LLC v. JEWISH ASSOCIATION SERVING THE AGING

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Civil Court, City of New York.

E & V Acquisition, LLC, Petitioner-Landlord, v. Margaret H., Respondent-Tenant, JEWISH ASSOCIATION SERVING THE AGING, Respondent-Guardian.

L & T No.73580/14

Decided: September 25, 2019

Jeanine Floyd, Esq. (attorney for the landlord, E & V Acquisition, LLC) Morris Mitrani, Esq. (attorney for the Article 81 ward-tenant)

In this nuisance holdover proceeding, pursuant to the petitioner-landlord's motion, the Court held a hearing to determine whether the respondent-tenant breached the so-ordered stipulation of settlement and is entitled to a final judgment of possession and warrant of eviction. For the reasons set forth below, the Court finds that a breach did occur, and that the petitioner is entitled to a judgment of possession and warrant of eviction. However, execution of the warrant shall be stayed for six months to allow the respondent an opportunity to further cure the condition. Execution of the warrant shall be permanently stayed upon a cure.

The petitioner-landlord, E & V Acquisition, LLC (hereinafter petitioner), commenced the instant nuisance holdover action against respondent-tenant (hereinafter respondent) Margaret H. on August 5, 2014. Ms. H., who is 80 years old, currently occupies Apartment 1F at 303 West 87th Street in Manhattan, and was granted a life estate when her family originally sold the building. See Decision/Order of the Hon. Andrea Masley dated July 19, 2016. The current owners of the building, Beryl Silver and Brad Gross, purchased the building in 2015, after this lawsuit was commenced, with the knowledge that Ms. H. was in possession of Apartment 1F, and held a life estate.

In November 2009, the Hon. Shlomo S. Hagler adjudicated Ms. H. to be an incapacitated person after a full hearing, pursuant to Article 81 of the Mental Hygiene Law (hereinafter MHL). See Order and Judgment Appointing a Guardian of the Person dated November 24, 2009. Justice Hagler found that Ms. H. has functional limitations and that she is likely to suffer harm because of an inability to provide for her personal needs. He further found that Ms. H. is unable to adequately understand and appreciate the nature and consequences of such inability. Jewish Association for Services for the Aged (hereinafter JASA) was appointed as Ms. H.'s guardian. JASA's authority included, inter alia, defending Ms. H. in the housing court proceeding, conducting heavy-duty cleanings of her residence, obtaining the appropriate level of home care services, entering into contracts, subject to court approval, and advocating for structural repairs to the apartment. JASA's authority was subsequently expanded, and JASA was given the power to be the guardian of Ms. H.'s property, which includes the management of Ms. H.'s finances, and marshaling and managing her assets. See Order of the Hon. Andrea Masley dated January 29, 2015. The guardian's powers were again expanded to include the authority to temporarily exclude Ms. H. from the apartment to allow access for heavy-duty cleaning, repairs and extermination. See Order of the Hon. Shawn T. Kelly dated July 30, 2018.

On July 28, 2015, the parties entered into a stipulation of settlement that included terms intended to address the nuisance condition in the apartment. The terms included keeping the premises free from animal nuisance, performing regular cleanings twice per month, maintaining all means of egress free and clear of personal property and providing monthly access to the landlord to perform extermination services. It further provided that if the respondent violated any of the terms of the stipulation within 15 months of the so-ordered stipulation, the petitioner was permitted to commence a proceeding for the sole determination of whether there had been a breach of the stipulation. The stipulation also provided that if a regularly scheduled cleaning did not take place, which was unforeseeable and caused by a force majeure, the missed cleaning would not constitute a breach of the stipulation.

On September 24, 2015, just two months after the execution of the stipulation, the petitioner moved by Order to Show Cause seeking a judgment of possession for breach of the stipulation, alleging that no cleanings had taken place, and that further accumulation of clutter in the apartment caused an unsanitary condition which threatened the health and safety of other occupants of the building. JASA opposed the motion, relying on the force majeure provision, contending that the petitioner had not cooperated with JASA's attempts to coordinate a cleaning schedule, and that the circumstances complained of by the petitioner were beyond JASA's control. A hearing was held by the Hon. Andrea Masley on July 19, 2016, to determine whether the respondent had breached the July 28, 2015 stipulation. The Court found that a breach had occurred, but that any delay in compliance with the probationary stipulation of July 28, 2015 was caused by a force majeure, that was beyond the control of JASA, resulting in a delay of the stipulated cleanings.

In reaching its determination, the Court took note of a heavy-duty cleaning that had taken place over the course of three days, monthly extermination, and the close supervision of JASA's social worker who assisted in the prompt application to Medicaid for regular housekeeping services as soon as JASA certified that the bedbug infestation was eliminated. In denying the petitioner's motion, the Court credited Ms. H.'s long residence in the apartment, and valuable life estate. The Court also noted that the petitioner was aware of the bedbug infestation and hoarding situation at the time it entered into the stipulation, and also knew that the situation could not be resolved overnight. Notably, the Court found that the respondent's hoarding condition began prior to the petitioner's purchase of the home, and that the petitioner could not now use Ms. H.'s disability to extinguish her life estate. The Court extended the probationary stipulation for an additional year to October 28, 2017.

On January 18, 2018, another stipulation of settlement was entered into between the petitioner and the Article 81 guardian that incorporated and modified the terms of the previous stipulation of July 28, 2015, and extended the probationary period for one year to January 18, 2019. The terms of the stipulation included, inter alia, monthly inspections of the premises by the petitioner, continuation of housekeeping and home care services, bedbug extermination, and heavy-duty cleanings every six months. Thereafter, the petitioner moved by Order to Show Cause dated September 25, 2018, for a hearing to determine whether the respondent breached the probationary stipulations.

The Court held a hearing pursuant to the petitioner's motion over several court dates. The petitioner introduced witness testimony and documentary evidence of violations of the stipulation by Ms. H., which include bedbug and roach infestation, clutter and debris that resulted in limited accessibility to the apartment, and foul and musty odors in the apartment. Alan Malka, a supervisor from Home Clean Home (HCH) who inspected the premises a few weeks prior to the hearing, testified that according to his observation, the apartment was infested with roaches and bedbugs. Another witness, Ryan Katz, a pest management specialist, testified that he has regularly inspected the apartment since September 2017, and that it has consistently been heavily infested with roaches and bedbugs. Photographs taken by Mr. Katz in August 2018 show the cluttered condition of the premises, which prevented him from performing an extermination at that time. He further testified that he observed that the roach and bedbug infestation had migrated into other portions of the building.

Beryl Silver testified that she resides in the building and inspected the apartment in November 2017. The petitioner introduced 31 photographs from the inspection depicting the cluttered and unsanitary condition of the apartment, and a roach and bedbug infestation. Numerous photographs were also introduced to show roach and bedbug infestation in other areas of the building which the petitioner contends has migrated from Ms. H.'s apartment. Further, documentary evidence presented at the hearing included two Housing Preservation and Development (HPD) violations based on an inspection conducted on January 24, 2019, stemming from roach and bedbug infestation.

The Court notes that the guardian does not dispute that the stipulation was breached. At the hearing, the guardian's case consisted of witness testimony to establish that the respondent is entitled to a stay of the execution of the warrant of eviction pursuant to RPAPL § 753(4). The Court ordered written summations after the hearing. The petitioner's central argument on summation is that the stipulation was breached, and the respondent is not entitled to cure said breach. The petitioner relies on the express language of the stipulation which provides that in the event of a breach of the terms of the stipulation, "[r]espondents shall not be entitled to cure their default and the Court shall enter a final judgment of possession in favor of petitioner and issuance of a warrant of eviction forthwith." The petitioner argues that based on the express terms of the stipulation, the respondent does not have a statutory right to cure the violations pursuant to RPAPL § 753(4). The petitioner further argues that the terms of the stipulation, not the tenant's lease, govern the rights and obligations of the parties and the remedies available when a breach of the stipulation occurs. According to the petitioner, since the respondent does not dispute that the stipulation has been violated, the Court is required to enter a final judgment of possession in favor of the landlord, and that a warrant of eviction should be issued forthwith.

On summation, the guardian argues that Ms. H. has a life estate in the subject premises, which is tantamount to ownership, and as such she is a life tenant entitled to exclusive possession of the property for the duration of her life. Moreover, the guardian points out that the landlord has not presented any evidence to establish that it may lawfully extinguish Ms. H.'s life estate by simply commencing a holdover proceeding. See Torre v Giorgio, 51 AD3d 1010 (2d Dept 2008); Matter of Gaffers, 254 AD 448 (3rd Dept 1938); Thor v Stephens, 169 Misc 2d 832 (Sup Ct, Westchester County 1995). The guardian further argues that the petitioner has violated the covenant of good faith and fair dealing in that the landlord failed to communicate with the guardian about the breaches of the probationary stipulation by Ms. H. Finally, the guardian argues that it produced evidence at the hearing establishing that the conditions in the apartment have improved, and that a permanent stay on the execution of the warrant is appropriate under these circumstances.

The Court recognizes that two-attorney stipulations are favored by the courts, and not lightly set aside. See Hallock v State of New York, 64 NY2d (1984). However, the Court must consider the fact that Ms. H.'s attorney represented an incapacitated person who is unable to provide for her own needs, and unable to understand and appreciate her inabilities. The Court notes that in arguing that the respondent is not entitled to an opportunity to cure, the petitioner does not appear to cite to any cases involving tenants who have been adjudicated incapacitated under MHL Article 81. Recent case law makes clear that the court has broad discretion in determining whether a disabled tenant should be given an opportunity to cure a condition, and must consider the equities in reaching that determination. In Matter of Prospect Union Assoc. v DeJesus, 167 AD3d 540 (1st Dept 2018), a case involving a disabled Article 81 ward, the Appellate Division, First Department disagreed with the housing court's determination that the tenant was not entitled to a permanent stay of eviction because the conditions in the apartment were ongoing and not timely cured. The court went on to state that there needs to be a "proper evaluation of whether the Article 81 guardian's management of their personal (and property) affairs will now make a difference in their ability to stay in their home without harming others." Id. at 543. The court also concluded that the appointment of an Article 81 guardian sufficiently establishes that the tenant is "handicapped" within the meaning of the Fair Housing Act, and as such "a landlord is obligated to provide a tenant with a reasonable accommodation if necessary for the tenant to keep his or her apartment." Id. The trial court must consider whether with ongoing supportive services and monitoring, tenants can continue to live in the apartment without harming or affecting their neighbors. Id. at 544. The issue for determination is "whether, with the involvement of the [A]rticle 81 guardian and its management of their affairs, tenants can fulfill their lease obligations and avoid eviction." Id. Furthermore, the court remanded the case for a hearing to determine whether the accommodations proposed by the guardian were reasonable, whether they would curtail the recurrence of the nuisance, and whether a permanent stay of eviction was appropriate. Id.

Similarly, in 642-654 Whippersnapper LLC v Mahoney, 63 Misc 3d 46 (App Term, 1st Dept 2019), the Supreme Court, Appellate Term, relying on DeJesus, remanded the matter back to the housing court for a hearing on whether the tenant was entitled to a permanent stay of eviction as a reasonable accommodation. Mahoney involved a stipulation of settlement that was entered into by the tenant's guardian ad litem. An Article 81 guardian was subsequently appointed, and the guardian performed a heavy-duty cleaning with extermination services, and implemented home care services to ensure that its ward had regular assistance to maintain the apartment in a sanitary condition. The court held that the circumstances were sufficient to warrant a temporary stay and remittal on the issue of a permanent stay. In noting that the First Department's holding in DeJesus represents a clear departure from the prior approach previously taken in nuisance cases, the Mahoney court recognized that:

[w]hile the protection of the premises and the other tenants who reside therein remains paramount, serious efforts must be undertaken to examine whether such risks can be minimized to thus afford a reasonable accommodation to a physically or mentally disabled tenant, even for one whose conduct has previously been highly problematic. Id. at 49 (internal citations and quotation marks omitted), quoting Matter of Prospect Union Assoc. v DeJesus, 167 AD3d at 543.

The Mahoney court also instructed the housing court to consider equitable principles in determining whether to provide the tenant an opportunity to cure, including assessing factors such as the tenant's advanced age, disability, the hardship that an eviction would cause, and the tenant's long-term tenancy of over 50 years at the subject apartment. Mahoney, 63 Misc 3d at 50.

In 529 West 29th LLC v Reyes, 63 Misc 3d 65 (App Term, 1st Dept 2019), the Supreme Court, Appellate Term, affirmed the housing court's determination that the tenant had a handicap under the Fair Housing Act, and was thus entitled to a reasonable accommodation. The court held that a stay of the execution of a warrant of eviction for six months was an objectively reasonable accommodation. Reyes involved a tenant who had been diagnosed with schizophrenia, however the evidence established that the tenant's condition had greatly improved as a result of an intensive hospital treatment program and social service assistance. Significantly, the court held that the determination of whether an accommodation is required is highly "fact specific," and should be made on a case-by-case basis. The overarching guiding factor, however, is that a landlord has an obligation to provide a tenant with a reasonable accommodation, if necessary, for the tenant to remain in the apartment. Id. at 68. See also Diego Beekman Mut. Hous. Assoc. Hous. Dev. Fund Corp. v McClain, 63 Misc 3d 1218(A), 2019 NY Slip Op 50580(U), *3 (Civ Ct, Bronx County 2019) (holding that a landlord is obligated to provide a tenant with a reasonable accommodation as there is "a clear public policy of keeping rent-stabilized tenants in their homes whenever possible").

Moreover, Ms. H. has a life estate in the premises, and is therefore vested with a possessory interest in the property, not merely the right to occupy it. Matter of Gaffers, 254 AD at 451. "A life tenant is tantamount to the owner of the property and is entitled to all of the benefits and burden of such ownership." Matter of Strohe, 5 Misc 3d 1028(A), 2004 NY Slip Op 51592(U), *2 (Sur Ct, Nassau County 2004) (internal quotation marks omitted). Further, life estates are strongly favored in the law, and a life tenant may, under certain circumstances, be able to force the sale of the property and collect the value of her life estate. Matter of Gaffers at 452. The petitioner's submissions ignore Ms. H.'s life estate in the apartment, and do not establish a legal basis for extinguishing her rights as a life tenant. In fact, the equities here demand a different result.

In light of the foregoing, the Court finds the petitioner's arguments unavailing. At the hearing, JASA caseworker, Nicole Osbourne, testified that she and a co-worker facilitated a heavy-duty cleaning of Ms. H.'s apartment on January 15, 2019. Diamond Power Cleaning was contracted to perform the cleaning, and Ms. Osbourne directed them to remove any furniture made out of wood, as wood retains bedbugs. Ms. Osbourne indicated that the cleaning lasted for approximately five hours, and that 90 percent of Ms. H.'s belongings were taken out of the apartment and discarded. Ms. H.'s bed and furniture were all discarded, and all of her clothing was bagged, removed and laundered. Ms. Osbourne further testified that a chemical bedbug exterminator came after the heavy-duty cleaning. After the extermination and heavy-duty cleaning, Ms. Osbourne took photographs of the apartment, which were entered into evidence. The photographs clearly show that the living conditions of the apartment were healthier and more sanitary, and that there was very little clutter and debris. Ms. Osbourne further indicated that Ms. H.'s financial resources allowed for follow-up extermination services.

JASA social work supervisor, Nicole O'Meally, testified that Ms. H.'s current home care assistance plan includes four hours each day, four days per week for a total of 16 hours per week of assistance. Ms. O'Meally indicated that JASA has secured an increase in home care coverage to ensure that an attendant is in the home seven days a week. Ms. O'Meally specified that the home care plan going forward is that in addition to the 16 hours that is already in place, a home attendant will be present each Tuesday, Saturday and Sunday from 1:00-4:00 p.m. The scope of the attendants' responsibilities will include assistance with activities of daily living such as personal care, food shopping, cleaning, and taking out the garbage. Furthermore, having a home attendant on the premises on a daily basis will enable the guardian to have more control over the condition of the home. The home attendant will be able to send the guardian photographs of the condition of the apartment on a daily basis, and the guardian will be able to instruct the home attendant which items should be discarded, thereby limiting the accumulation of clutter and debris. The guardian also presented the testimony of new JASA social worker, Jennifer Joseph, who began working on Ms. H.'s case in April 2019. Ms. Joseph testified that she conducted home visits in April and May 2019. For both visits, the apartment was clean, free of odors, neat and in good condition. Ms. Joseph was able to do a walk-through of the apartment, and observed all areas of the apartment. Ms. Joseph did not observe any accumulation of food or refuse. Ms. Joseph also described Ms. H.'s appearance as well-dressed for the weather, clean, neat, and free of odors.

In determining whether to allow a further stay this Court is also guided by recent legislation enacted on June 14, 2019, the Housing Stability and Tenant Protection Act of 2019 (hereinafter HSTPA). The HSTPA has increased the protections for tenants statewide, and augments, amends, repeals and enacts provisions of a wide range of laws salient to rent regulation and landlord-tenant relations in New York. Specifically, HSTPA, 2019 Sess. Law News of NY Ch. 36, pt. M, § 21 (S. 6458) [McKinney's] ), amends RPAPL § 753(1), and allows a judge to issue a stay of eviction for up to one year  1 where the tenant cannot secure suitable housing in the same neighborhood, or where the eviction would cause "extreme hardship." Similarly, the new legislation provides an automatic 30-day stay of eviction where the eviction is based on a violation of a provision of the lease to allow the tenant an opportunity to cure the breach. The justification behind these expanded timeframes is to "allow more leniency throughout any eviction proceeding, including stays of eviction and executions of warrants; and ensure that any eviction that is executed is done so in the interest of justice." Legis. Mem. in Support of NY State Senate Bill, 2019 Sess. Law News of NY Ch. 36 (S. 6458) [McKinney's].

Equity would not be served with the immediate execution of a warrant of eviction. Accordingly, based on the foregoing, the petitioner's motion is granted insofar as the petitioner is entitled to a final judgment of possession and warrant of eviction. However, after a careful review of the facts and circumstances of this case, and upon balancing all of the equities, the execution of the warrant is stayed for six months to allow the respondent to cure the condition without prejudice to JASA to seek a further extension of the stay, if necessary, to effectuate a cure. Execution of the warrant shall be permanently stayed upon a cure of the nuisance condition. Further, the terms of the probationary stipulations of July 28, 2015 and January 18, 2018 shall remain in full force and effect, and are extended nunc pro tunc for one year, to September 25, 2020.

IT IS HEREBY ORDERED, that a final judgment of possession and warrant of eviction shall issue in favor of the petitioner; and it is further

ORDERED, that execution of the warrant of eviction is stayed for six months to allow the respondent an opportunity to cure the nuisance condition, without prejudice to JASA to seek a further extension of the stay, if necessary, to effectuate a cure; and it is further

ORDERED, that execution of the warrant of eviction shall be permanently stayed upon a cure of the nuisance condition, and it is further

ORDERED, that the terms of the probationary stipulations of July 28, 2015 and January 18, 2018 shall remain in full force and effect, and are extended nunc pro tunc for one year, to September 25, 2020.

This constitutes the decision and order of the Court.

Dated: September 25, 2019

____________________________________

HON. Lillian Wan, J.S.C.

FOOTNOTES

1.   The prior statute allowed a stay for up to six months.

Lillian Wan, J.