The Respondent, unrepresented, moved by Order to Show Cause on June 4, 2004, to be restored to possession. The post eviction motion was calendared for June 11, 2004, in Part E/M. However, on June 11, the courts were closed for President Regan's funeral and the post eviction motion was rescheduled by the Clerk to June 23, 2004, after speaking to Petitioner's attorney by phone. A post card was sent to the Respondent.

Factual History:

This case was assigned to Part M, the designated part for persons who are in the military [*2]or are dependent on someone in the military. Since the Respondent is in the military, this holdover proceeding was transferred to Part M on April 4, 2002, and Counsel was assigned to the Respondent. The Respondent was the prior owner of the subject premises and the Petitioner, Secretary of Housing and Urban Development (hereinafter "HUD") obtained ownership through foreclosure.

On January 8, 2003, there was a stipulation of settlement with a final judgment of possession and a warrant of eviction. In addition, the stipulation provided for an opportunity for Respondent to submit an offer to repurchase the premises. (See stipulation of settlement dated January 2003.) On January 22, 2004, the stay was extended to April 30, 2004, and the terms of the January 8, 2003, stipulation remained the same.

On June 23, the assigned Judge was at a Judicial Conference and the motion was referred to Part A, which was the emergency assigned part. The Court heard arguments from both sides.

The Respondent sought relief to be restored to possession after she was evicted on June 4. She is a member of the United States Army and was activated to military duty after the September 11, 2001, terrorist attack. During her training and preparation for deployment to Iraq, she became ill. She was hospitalized on several occasions from October 2003 through May 2004. She was in intensive care in May 2004. She was at her mother's home recuperating when she was evicted on June 4. She notified the Petitioner's Counsel of her medical condition and hospitalization. (See Letters of April 27 and May 20, 2004 by Department of Veterans Affairs New York Harbor Health Care System Program Support Assistant.) She further stated that all Use and Occupancy was paid through June 2004. The Respondent appeared in full military uniform, showed her current military identification and proof of her hospitalization. Because of her medical condition, she could not travel to Iraq until she received medical clearance. She was requesting restoration to possession and more time until a decision is made for her to go to Iraq or to obtain available military housing.

On June 23, the Petitioner orally opposed the motion and disputed that the Respondent was in the military. Petitioner's Counsel, Mr. Joseph Battista, argued that a website search was conducted, on March 3, 2004, on the Defense Manpower Data Center, which result showed that the Respondent was 'currently not on active military duty'. On that basis, the warrant of eviction was executed. Mr. Battista stated that the Use and Occupancy for May and June was returned but did not know when the payments were returned.

The Court restored the Respondent to possession and ordered the Petitioner to turn over the keys to the Respondent. Mr. Battista, the Petitioner's attorney, requested until June 25 to turn over the keys since he had to obtain the keys from the Petitioner who was not in the City. The application was granted and the Court issued a preliminary order of restoration pending the filing of an affidavit of compliance by June 25. On June 24, Mr. Battista informed this Court's personnel that he was not complying with the Court's Order. The Court issued a further Order for both sides to appear on June 30 for a full hearing. (See Orders of June 23, 2004 and June 24, 2004.) The Respondent was assigned new counsel for the hearing.

The Petitioner filed written opposition on June 28, 2004. The hearing commenced on June 30, 2004.

At the hearing, the Respondent testified and repeated the same information as previously [*3]stated on June 23. She worked at the rescue operation at the World Trade Center after the September 11 incident. While she was waiting to be deployed to Iraq, she became sick and was hospitalized in June 2003, October 2003, April 2004 and was in intensive care in May 2004. She was hospitalized again in July 2004. She is now awaiting medical clearance to be redeployed to Iraq. She stated that after she informed the Petitioner's Counsel of her medical condition, and in reliance on their continuing negotiation for her to repurchase the subject premises, pursuant to the January 8 agreement, and the several phone conversations she had with the Petitioner's Counsel, she was under the belief that the eviction would be postponed. The Respondent also testified that she made several requests to obtain the buyout price to repurchase the premises but did not receive any communication of whether her offer was accepted or rejected. In addition to speaking to Petitioner's Counsel, she faxed a letter on May 20 confirming her hospitalization in intensive care. She stated she spoke to the Petitioner's Counsel a few days before the eviction and told Petitioner's Counsel that she could not walk and that she was recuperating at her mother's home. She again showed her military identification and was in full military uniform.

The Attorney, who handled the case previously and spoke to the Respondent, testified. She admitted that she was aware of the Respondent's military status, her medical condition, her hospitalization and that she was under bed care. The attorney testified that she conducted a military website search on March 3, 2004, and, after the eviction, on June 22, 2004. The attorney testified that the website search showed that the Respondent was 'currently not on active military duty'. The attorney was unable to state what information was used to conduct the website search on the Department of Defense Manpower Data Center. The attorney also stated that she tried to negotiate to have the Respondent repurchase the subject premises. However, she admitted that she did not inform the Respondent that the negotiation had failed and her offer was rejected.

The Petitioner also produced a process server who did not have any knowledge of whether, when or how the eviction notice was served.

Discussion and Conclusion:

On April 4, 2002, a family member appeared in court on behalf of the Respondent. The family member give the court a letter from the Department of the Army showing that the Respondent was ordered to perform Military Duty from September 11, 2001. The Court assigned an attorney on behalf of the Respondent to contact JAG. The attorney contacted JAG and the Respondent appeared on the next court date. The Assigned Counsel stated the Respondent's military status was never an issue based on his contact with JAG, the appearance in full military uniform and the Department of the Army letter to the Court.

On January 8, 2003, a stipulation of settlement was entered into with the Petitioner's Counsel and Counsel for the Respondent. After the first stipulation, there were other appearances in Court by the Respondent who appeared unrepresented. Each subsequent stipulation and order stated that the Respondent was in the military. The Petitioner's Counsels who negotiated stipulations of settlement and the attorney who testified did not dispute that the Respondent is in the military. For this hearing, the Respondent produced her military identification and was in full military uniform. It is not clear why the Petitioner's Counsels did a military search since the Court confirmed from the commencement of this proceeding on April 4, 2002, that the Respondent is in the military (emphasis added). See, Court's file which [*4]includes correspondence to and from the Department of the Army, stipulations of settlement with the Respondent and Orders by the Court.

Assuming the Military status was in question, the alleged military search was done more than 30 days prior to the eviction. The military search was done on March 3, and, after the eviction, on June 22. The eviction was June 4. The Petitioner relied upon the status "currently not on active military duty" to make the determination that the Respondent was not in the military but failed to show what information was used in the website search to obtain that information and reach that conclusion.

Pursuant to 50 U.S.C. App. §511, covered servicemembers under the Servicemembers Civil Relief Act include servicemembers "for any period of time when he or she is absent from duty because of sickness, wounds, leave or other lawful cause (i.e., he [she] is still a SM even if (sic) absent from active duty for one of the above reasons)". Therefore, the status of 'currently not on active military duty', assuming that a proper request and website search was conducted, only confirms that the Respondent is a servicemember covered for protection under 50 U.S.C. App. §511 since she was sick.

Under 50 U.S.C. App. 582, in order to determine the military status of a Respondent, the Petitioner is required to apply for information and the Department of Defense must issue a statement as to the military service. A search through the website is appropriate if the Petitioner makes the appropriate application to the Defense Manpower Data Center with a letter on the firm or agency letterhead for the Defense Manpower Data Center military verification web application and request entity for the search. There are specific requirements that must be met and information that must be provided before a web search is authorized and completed on the Defense Manpower Data Center. None of these procedures were used or proved by the Petitioner.

The issue before the Court is not whether the Respondent is in the military since there is ample proof in the record from the commencement of this proceeding and during this hearing that she is in the military (emphasis added). The core issue is whether the eviction was proper and executed in good faith. The Respondent was under the belief that there was continuing negotiation to repurchase the premises as agreed in the January 8 stipulation, phone conversations with Petitioner's Counsel and subsequent negotiations and stipulations of settlement. She was justifiably led to rely on those negotiations and not to look for an alternative location. Her last inquiry to the Petitioner's attorney was in May 2004. At no time was she told that HUD declined her offer to repurchase the premises. In addition, she became sick and was hospitalized. Because of her reliance on the agreement and her being hospitalized, she did not vacate on April 30. There is no proof that the Respondent's request for a buyout price was communicated to HUD. If it was, there was not communication to the Respondent that her request was rejected. It was incumbent upon the Petitioner's Counsel to inform the Respondent that HUD declined her request to repurchase the premises and that the negotiation had concluded.

There was no proof that a proper notice of eviction was served or that a Marshal properly executed the warrant of eviction since the process server did not have any knowledge of the same. No other witnesses were produced to show proper service of the notice of eviction and execution of the warrant of eviction. [*5]

The Petitioner's Attorney, Mr. Battista, was disingenuous throughout this proceeding. His application on June 23 for more time to turn over the keys was a ruse to avoid compliance with the Court's Order. His application on July 1 for a continuance to July 12 to produce witnesses was deliberate to prolong the hearing. Although there was sufficient proof in the record and the Respondent's identification in court of her military status, he continued to dispute in bad faith that the Respondent is in the military.

Based on the Court's preliminary finding on June 23 and the Petitioner's unreadiness to proceed with the hearing on July 1, 2004, the Respondent was temporarily restored to possession on July 1.

The Court finds that the Petitioner' Counsel, Mr. Battista acted in bad faith. This post eviction motion was rescheduled from June 11 to June 23 by the Clerk after speaking to Petitioner's Counsel. It was Mr. Battista's avoidance and noncompliance on June 23 to 25 that caused the lengthy delays and prolonged procedures to the detriment of the Respondent who was out of possession and was unable to show whether she was wrongfully evicted. It was Mr. Battista's dilatory tactics on July 1 and July 12, for his failure to be ready with his witnesses, that caused the protracted delays of this post eviction hearing. The Petitioner is Secretary of Housing and Urban Development. The Respondent is a member of the United States Military who is trying to go to the front line in Iraq to fight for the safety of the Citizens of the United States. More pointedly is the Petitioner's Counsel, Mr. Battista's, attitude to the Respondent when she said she was in the military. He arrogantly denied and strenuously disputed that the Respondent is a member of the military. He argued that the military uniform and identification was not authentic and that the Federal Government may be paying the Respondent for something other than for her service in the Military. Although Mr. Battista made this bald face accusations, he could not produce any evidence or witness to show that there was any contradiction of the Respondent's military status. The combination of all of the above show great disrespect to persons in the United States Military and the court's finding that this proceeding was properly identified as a military case from its commencement. In addition, the Respondent justly relied on the agreements to negotiate the repurchase of the premises. Petitioner's Counsels failed to negotiate in good faith regarding the buyout price requested by the Respondent. It was incumbent on the Petitioner's Counsels to be forthright with the negotiation.

The Court further finds that the warrant of eviction was not properly served pursuant to RPAPL §735.

All stays remain in full force and effect pending a final determination of this motion for further stay and extension of time. The motion is set down for a hearing pursuant to 50 U.S.C. App §511 and 50 U.S.C App §522.

Dated: September 22, 2004_________________________________

Pam Jackman-Brown, JHC

Copies to both sides: September 28, 2004

Attorney for Petitioner:

Eschen & Frenkel, LLP [*6]

BY: Joseph Battista, Esq.

93 East main Street

Bay Shore, NY 11706

631-666-7775

Attorney for Respondent:

Queens Legal Services

BY: Bruno Bianchi, Esq.

89-00 Sutphin Blvd

Jamaica, NY 11435

718-657-8622