The underlying nonpayment proceeding was commenced on or about June 2007 by Revlyn Apartments, LLC ("Petitioner"), against the tenant of record, William Heines ("Respondent") seeking to recover possession of Apartment 4B at 303 99th Street, Brooklyn, New York, 11209 ("Subject Premises"). On or about July 9, 2007, Respondent filed an answer, and the first court date was scheduled for July 20, 2007. In his answer, the only defense raised by Respondent was that he had already paid a portion of the rent he had been sued for, and that he disputed the amount raised in the petition. On July 20, 1997 the proceeding was settled pursuant to a stipulation of settlement.

In the stipulation, Respondent consented to the entry of a judgment in the amount of $1150.46 for all rent due through July 2007, and the forthwith issuance of the warrant of eviction. The stipulation provided, inter alia, that execution of the warrant would be stayed provided Respondent $287.62 per month towards arrears by the 15th of each month, commencing August 15, 2007 through November 15, 2007, in addition to paying current monthly rent as it became due. The lease agreement between the parties provides for a monthly rent of $775.00. The stipulation further provided that upon default, the landlord could execute upon the warrant of eviction upon service of a Marshall's notice.

Respondent was the only party named and served in this proceeding, and neither party raised the issue of any other occupants at the time the matter was settled. However, in the course of the allocution of the stipulation the Respondent did make reference to his wife, and even a rent payment that was made by his wife that he may or may not be able to find a receipt for. Language was added to the stipulation that provided that respondent would be credited for the payment upon producing a receipt but again the stipulation made no reference to Annette Heines or even a payment made by Annette Heines.

On or about August 16, 2007, Respondent submitted an application for an order to show cause. In the affidavit in support of the Order to Show Cause application, Respondent acknowledged that he had not complied with the stipulation. Respondent further stated "I'm [*2]having difficulty with finding a job. I'm also trying to clear up problems with p.a. ... I can pay $200 on the 21st and the balance as soon as possible." The Court declined to sign the Order to Show Cause, noting that Respondent was not in Court at the time of the application, and that the moving papers failed to establish either an excusable default or a meritorious defense, but simply claimed an inability to pay the amount due. The denial was without prejudice to renewal upon proof of ability to pay. Once again no mention or reference was made in the moving papers to any other occupant or any other defense.

On September 5, 2007, Respondent and Annette Heines, whom Respondent maintains is his wife, were evicted from the subject premises. On said date they jointly moved for a post-eviction order to show cause. Respondent admitted that he had not made the payments due under the stipulation, but alleged that they were illegally locked out because "never served eviction (or) certified letter Marchells came & changed locks this morning and we are here (sic)." Respondent also stated that he now had a job, and third party help for rent, and that he wanted to go back into his apartment.

The allegation that the Marshall did not serve or properly serve a notice of eviction does not support Respondent's claim that he was wrongfully evicted, and dos not afford a basis to grant Respondent's motion to be restored to possession. Presidential Management Co. v. Farley, 78 Misc 2d 610 (App. Term, 2nd & 11th Jud Dists., 1974); 601 Realty Co. v. Osman, N.Y.L.J., Apr. 6, 1989 (App. Term, 2nd & 11th Jud Dists); 100 Queens Boulevard Associates LLC v. G&C Coffe Shop, 15 Misc 3d 141 (A) (App. Term, 2nd & 11th Jud Dists, 2007).

The post eviction order to show cause was signed by the Court and initially returnable on September 6, 2007. On said date Respondent and Annette Heines alleged that Petitioner's principal knew his wife, who had lived with him since the inception of the tenancy and that public assistance had sent several rent checks to Petitioner in her name, which had been accepted and cashed by Petitioner..

The Court set the matter down for a hearing on the issue of whether the landlord's failure to name and serve Annette Heines made the underlying eviction illegal.

THE HEARING

At the hearing both Respondent and his wife testified. They testified that when

Respondent originally leased the apartment, Annette Heines was living elsewhere, down south, but that he rented the apartment for them, and that she joined him to live there permanently within days after he moved. Annette Heines testified that she was the wife of William Heines, and that they had married in 1990 or 1991. There was no marriage certificate offered into evidence.

Mrs. Heines further testified hat she knew the landlord "Alan" and the super "Jim". She testified that she had a phone discussion with Alan, a principal of the Petitioner in or around January of 2007, when she called him from a D.S.S. office, and asked him to fax proof of ownership to said office in connection with her application to public assistance for rental arrears, which she testified he did. She also stated that she saw the Super on a regular basis, and that they had various discussions at the building during her occupancy.

Mrs. Heines did offered into evidence her New York State Identification Card and her [*3]New York State Benefit Identification Card . Both these documents listed her as Annette Heines. The New York State Identification Card, which was issued in June 2002 and valid through October 2010, does not list the subject premises as her address, but states her address as 7032 4th Avenue, Brooklyn , New York. Mrs. Heines also offered into evidence a print out from D.S.S. showing checks were issued and cashed for case number 009138820G, from May 17, 2007 through August 16, 2007.This document was dated September 6, 2007. The printout did not provide the name of the beneficiary or identify by whom the checks were cashed.

Mrs. Heines also offered into evidence a Document Request Form from New

York City Human Resources which had her name, and the same case number as the DSS printout.

Petitioner at the hearing offered into evidence the original lease and lease application for the subject premises. The original lease for the premises only named William Heines as a tenant. A rider to the lease further specifically provided that the apartment would only be occupied by one adult. Additionally, the lease application filled out by Mr. Heines stated that he would be living in the apartment alone and that he had no wife or children.

Mr. Heines explained in testimony that at the time of the application and renting of the apartment he had been separated from his wife. He further alleged that this separation lasted for no more than one month.

Petitioner's principal, Alan Poland and the Super of the premises both testified at the hearing as well. The Super, who lives in the building, testified that he had seen Annette Heines at the building once every three weeks. He testified that she did not live there, and that Mr. Heines had identified her as his girlfriend.

Mr. Poland testified that he had seen Annette Heines on occasion at the subject building but that he never had a conversation with her. He testified that he had discussions with Mr. Heines regarding Annette Heines' occupancy, because he had received complaints from other tenants due to allegedly loud fighting between Respondent and Annette Heines. He stated that Respondent never identified Annette Heines as his wife, and in fact promised to" get rid of her" and that she would not continue to be a problem at the apartment.

It is well settled that in the Second Department where individuals are legally evicted, the standard for reinstatement of the tenancy is governed by CPLR 5015, and that good cause alone will not be sufficient to reinstate the tenancy. In the case at bar there has been no showing that would warrant granting Respondent's motion under CPLR 5015.

Moreover, to the extent Courts in the Second Department have relied on good cause under RPAPL 749(3), this is limited to where good cause existed prior to the execution of the warrant. See e.g. Woodside Gardens Associates v. Lombardo, N.Y.L.J., 2/3/92 (App. Term, 2nd & 11th); 2785 Ocean Parkway Assoc. v. Stern; N.Y.L.J. p.31, col.4 (Civ. Ct., Kings Co., 1995); Davern Realty Corporation v. Vaughn, 161 Misc 2d 550 (App. Term, 2nd & 11th , 1994).

In the case at bar there is no good cause shown by Respondent. His default was neither de minimis, nor quickly cured. Respondent and Annette Heines testified that she was aware of the proceeding and the terms of the stipulation. Annette Heines establishes no independent right to possession. Respondent himself has only been in occupancy for two years. Additionally [*4]Respondent did not establish that Annette Heines was living at the premises full time, nor that Petitioner knew or should have known her name, her relationship to respondent, or that she had moved into the premises.

CPLR 1001(a) provides that necessary parties are "Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants."

Traditionally, the wife of a tenant has not been considered a necessary party in a summary proceeding. Hornbook law provides that the wife of a tenant, as well as his children and guests can all be removed under a warrant of dispossession without being made a party to the proceeding. 2 Rasch, New York Landlord and Tenant- Summary Proceedings  38:32, at 615 [3rd ed.].

However, case law has recognized that said notion is outdated, and more recently has limited the traditional hornbook doctrine to situations where the family member or spouse has not asserted independent possessory rights. Stanford Realty Assoc. v. Rollins, 161 Misc 2d 754 (Civ. Ct., NY Co., 1994). In the case at bar there is nothing to suggest that Annette Heines has independent possessory rights. While the Court found credible the allegation that Annette Heines and Respondent are legally married, the record on whether she lived in the premises with Mr. Heines is far less conclusive. The only document that Annette Heines offered, which lists the premises as her residence and did not post date the eviction, was a letter from her legal aid attorney for a pending criminal matter which was dated July 18, 2007.

Moreover, while the underlying proceeding does relate to a rent stabilized apartment, the only individual with an obligation to pay rent was Respondent, and unlike a holdover proceeding the undertenant has no claim to succession or tenancy which is applicable in this matter.

Mr. Poland credibly testified that on the few DSS checks alleged to have been paid on behalf of Annette Heines, only the last name Heines was listed. Generally a rent regulated tenancy may not be created by waiver or estoppel. Jefpaul Garage Corp. V. Presbyterian Hospital, 61 NY2d 442 (Ct.of Appeals, 1984) ; Gregory v. Colonial DPC Corp. III, 234 AD2d 419 (2nd Dept., 1996 ); 546 West 156th Street HDFC v. Smalls, 839 NYS2d 62 {43 AD3d 7} (1st Dept., 2007).

Moreover, both Respondent and Annette Heines testified that she was aware of the proceeding, that she chose not to appear on the court date, and that the terms of the stipulation were discussed with her by Mr. Heines.

As of the date of the hearing, Respondent agreed there is $2700.00 due in rent arrears. Respondent and Annette Heines allege that if given a breakdown they would receive assistance for payment of same from DSS and have submitted the aforementioned Document Request Form establishing such an application is pending.

However, the Court concludes that there was nothing illegal about the underlying eviction, and that good cause does not exist under these circumstances to reinstate the tenancy. Based on the foregoing, Respondent's motion is denied. Petitioner is stayed from re-letting the subject premises through and including September 14, 2007 and is directed to provide Respondent and Annette Heines with access from 10 am to 4pm on each day through September 14, 2007 for the purpose of allowing them to remove their belongings from the premises. [*5]

This constitutes the decision and order of the Court.

______________________

Hon. Sabrina B. Kraus

Judge of the Housing Court

Dated: Brooklyn, New York

September 10, 2007

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