This is a summary nonpayment proceeding in which respondent, now represented by counsel, moves to be restored to possession of the subject premises. Respondent argues that he was not served with the petition and notice of petition, thus requiring vacatur of the judgment and warrant. Alternatively, respondent argues that he has established good cause to warrant his restoration to possession by virtue of, inter alia, his recent payment of all arrears and eviction fees herein. Petitioner opposes respondent's application, arguing that: (a) it effected proper service of the petition and notice of petition upon respondent; and (b) respondent's tenancy is undesirable, thus barring his restoration as a matter of law. For the reasons set forth below, respondent's motion is granted.

Petitioner commenced this nonpayment proceeding on October 20, 2004, following alleged personal service of the petition and notice of petition upon respondent. Following respondent's default in answering, a judgment in the sum of $215.50 was entered on November 26, 2004 and a warrant of eviction was subsequently issued to NYC Marshal Richard McCoy. On February 9, 2005, respondent was evicted from the subject premises.

On February 25, 2005, respondent moved by pro se order to show cause returnable on February 28, 2005, seeking restoration to possession of the premises. Upon respondent's default in appearance on February 28, 2005, that order to show cause was denied. Later that same day, respondent again moved for post eviction relief by pro se order to show cause. That order to show cause was then made returnable on March 1, 2005.

On March 1, 2005, this Court issued a bench Decision/Order staying reletting of the premises through March 11, 2005 to allow the NYC Department of Social Services (DSS) to pay $1421.50 to petitioner as all arrears and eviction costs incurred by petitioner through March 31, 2005. Upon full and timely payment, petitioner was to restore respondent to possession forthwith.

Two days later, on March 3, 2005, DSS tendered, and petitioner accepted, $1558.50 in [*2]checks at the Butler Houses management office. The next day, petitioner returned the checks to DSS and served and filed a Notice of Appeal and Automatic Stay from the Court's March 1, 2005 Decision/Order.

Also on March 4, 2005, respondent again moved for post eviction relief. That application was denied on March 7, 2005 due to respondent's default in appearance. Later that day, respondent renewed his application for post eviction relief by pro se order to show cause returnable on March 9, 2005.

On March 9, 2005, respondent appeared with newly retained counsel from Legal Services for New York. Petitioner opposed respondent's application on the ground that the Notice of Appeal and Automatic Stay barred further action by this Court. Respondent countered that petitioner's acceptance and retention of DSS checks for all arrears and eviction costs pre dated petitioner's service and filing of its Notice of Appeal and Automatic Stay and thus, respondent's restoration was required as a matter of law. Respondent's motion was then adjourned to March 10, 2005 for decision.

On March 10, 2005, this Court recalled and vacated its March 1, 2005 Decision/Order to permit a hearing to be held on respondent's February 28, 2005 application. Thus, respondent's retention argument was rejected as moot. Further, this Court found that petitioner's inadvertent acceptance of the DSS checks and its prompt return of the same to DSS did not effect a waiver of its rights as a matter of law. This proceeding was then adjourned to March 11, 2005 to permit petitioner's process server to be present.

Prior to commencing this hearing, petitioner handed to the Court, an unfiled notice of motion seeking to reargue the Court's March 10, 2005 ruling that required a traverse hearing to be held. That application was denied by bench Decision/Order dated March 11, 2005, and this matter then proceeded to a traverse hearing.

Petitioner called as its first and only witness, Maria Torres. As Ms. Torres was unable to testify in English, her testimony was translated from Spanish to English by an Official Court Interpreter. Ms. Torres testified that she had been licensed as a process server by the NYC Department of Consumer Affairs since approximately February 2004 and produced a copy of her license which was issued on March 17, 2004. Ms. Torres is self employed and serves process on behalf of NYC Marshal Richard McCoy who was hired by petitioner to effect service of the petition and notice of petition upon respondent in this proceeding. Ms. Torres serves process twice per month, serving approximately 100 petitions and notices of petition on each occasion.

Referring to her affidavit of service (Pet. Exh. 1), Ms. Torres testified that she gained entry into 1348 Webster Avenue on October 18, 2004 and proceeded to serve process on various tenants in that building. At approximately 1:40 p.m., Ms. Torres testified, she knocked on respondent's door whereupon he opened the door halfway. Ms. Torres stated that she asked respondent if he was Roy Williams and, upon his assent, handed him the petition and notice of petition. At some point that evening, Ms. Torres testified, she prepared her affidavit of service at home.

Upon cross examination, Ms. Torres admitted that she "[did not] recall a lot" about effecting service upon respondent. When asked if she had an independent recollection of this [*3]service, Ms. Torres replied, "maybe yes, maybe no."

Ms. Torres was then asked if she had her logbook with her. She testified that she did not and that it was kept at Marshal McCoy's office. She further testified that she was unaware that Department of Consumer Affairs regulations required her to produce her logbook in court. More substantively though, Ms. Torres testified that she does not make entries of service in her logbook simultaneous with service; rather, she makes mass entries in her logbook at Marshal McCoy's office at some point after performing service.

Ms. Torres further testified that she mailed "seven copies of the papers" to respondent, in addition to having effected personal service upon him. Ms. Torres was then referred to her affidavit of service. She testified that she "reads English a little" and proceeded to read aloud, in halting English, excerpts of the affidavit of service relating to personal service and mailing of the petition and notice of petition to respondent. Ms. Torres was able to demonstrate that she understood the substance of the chosen paragraphs. Upon further cross examination however, Ms. Torres admitted that she had never seen the envelopes in which the mailing occurred and that she had never mailed the petition and notice of petition upon respondent as she had both earlier testified and had sworn to in her affidavit of service. In fact, Ms. Torres testified that City Marshal McCoy's office and not herself had performed the alleged mailing. Ms. Torres then conceded that she had in fact submitted a false sworn statement to this Court.

On this record, the Court sustains traverse. The record establishes that Ms. Torres had no independent recollection of the facts of her service of the petition and notice of petition upon respondent. Instead, her testimony was based entirely upon an affidavit of service which she conceded contained a false sworn statement. Specifically, Ms. Torres testified, under oath, that she had mailed seven copies of the petition and notice of petition to respondent, only to then confess that she had never mailed anything to respondent. She then admitted, without explanation, that her sworn affidavit contained a false statement. While RPAPL § 735 clearly does not require a mailing where personal service is effected, Ms. Torres' lack of any explanation for why the mailing occurred, coupled with her false statement to this Court, utterly undermines her credibility and the trustworthiness of her entire testimony, including her alleged personal delivery of the petition and notice of petition to respondent. Moreover, Ms. Torres' failure to produce her logbook, her lack of familiarity with the rules governing her duties as a process server, relative inexperience and nervous demeanor while testifying, all further erode the Court's confidence in her testimony. As the Court has no basis independent of Ms. Torres for finding that petitioner properly effected service upon respondent, the traverse must be sustained. Accordingly, the Court lacked personal jurisdiction over respondent, requiring vacatur of the judgment and warrant as a matter of law. (CPLR § 5015[a][4]; Eight Associates v. Hynes, 102 AD2d 746, 748 [1st Dep't 1984] affirmed 65 NY2d 739 [1985].) Petitioner is therefore directed to restore respondent to possession forthwith.

Independent of the lack of proven service of the petition and notice of petition upon respondent, respondent's restoration is warranted under RPAPL § 749(3). Specifically, that section provides that this court may vacate a warrant of eviction for good cause shown. (See also 102 - 116 Eighth Avenue Associates, L.P. v. Oyola, 299 AD2d 296 [1st Dep't 2002]; Parkchester Apartments Co. v. Scott, 271 AD2d 273, 273 - 274 [1st Dep't 2000].) Thus, "the [*4]Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed." (Brusco v. Braun, 84 NY2d 674, 682 [1994]. See also Oppenheim v. Spike, 107 Misc 2d 55, 56 [App. Term 1st Dep't 1980].) As the Appellate Term, First Department, has held:

[e]ach application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities between the parties....

(Parkchester Apartments Co. v. Heim, 158 Misc 2d 982, 983 - 984, [App. Term, 1st Dep't 1993].)

Heim and its progeny thus reflect a series of common, but by no means exhaustive, factors the Court must weigh in conducting the good cause inquiry: willfulness and circumstances of the payment defaults, (Sorkin, at 26, col. 1, Adult Protective Services and Department of Social Services [DSS] delays); the length of the tenancy, (248 Sherman Avenue Corp. v. Coughlin, NYLJ, July 20, 1999, at 26, col. 3 [App. Term 1st Dep't], 50 year rent controlled tenancy to be saved); rent regulatory status, (AF & G v. Martinez, NYLJ, March 1, 1996, at 25, col. 2 [App. Term 1st Dep't], forfeiture of rent regulated tenancy to be avoided); and time of application, (214 East 178th Street Corp. v. McFadden, NYLJ, February 22, 1991, at 26, col. 5 [App. Term 1st Dep't], delays excusable due to tenant's disability and DSS).

Indeed, the Appellate Term, First Department, has particularly approved of the exercise of the Housing Court's discretion to avoid forfeiture of a rent regulated tenancy and vacate a warrant of eviction where, as here, the tenant can secure assistance from DSS to satisfy the underlying judgment. (See Civetta v. Ackerly, NYLJ, April 6, 1993, at 29, col. 1 [App. Term 1st Dep't], despite numerous orders to show cause and adjournments prior to eviction, forfeiture of long-term rent regulated tenancy was unwarranted where tenant ultimately secured the funds from DSS; Heim, 158 Misc 2d at 982 - 983, despite tenant's default on three stipulations and subsequent eviction, Housing Court judge properly exercised discretion to preserve rent stabilized tenancy where tenant secured assistance from DSS; Vision East Side v. Arrieta, NYLJ, January 24, 1994, at 27, col. 2 [App. Term 1st Dep't], failure to take evidence on tenant's application for assistance from DSS constituted error, and forfeiture of long-term rent regulated tenancy was unwarranted); 14 Realty Corp. v. Mendez, NYLJ, October 9, 1992, at 22, col. 1 [App. Term 1st Dep't], forfeiture of a long-standing rent-controlled tenancy not [*5]warranted where DSS eventually paid the arrears and the tenant's default in payment was not willful.)

The particular facts and circumstances of this proceeding weigh in favor of respondent's restoration to possession. The record reveals that Mr. Williams is 51 years old and has resided in the subject premises for over 22 years. He suffers from tuberculosis, arthritis and hepatitis and receives ongoing methadone treatment on an outpatient basis while attending daily counseling sessions. On August 27, 2001, Mr. Williams' partner and co tenant, Harriet McKay, died, leaving him to both care for himself and assume all of the household's administrative responsibilities which were previously handled by Ms. McKay.

In October 2004, respondent's public assistance case was closed. Respondent testified that he sought to reopen his case in November 2004, albeit unsuccessfully. He further testified that on February 11, 2005, he informed his DSS caseworker that he had been evicted. According to respondent, he then had a series of follow up appointments with DSS, including one on February 28, 2005 which required him to be home despite his being out of possession. Mr. Williams testified that to comply with this requirement, he waited at Butler Houses on February 28, 2005 to meet DSS representatives and consequently defaulted in appearance before this Court.

Moreover, throughout these proceedings, the Court's own observations of respondent raise serious questions as to his ability to comprehend the nature of this proceeding or make decisions in his own best interest. Specifically, respondent had a glazed expression on his face and exhibited a disconnected affect, testifying almost inaudibly and, at times, unresponsively.^[FN1] Under these unique and compelling circumstances, the Court cannot fairly conclude that respondent's payment default was willful. (See Civetta v. Ackerly, at 29, col.1; Sorkin v. Salazar, at 26, col. 1, and NYCHA Edenwald Houses v. Roque, 1 Misc 2d 833, 836 [Civ. Ct. Bronx Co. 2003].)

Following his eviction, respondent sought post eviction relief on February 28, 2005, which was denied upon default as respondent was apparently waiting at Butler Houses to meet representatives from DSS. Respondent then renewed his application and, on March 1, 2005, through extensive efforts by Barbara Richardson the Housing Court DSS liaison obtained a DSS approval for $1558.50 which exceeded all arrears and eviction fees and costs due through March 31, 2005. (Resp. Exh. A.) Two days later, on March 3, 2005, DSS delivered $1558.50 in checks to petitioner which petitioner returned to DSS the next day. In light of these facts, the Court exercises it discretion to restore respondent to possession. (See Manning v. Hernandez, 7A Administrator, at 29, col. 2, restoration of tenant upon providing "commitments from governmental and private agencies to cover the entire balance due" held proper exercise of discretion; Sherman/Nagle Corp. v. Garcia, NYLJ, March 17, 2003, at 21, col. 2 [App. Term 1st Dep't], affirming restoration conditioned upon payment of all [*6]outstanding rent arrears; and Sorkin v. Salazar, at 26, col. 1, tenant restored upon payment of the full amount of rent due.)

Additional factors weighing in favor of respondent's restoration to possession are the length and nature of his occupancy in the subject premises. Respondent has resided in his federally subsidized public housing authority apartment for over 22 years and enjoys the benefit of an affordable rent without the benefit of which he faces certain homelessness. Notably, the Appellate Term, First Department, has consistently permitted late satisfaction of a judgment to prevent forfeiture of a long term, rent regulated tenancy as here. Thus, in Vision East Side, at 27, col. 2, where the tenant "ultimately secured funds sufficient to satisfy the judgment," the Court affirmed restoration to "avoid a forfeiture of [a] long term rent stabilized tenancy." Further, in Civetta, at 29, col. 1, the Court permitted the tenant's tender of over $8,000.00 while his appeal was pending to satisfy the judgment and "reinstate the stabilized tenancy so as to preserve the tenant's occupancy."

Indeed, the Court has even substituted its discretion for that of the Housing Court to permit late satisfaction of a judgment:

[w]hile there was delay in the resolution of this matter, we think it appropriate to exercise our discretion and grant tenant the requested relief so as to avoid a forfeiture of the rent stabilized tenancy.

Further still, this court is required to balance the possible harm engendered or benefit derived by the exercise of its discretion. (NYCHA v. Torres, 81 AD2d 681, 683 [1st Dep't 1978].) Vacatur of the warrant of eviction and restoration of respondent to possession would enable petitioner a public housing authority to be made whole as to all rental arrears and costs incurred in this proceeding. Thus, any prejudice to petitioner is minimal at best. In sharp contrast, absent restoration, respondent faces the extraordinary and grave harm of being left homelessness, compounded exponentially by his serious illnesses. (See Linus Holding Corp. v. Harrison, NYLJ, November 30, 2001 at 18, col. 1 [App. Term 1st Dep't], harmful effects of eviction relevant to post eviction restoration analysis.). Therefore, the equities weigh decisively in favor of respondent's restoration to possession.

Petitioner's argument that this Court should consider evidence of alleged undesirable conduct by respondent is unpersuasive. In 14 Realty Corp. v. Mendez, at 22, col. 1, the Appellate Term, First Department, held that allegations of suspected drug use were "not germane to the central issues raised in th[at] nonpayment proceeding." The Court then [*7]proceeded to exercise its discretion to restore the tenant to possession to avoid forfeiture of the respondent's long term regulated tenancy where, as here, the "tenant ultimately secured funds from DSS to satisfy the judgment." (Id.) No less a result must pertain here.

Indeed, for this Court to entertain allegations of undesirable conduct would effectively be to allow petitioner to convert this nonpayment proceeding into a holdover proceeding, requiring respondent to defend, without notice, against claims entirely unrelated to petitioner's sole cause of action for nonpayment of rent. Fundamental principles of due process cannot countenance such a perverse result. (See Escalera v. New York City Housing Authority, 425 F2d 853, 863 [2nd Cir. 1970], cert den, 400 US 853 [1970], requiring the tenant to be "adequately informed of the nature of the evidence against him and accorded an adequate opportunity to rebut the evidence." See also Boddie v. Connecticut, 401 US 371, 378 [1971], holding that due process requires an "opportunity... granted at a meaningful time in and in a meaningful manner for a hearing appropriate to the nature of the case." Citations omitted.)

Even worse, this Court would violate federal law were it to consider evidence of alleged undesirable conduct by respondent. Specifically, termination of a tenancy upon grounds other than nonpayment of rent is governed exclusively by the federal consent decrees in Escalera v. NYCHA, 67 Civ. 4307 [SDNY 1971], Tyson v. NYCHA, 73 Civ. 859 [SDNY1976] and Randolph v. NYCHA, 74 Civ. 1856 [SDNY 1976]. (See also NYCHA Management Manual, Ch. VII, § III(A).) Thus, petitioner may only terminate a tenancy for undesirable conduct at a "trial type administrative hearing held by an impartial hearing officer on specific written charges of which the tenant must have had prior notification." (Id.) Petitioner may therefore not evade compliance with federal law and its own regulations by seeking to bootstrap unrelated undesirability claims to this nonpayment proceeding. Indeed, for this Court to consider evidence of any alleged undesirable conduct by respondent would be for it to exceed its jurisdiction in direct violation of federal law.

Thus, under the particular facts presented, this Court exercises its discretion to avoid forfeiture of respondent's federally subsidized tenancy. Petitioner is directed to accept and/or recover from DSS, the $1558.50 in checks delivered by DSS on March 3, 2005. Petitioner is further directed to restore respondent to possession of the premises forthwith. This matter is also referred to APS so that it may evaluate respondent's eligibility for services to assure against future payment defaults. This constitutes the Decision/Order of this Court, copies of which are being handed to the parties' respective counsel today on the record.

Dated:March 14, 2005

Bronx, New York

______________________________________

Hon. Jaya K. Madhavan, J.H.C.

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