execution of the warrant was stayed from March 1, 2018 through February 28, 2019 (“Probationary Period”) as long as Respondent paid her monthly rent in certified funds or money orders “to be received by the petitioner by the 10th day of each month.” Upon default, Petitioner could restore the proceeding to the calendar upon eight days' written notice to the Respondent for a hearing to determine whether a breach occurred, and if so, Petitioner could execute on the warrant. The Stipulation provided that “time was of the essence” with respect to payments, however, Respondent was entitled to one cure within five days of the default.

On August 13, 2018, Petitioner moved to restore the proceeding to the calendar for a hearing to determine whether Respondent had breached the Stipulation. Respondent failed to appear in court on that date and Judge Elsner adjourned the motion to September 18, 2018 and sent notice of the date to Respondent. Respondent failed to appear in court on the return date and Judge Elsner granted Petitioner's motion on default, to the extent of adjourning the proceeding to October 2, 2018 at 2:00 P.M. for a hearing. The court sent a reminder postcard to the Respondent. Respondent failed to appear again on that date and the court adjourned the hearing to November 28, 2018 at 2:00 P.M. The court sent Respondent a reminder postcard once again.

Respondent failed to appear in court on November 28, 2018 and Judge Elsner conducted an inquest to determine whether Respondent breached the Stipulation. Judge Elsner issued a decision and order after inquest dated November 28, 2018 which vacated the stay on the execution of the warrant (“Decision”). The court based the Decision upon Petitioner's agent's testimony that Respondent breached the Stipulation by failing to pay July 2018 rent. The Decision provides that Petitioner subsequently applied a check dated August 1, 2018 to July 2018 rent, a check dated August 31, 2018 to August 2018 rent and a check dated September 28, 2018 to September 2018 rent.

Respondent subsequently filed an order to show cause to vacate the default on December 18, 2018 which was adjourned to January 8, 2019 for Petitioner to file opposition and for Respondent to obtain counsel. Respondent retained the Law Offices Of Alan Morley as counsel, who filed a supplemental affirmation in support of the order to show cause. The proceeding was adjourned a few times for the parties to fully brief the order to show cause and this court heard oral argument on March 22, 2019. On that date, this court granted to the order to show cause to the extent of setting the matter down for a hearing to determine whether to vacate the Decision entered after inquest on November 28, 2018. The court selected certain dates for hearing based upon witness availability and conducted a hearing over the course of two afternoons. The parties requested closing arguments, which this court heard on July 11, 2019.

The Hearing

At hearing, Respondent testified that she has been a Pre-K teacher for twenty years and is tenured in her position. She earned a Bachelor's Degree in Education and English, a Master's Degree in Bilingual Education and a Second Master's Degree in Special Education from the Bank Street College of Education. In addition to Pre-K, Respondent teaches a course on language and literacy at the Bank Street College of Education.

Respondent explained that she understood she was obligated under the Stipulation to mail a certified check to Petitioner's agent, Stellar Management, at 156 Williams Street New York, NY 10038, which was to be received by the 10th day of each month. Respondent asserted that from March 2018 through July 2018, she timely mailed the rent in certified funds, by certified mail with return receipt requested. However, the post office did not mail the green certified receipt back to her for the payment she made on July 2, 2018. Respondent maintains that she contacted Jessica Sanchez at Stellar Management to verify whether the management company had received the July 2018 payment. Ms. Sanchez allegedly informed Respondent that they had not received her check. She instructed Respondent to track the check, and fax a copy of the check to the office. Ms. Sanchez allegedly told Respondent that “she would give her another week” for this purpose.

Respondent represented that she promptly contacted the post office and was in “constant contact” with Ms. Sanchez, updating her on the progress of the track on the check. The Post office determined the check was lost and reimbursed Respondent for the missing payment in full on September 28, 2018. On that date, Respondent hand delivered check No.768 dated September 28, 2018 in the amount of $1514.71 to the management company to cover the missing July 2018 payment. (Resp. Ex C1). She hand delivered a check to management for the October 2018 rent on that date as well. (Resp. Ex. C2). During this time, Ms. Sanchez allegedly assured her that she was not required to come to court.

Respondent stated that she never received Petitioner's August 13, 2018 motion informing her to come to court. Respondent testified that although she received one reminder postcard from the court in September or October 2018, she did not appear in court because she thought she had remedied the issue by tracking the missing payment and issuing the check to Petitioner on September 28, 2018. Respondent also asserted that she had spoken to Ms. Sanchez numerous times during her tenancy and had relied on her recommendations in the past about whether Respondent was required to come to court. Respondent explained that had she received the motion or more notices from the court, or if Ms. Sanchez, whom she trusted, had not advised not to come, she would have appeared in court.

Respondent also explained that starting in March 2018, several traumatic events occurred in her life which affected her ability to function on a daily basis and execute general responsibilities. In March 2018, her father with whom she was very close, passed away from a heart attack. Three months after her father's death, around her father's birthday, another close family member committed suicide, and Respondent “couldn't deal and ․ couldn't stop crying.” In July 2018, her close friend and colleague at the Bank Street College lost her husband to a heart attack. In August 2018, another of Respondent's friends at Bank Street, Esperanza Olivo, lost her brother to a heart attack and Respondent attended the funeral. In October 2018, Ms. Olivo's mother passed away from a heart attack and Respondent attended that funeral as well.

During this period, Respondent began psychotherapy sessions with Dr. Frank Solano, who her friends at work had recommended. Since that time, she has maintained a weekly or bi-weekly appointment with him. Respondent explained after her father died she could not cook because it reminded her of cooking for her father. She lost her “focus” and her ability to recall new information became compromised. Respondent began leaving herself notes and setting alarms as reminders of activities she previously would have recalled, such as “filing paper-work.” Respondent was visibly emotional throughout her testimony, especially when she recounted the deaths of people that were close to her. She explained that these deaths emotionally “triggered her” each time she thought her life had “return[ed] to normalcy.” In addition to memory issues, Respondent struggled with sleep issues, bouts of sadness and anxiety during this time.

Respondent called Dr. Frank Solano as a witness at the hearing. Dr. Solano has been a practicing psychologist since 1988 and is the director of the Partial Hospital Program, a psychiatric day treatment program, at Hoboken University Medical Center, where he oversees the treatment of individuals with severe and persistent mental disorders. Dr. Solano also operates a private practice in Manhattan where he treats adults and children suffering from emotional disorders or disturbances. At the hearing, the court qualified Dr. Solano as an expert in the area of mental health without objection from Petitioner.

Dr. Solano began treating Respondent on May 21, 2018. He explained that Respondent contacted him after she lost two people close to her and had been in a car accident, which contributed to her “sense of doom.” Respondent had been in emotional distress after these deaths and “excruciating” physical pain from the accident. Respondent also suffered from anemia, high blood pressure, fibroids, and food allergies. She had recently undergone gastric bypass surgery to reduce her body weight, when she met Dr. Solano. However, the emotional distress that she suffered made it difficult to maintain a proper diet after the surgery, particularly because she was sleeping only four hours per night.

When she first met Dr. Solano, Respondent “presented as someone with difficulty breathing and containing emotions” and suffered from “grief and elements of depressed moods.” Dr. Solano arrived at the initial diagnosis of Post-Traumatic Stress Disorder and Adjustment Disorder with Depressed Mood and began conducting weekly and bi-weekly therapy sessions with Respondent thereafter. Dr. Solano represented that Respondent's emotional behavior during their sessions mirrored her behavior as a witness during the hearing.

Dr. Solano explained that Respondent suffered a profound sense of loss during the November and December 2018 holiday season and kept repeating that she was “next.” He became concerned that Respondent could harm herself and administered a “Suicide Behavior Questionnaire” to determine whether she was at risk of suicide. He also administered a depression test and an anxiety test. The results indicated that Respondent was not at risk of suicide but the doctor remained cautious and ran the tests again in April 2019. In April 2019, the results of the depression questionnaire came back as moderate to severe and the results of the anxiety test came back as severe. Dr. Solano recounted that from the period of March 2018 through April 2019 at least twelve tragic events occurred in Respondent's life which impacted her ability to function.

Dr. Solano concluded that while Respondent was able to perform successfully as a teacher during the period of July 2018 through December 2018, and engage in routine activities, her compromised emotional state prevented her from recalling and concentrating on less routine tasks. He testified that Respondent experienced intrusive thoughts relating to the death of her father and others, which arrived involuntarily. These thoughts caused Respondent stress, distracted her, and impacted her memory and emotional stability. Dr. Solano explained that as a result of her stress, Respondent's cortisone levels increased which affected her recall memory and caused her to forget “explicit memories.” Unlike implicit memories, which are connected to routines and ingrained in the mind, such as working or paying rent, “explicit memories” are less familiar and require a conscious effort to recall and understand, such as having to appear in court. When suffering from stress, the doctor explained, explicit memories are more difficult to recall and process than memories connected to daily life. Furthermore, the doctor asserted that given the multitude of tragic and triggering events Respondent was experiencing, she was comforted and easily swayed by Ms. Sanchez's assurance that she did not have to appear in court as long as she kept paying the rent.

The Law and its Application

Petitioner argues that Respondent is a highly educated, competent individual who knowingly failed to appear in court on four separate occasions during the course of this proceeding. Accordingly, Petitioner maintains that Respondent's defaults cannot be excused and that per the Decision, Petitioner is entitled to execute on the warrant of eviction. Respondent argues that the defaults should be excused based upon a variety of factors and that the testimony at hearing supports staying execution of the warrant for a hearing on the merits.

A party seeking to vacate an order entered upon his or her default must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the claim (see CPLR 5015[a][1]; US Bank N.A. v. Brown, 147 A.D.3d 428, 46 N.Y.S.3d 107 [1st Dept. 2017]; Caba v. Rai, 63 A.D.3d 578, 580, 882 N.Y.S.2d 56 [1st Dept. 2009]; Mut. Mar. Off., Inc. v. Joy Constr. Corp., 39 A.D.3d 417, 835 N.Y.S.2d 88 [1st Dept. 2007]). It is within the court's discretion to determine whether a party has presented a reasonable excuse for the default (Rugieri v. Bannister, 22 A.D.3d 299, 305, 802 N.Y.S.2d 140 [1st Dept. 2005]; Katz v. Robinson Silverman Pearce Aronsohn & Berman, LLP, 277 A.D.2d 70, 74, 717 N.Y.S.2d 13 [1st Dept. 2000]; City of New York v. Elghanayan, 214 A.D.2d 329, 625 N.Y.S.2d 887 [1st Dept. 1995]).

However, “[a]n intentional default is ipso facto inexcusable, and should not be vacated” (Wilf v. Halpern, 234 A.D.2d 154, 154, 651 N.Y.S.2d 30 [1st Dept. 1996]; Cipriano by Cipriano v. Hank, 197 A.D.2d 295, 610 N.Y.S.2d 523 [1st Dept. 1994]; Kent v. Fearless Realty, Inc., 174 A.D.2d 499, 571 N.Y.S.2d 276 [1st Dept. 1991]; Tucker v. Rogers, 95 A.D.2d 960, 464 N.Y.S.2d 59 [3d Dept. 1983]) (“Having chosen to take no action to protect his interests, defendant should not now be relieved of his default”). Moreover, “a court's discretionary power under CPLR 5015(a) to relieve a party from a judgment should not be exercised where ‘the moving party has demonstrated a lack of good faith, or been dilatory in asserting its rights’ ” (Calderock Joint Ventures, L.P. v. Bethlehem Mitiku, 45 A.D.3d 452, 453, 848 N.Y.S.2d 36 [1st Dept. 2007] citing Greenwich Sav. Bank v. JAJ Carpet Mart, Inc., 126 A.D.2d 451, 510 N.Y.S.2d 594 [1st Dept. 1987]).

The court has the general power to vacate defaults in the furtherance of justice and under such circumstances as may be just (Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842 [1889]). It is never too late to dispense such justice (Paradis v. Doyle, 291 N.Y. 503, 506, 50 N.E.2d 645 [1943]). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876-877, 800 N.Y.S.2d 613 [2nd Dept. 2005]; I & I Jewelry Corp. v. Farinella, 63 Misc. 3d 126[A], 2019 WL 1234099 [App. Term 2019]) [Court vacated default where litigant suffered from “mental infirmity.”]). Courts strongly prefer resolving disputes on the merits (see Horseshoe Realty, LLC v. Meah, 47 Misc. 3d 127[A], 2015 WL 1400554 [App. Term 2015]; Jones v. Jones, 43 Misc. 3d 141[A], 2014 WL 2462794 [App. Term 2014]; Hoskie Co., Inc. v. Wu, 112 A.D.3d 497, 978 N.Y.S.2d 838 [1st Dept. 2013]).

Moreover, the court recognizes “the public policy of this state, and of this court, to protect vigorously the rights of the mentally ill” (see Vinokur v. Balzaretti, 62 A.D.2d 990, 403 N.Y.S.2d 316 [2nd Dept. 1978]; Cabrini Blockfront LLC v. J.N., 63 Misc. 3d 1221[A], 2019 WL 1941781 [Civ. Ct., New York County 2019]). This policy recognizes the underlying humanity of those who appear before the court, and is deeply embedded in our prolific system of justice (see Wurster v. Armfield, 175 N.Y. 256, 67 N.E. 584 [1903]). In those instances, courts favor vacatur of judgments against those that suffer from mental infirmities (Matter of New York Found. For Citizens v. Hamilton, 170 A.D.3d 543, 96 N.Y.S.3d 52 [1st Dept. 2019]; Cabrini Blockfront LLC v. J.N., 63 Misc. 3d 1221[A]; I & I Jewelry Corp. v. Farinella, 63 Misc. 3d 126[A]).

At hearing, Petitioner challenged the legitimacy of Dr. Solano's diagnosis of Post-Traumatic Stress Disorder and Adjustment Disorder with Depressed Mood. However, the title, severity or permanence of Respondent's mental illness, if any, is of no moment. The emotional impact of twelve tragic events in Respondent's life around the time of the defaults compromised her mental state and prohibited her from adequately processing information. It is precisely these individuals who suffer from lapses in cognition due to a compromised mental state that the courts have a duty to protect.

Furthermore, Petitioner failed to rebut Respondent's testimony that its agent, Jessica Sanchez, instructed her not to appear in court. Courts have found that reliance on an adverse party's representation not to come court precludes a finding of wilfulness (Mita v. Bianchi, 286 A.D.2d 376, 728 N.Y.S.2d 710 [2d Dept. 2001]; Skinner v. Skinner, 90 A.D.2d 845, 456 N.Y.S.2d 92 [2d Dept. 1982]). Under these circumstances, the court finds that Respondent's default on the date of inquest, which occurred when Respondent did not have the benefit of legal counsel, was excusable.

Respondent has also raised a potentially meritorious defense to Petitioner's claim that she defaulted under the terms of the Stipulation (see Harrelson v. Jackson, 63 Misc.3d 133[A], 2019 N.Y. Slip Op. 50450[U], 2019 WL 1462123 [App. Term 2019]; Genuine Realty Corp. v. Mitchell, 61 Misc. 3d 132[A], 2018 WL 5046890 [App. Term 2018]). Respondent maintained that she timely mailed the July 2018 payment, on July 2, 2018, by certified mail and in certified funds. She tracked the payment through the post office, the payment was deemed “lost” and Respondent was reimbursed for the payment. Respondent provided Petitioner's agent with proof of the payment, mailing and tracking, and attached the proof to her underlying motion as well. Once Respondent was reimbursed for the lost payment she immediately tendered the money to management. It is further undisputed that Respondent has otherwise fully complied with the terms of the Stipulation.

Accordingly, after hearing, the Decision entered after inquest and upon Respondent's default on November 28, 2018 is vacated. The proceeding is adjourned, and execution of the warrant is stayed, through September 4, 2019 at 10:30 A.M. for control purposes including the selection of a date for a hearing to determine whether Respondent breached the Stipulation. The parties may retrieve their exhibits on the return date.

This constitutes the Decision and Order of this Court.

Heela D. Capell, J.

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