Morales v Schwimmer (2011 NY Slip Op 50701(U))

Morales v Schwimmer

2011 NY Slip Op 50701(U) [31 Misc 3d 1217(A)]

Decided on April 22, 2011

Supreme Court, Kings County

Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through July 22, 2011; it will not be published in the printed Official Reports.

Plaintiff AWILDA MORALES moves (mot. seq. # 2), by order to show cause, dated January 26, 2010, for an order: (1) compelling defendants ELIEZER SCHWIMMER and TAYLOR WYTHE LLC to correct certain conditions in her apartment; (2) imposing the accrual of daily civil penalties for the aforementioned conditions since March 1, 2010; and, (3) requiring defendants to replace heating radiators in her apartment and to pay her outstanding gas bill, including those charges that accrued while these radiators had been removed from her apartment. Plaintiff also moves (mot. seq. # 3), by motion, dated July 29, 2010, for an order: (1) granting plaintiff a default judgment or summary judgment against defendants because of defendants' failure in the instant action to interpose an answer; or, (2) in the alternative, requiring defendants to respond to plaintiff's first notice to defendants for production, inspection and copying of documents, dated March 30, 2010; and, (3) granting the relief requested in the aforementioned mot. seq. # 2. Defendants, in opposition, cross-move (mot, seq. # 4), on September 29, 2010, for an order, pursuant to CPLR § 3215(c), dismissing plaintiff's verified complaint because plaintiff failed to seek a judgment against defendants within one year after defendants' default in interposing an answer.

Plaintiff MORALES also named 1318 HALSEY LLC as a defendant, although she did not serve 1318 HALSEY LLC with process because she was advised that it had no interest in this litigation. (June 2, 2009 affirmation of service by Vince G. Gathing, Esq.). Since the parties are in agreement that only ELIEZER SCHWIMMER and TAYLOR WYTHE LLC are the proper defendants, the Court is amending the caption of the summons and complaint, sua sponte, in accordance with its authority, pursuant to CPLR § 2001, to accurately identify relevant parties in an action. (See Boyd v Town of North Elba, 28 AD3d 929, 930 n [3d Dept 2006], lv dismissed 7 NY3d 783 [2006]).

Background

The instant action arises from a dispute involving an attempted surrender of a

residential lease for a rent-stabilized apartment. The parties have assumed, and the court accepts that the lease at issue is for a rent-stabilized apartment. A copy of the lease is not in the record before the court. Plaintiff MORALES entered into a two-year lease (the lease), from April 1, 2007 to March 31, 2009, for a three-bedroom apartment, # 1R (the apartment), in a six-unit class "A" multiple dwelling at 1319 Halsey Street, Brooklyn, New York (the building). A "multiple dwelling" is "a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other." (Multiple Dwelling Law [MDL]

§ 4 [7]). A class "A" building is "a multiple dwelling that is occupied for permanent residence purposes." (MDL § 4 [8] [a]). Similar definitions are set forth in the New York City Housing Maintenance Code (HMC), § § 27-2004 (a) (7) and (8) of the Administrative Code of the City of New York. The building, in April 2008, was acquired by defendant TAYLOR WYTHE LLC and managed by defendant ELIEZER SCHWIMMER. (¶ 3 of SCHWIMMER's September 25, 2009-affidavit in opposition to order to show cause, which is part of the papers for mot. seq. # 1, for consolidation of a Housing Court holdover proceeding with the instant action). Subsequent [*2]to the building's acquisition, defendants bought out four of the six tenants then living in the building. ( ¶ 3 of SCHWIMMER's September 25, 2009-affidavit). Defendant SCHWIMMER, in the summer of 2008, after having several

conversations with plaintiff's daughter, nonparty CATHY MORALES, was advised that

plaintiff would accept $35,000 to surrender her lease and move out of her apartment. ( ¶ 4 of SCHWIMMER's September 25, 2009-affidavit). On October 27, 2008, defendant SCHWIMMER and plaintiff MORALES met in plaintiff's apartment. Defendant SCHWIMMER spoke English, but not Spanish, while plaintiff spoke Spanish, but not English. Present at the meeting was another of plaintiff's daughters, nonparty SABRINA MORALES, who acted as interpreter for them. (¶'s 1 and 2 of SABINA MORALES' February 2, 2009-affidavit). Also, SABRINA MORALES is listed as a tenant on the apartment lease, but does not live in the apartment. (¶ 1 of SABINA MORALES' February 2, 2009-affidavit). As a result of the October 27, 2008 meeting, defendant SCHWIMMER paid plaintiff MORALES $3,000 in cash, with a promise to pay plaintiff the $32,000 balance if and when she moved out of theapartment on October 31, 2008.The parties' understanding is memorialized in the October 27, 2009 "Surrender Agreement" (the lease-surrender agreement). In the lease-surrender agreement "EMS" stands for "ELIEZER MENDEL SCHWIMMER." Although SCHWIMMER's first name is spelled in the legal papers as ELIEZER," he repeatedly spelled it as "ELEIZER" when he wrote it out by hand in the lease-surrender agreement. The lease-surrender agreement, provides, in substantive part, the following with original capitalization and punctuation reproduced:

It is undisputed that: defendants have not paid plaintiff the $32,000 balance; plaintiff MORALES has not surrendered her apartment to defendants; and, plaintiff MORALES has retained the $3,000 she received on October 27, 2008 from defendant SCHWIMMER in connection with her execution of the lease-surrender agreement.

When the lease-surrender agreement was executed, plaintiff's apartment was heated by the building-wide central heating system, with heat supplied by hot-water radiators. With the onset of the Fall 2008 heating season and after plaintiff failed to vacate her apartment on October 31, 2008, defendants removed the radiators, together with steam pipes, from plaintiff's apartment. (¶ 16 of SCHWIMMER's September 25, 2009-affidavit). The radiators and related steam pipes were removed from the kitchen, the bathroom and the three bedrooms. (¶'s 3 and 5-10 of Joe Pacheco's January 21, 2010-affidavit, describing the state of plaintiff's apartment on August 5, 2009). Whether a radiator and related steam pipes were also removed from the living room is not clear from Mr. Pacheco's affidavit. Defendants, in lieu of radiators, installed two gas-fueled space heaters in plaintiff's apartment. (¶ 16 of SCHWIMMER's September 25, 2009-affidavit). The manufacturer described each heater as a "Gas Direct Vent Wall Furnace." One of the heaters was installed in a bedroom and the other in the living room. (¶ 10 of Joe Pacheco's January 21, 2010-affidavit). Both heaters were connected to plaintiff's gas meter, and the cost for gas was added to plaintiff's National Grid account, which since that time reflected charges for both heat and cooking gas. The total of her outstanding gas charges was $1,495.88 by January 7, 2010. National Grid, at that time, threatened plaintiff with a shut-off of her gas service and removal of her gas meter. ("Final Disconnection Notice" from National Grid, dated January 7, 2010). This Court, in its January 26, 2010 order to show cause [mot. seq. # 2] stayed National Grid from shutting off gas service to plaintiff MORALES pending determination of the January 26, 2010 order to show cause. This stay is continued, as more fully detailed in the "Conclusion" section of this Decision and Order.

Defendants, in December 2008, commenced a summary holdover proceeding

against plaintiff and her daughter SABRINA MORALES, who was listed in the apartment lease as a tenant, in the Housing Part of Civil Court, Kings County. (TAYLOR WYTHE LLC and ELIEZER SCHWIMMER v AWILDA MORALES, SABRINA MORALES, and JOHN DOES 1-100, Kings County L & T Index No. 08K108557). The petition is part of the Court file for mot. seq. # 1, in which this Court ordered the consolidation of the Civil Court holdover proceeding with the instant action. Defendants alleged in the holdover petition that the term of the apartment lease expired on October 31, 2008, in accordance with the lease-surrender agreement and that plaintiff MORALES owed defendants $3,275.75 [$2,249.86 for unpaid rent for the period ending October 1, 2008; $500.45 per month for use and occupancy for November and December 2008; and, late fees of $50.04]. Judge Inez Hoyos, in her March 10, 2009 Kings County Housing Court decision and order, denied defendants' motion for summary judgment. Further, Judge Hoyos held that Housing Court lacked jurisdiction to adjudicate plaintiff's defense that the lease-surrender agreement was unconscionable without prejudice to plaintiff MORALES asserting this [*4]position in a court of competent jurisdiction.

Then, plaintiff MORALES, in May 2009, commenced the instant action against defendants, seeking to invalidate the lease-surrender agreement on a variety of grounds, including unconscionability, unclean hands, unenforceability, duress and lack of the meeting of the minds. Additionally, plaintiff asserts various theories of liability, including retaliation, harassment and breach of the warranty of habitability, based upon the existence of certain apartment-related and building-wide violations, including "insufficient heat because [defendants] illegally removed all the radiators." ( ¶ 74 [d] of verified complaint). Moreover, plaintiff MORALES seeks an order directing defendants to correct these violations. (¶'s 81 and 82 of verified complaint).

The summons and verified complaint were properly served on defendants in May 2008. (¶ 2 of Joe Pacheco's June 2, 2009-affidavit of service and ¶ 3 of Vance G. Gathing, Esq.'s June 2, 2009-affidavit of service). However, to date, defendants failed to submit an answer or moved to dismiss plaintiff's verified complaint, pursuant to CPLR Rule 3211.

Despite defendants' failure to answer or move to dismiss, both plaintiff and defendants actively participated in this action, as evidenced by their multiple court appearances, the issuance of five court orders, and the entry of four stipulations. In the course of this action, this Court or another Kings County Supreme Court Justice has: (1) stayed plaintiff's eviction from the apartment based upon the lease-surrender agreement, by an October 30, 2009 order; (2) consolidated the holdover proceeding with this action, in another October 30, 2009 order; (3) established a discovery schedule in accordance with the November 25, 2009 preliminary conference order; (4) stayed National Grid from disconnecting gas service to plaintiff's apartment, in the January 26, 2010 order to show cause; and, (5) established, in an April 24, 2010 compliance conference order, a September 3, 2010-deadline by which all discovery had to be completed and a note of issue filed. Additionally, in the course of this action, the parties stipulated: on February 24, 2010, that "the defendants will act to clear the remaining building violations; on August 9, 2010 to adjourn the note of issue filing date beyond October 1, 2010; and, on August 3, 2009 and July 29, 2010 to extend the return date of plaintiff's motions.

It further appears, based upon the Court's review of the New York City Department of Housing Preservation and Development (DHPD) and the New York City Department of Buildings (DOB) online databases, that as of March 8, 2011, many if not all, of the apartment-related violations, as noted by plaintiff in her motion papers, have been cured, although it appears that seven new apartment-related violations have been cited. These violations, as of March 8, 2011, are two class "A" violations for inadequate painting and five class "B" violations for the presence of mice, roaches, and bedbugs, as well as for an inoperable smoke detector. Class "A" violations are considered nonhazardous, and owners have ninety days to correct the condition. (HMC § 27-2115 [c] [1]). Class "B" violations are hazardous, and owners have thirty days to make necessary corrections and repairs. (HMC § 27-2115 [c] [2]). Moreover, defendants offered plaintiff a $100 monthly credit against her rent for the period of October 1, 2009 through April 30, 2010 to resolve the issue of her outstanding gas bill. (¶'s 23 and 24 of SCHWIMMER's April 20, 2010-affidavit.). However, defendants have not replaced nor offered to replace plaintiff's missing radiators. The parties, despite settlement negotiations, have not been able to agree on a resolution of any portion of their dispute and the instant motions and cross-motion are before the Court.

[*5]Discussion

The Court, before turning to the substantive contentions of the parties, must

address defendants' cross-motion to dismiss, based upon plaintiff's failure to seek a judgment against them within one year after their default. CPLR § 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." Thus, "[w]hen a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned." (Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 635 [2d Dept 2005]).

It is undisputed that: defendants defaulted in answering after being served with process in the instant action on May 27, 2009 [Joe Pacheco's June 2, 2009-affidavit of service]; defendants failed to answer or move to dismiss the verified complaint by June 26, 2009; and, plaintiff moved for entry of a default judgment against defendants on August 3, 2010 [Vance G. Gathing, Esq.'s August 4, 2010-affidavit of service], or more than one year after defendants' default. While plaintiff did not move for entry of a judgment within one year after defendants' default, the record reveals that her efforts to prosecute this action included: (1) multiple court appearances; (2) the prosecution of motions to consolidate the holdover proceeding with the instant action, as well as to compel defendants to cure the DHPD and DOB violations; (3) service and response to discovery requests; and, (4) entry into stipulations. Thus, plaintiff has not abandoned the instant action and it should not be dismissed. (See Icon Equipment Distributors, Inc. v Gordon Environmental & Mechanical Corp., 272 AD2d 579 [2d Dept 2000], lv dismissed 96 NY2d 769 [2001]; Patterson v Patterson, 220 AD2d 731, 732 [2d Dept 1995]).

Further, plaintiff, in her verified complaint sufficiently demonstrates the meritorious nature of at least some of her causes of action. (See Ingenito v Grumman Corp., 192 AD2d 509, 511 [2d Dept 1993]). Plaintiff's May 18, 2009 verification is accompanied by an affidavit from Joe Pacheco, who states that: he is fluent in both English and Spanish; on May 28, 2009, he translated the verification to plaintiff in Spanish and read it her; and, plaintiff related to him that she fully understood and agreed with its contents. However, Mr. Pacheco does not allege that he is an interpreter and has not stated his qualifications as an interpreter. The Court may reject plaintiff's verification on this ground. (Baginski v Queen Grand Realty, LLC, 21 Misc 3d 1110 [A] [ Sup Ct, Queens County 2008], mod on other grounds, 68 AD3d 905 [2d Dept 2009]). However, the Court exercises its authority to disregard this irregularity in the absence of substantial prejudice to defendants. (CPLR § 2001).

Lastly, defendants have made no showing that they were prejudiced by any purported delay in the prosecution of this action. (See Byk-Chemie GmbH v Efka Chemicals, B.V., 161 AD2d 196, 197 [1d Dept 1990]). Although the excuse proffered for plaintiff's delay, "law office failure as a new practitioner" [¶ 26 of Vance G. Gathing, Esq.'s October 12, 2010 affirmation in opposition to defendants' cross-motion] is not compelling, the extent of plaintiff's counsel's inadvertence must be weighed against the merits of plaintiff's claim and the lack of prejudice to defendants. (See LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1d Dept 1999]). Accordingly, the Court, in the exercise of its discretion, denies defendants' cross-motion to dismiss, pursuant to CPLR [*6]

§ 3215 (c).

Next, the Court holds that a default judgment against defendants, upon their

default in answering the verified complaint, is not warranted. Plaintiff did not timely move for such a judgment within the requisite one-year period. (Gleason v Gottlieb, 35 AD3d 355, 357 [2d Dept 2006]). By parity of reasoning, plaintiff's request for a default judgment on her motion to compel (mot. seq. # 2), based upon defendants' failure to answer plaintiff's verified complaint, is also denied. "Where, as here, both parties are derelicts, one in answering the complaint, the other in taking a default, the interests of justice would best be served by putting them back to a point where neither was in default." (Brokaw v Cohen, 117 Misc 2d 31, 33 [Sup Ct, New York County 1982]).

Accordingly, and in response to defendants' request to establish a date by which they may interpose an answer, defendants shall answer the complaint within thirty days of service of a copy of this Decision and Order with notice of entry. Should defendants fail to answer within this time frame, plaintiff may move for a default judgment. (See Brokaw at 34). If defendants timely answer, a compliance conference will be held as ordered in the "Conclusion" of this Decision and Order. Plaintiff's alternative request for summary judgment is premature, because it was made before defendants answered. The Court of Appeals, in City of Rochester v Chiarella (65 NY2d 92, 101 [1985]), held that "[a] motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to."

Turning to substantive issues, the Court will first address the branch of plaintiff

MORALES' order to show cause for the reinstallation of the radiators in her apartment and an order directing defendants to pay her outstanding gas charges. The operation and upkeep of multiple dwellings, such as 1318 Halsey Street, are governed by the MDL and the HMC [Title 27, Chapter 2 of the Administrative Code of the City of New York]. MDL § 79 (1) codifies the general rule that "every multiple dwelling shall be provided with heat or the equipment or facilities therefore." "It is clear that the law [MDL § 79 (1)] requires that each rental unit . . . is required to have heat . . . supplied by a system as described above." (Ba v Ocolo, 16 Misc 3d 1104 [A] [Civ Ct, Kings County 2007]). "The mere fact that the radiator in the premises is disconnected is not sufficient to relieve the landlord of his obligation to provide heat." (Adams v Green, 114 Misc 2d 633, 634 [Civ Ct, Kings County 1982]). HMC § 27-2028, "Central heat or electric or gas heating system; when required," specifies that:

In the instant action, neither of the two exceptions permitting the use of an apartment-based heating system in lieu of a central heating system is applicable. There is no evidence that the [*7]gas-fueled heating system was in use in plaintiff's apartment on July 14, 1967 nor is there any proof that defendants' removal of the radiators from plaintiff's apartment was "approved by the appropriate city agencies having jurisdiction and [that the gas-fueled space heaters in plaintiff's apartment were] installed in a . . . building erected, converted, substantially rehabilitated or completely vacated after July [14, 1967]," pursuant to HMC § 27-2028. (See Perovic v Dijan, 2002 NY Slip Op 50659 [U] [App Term, 2d Dept, 2d & 11th Jud Dists 2002]). Thus, defendants' removal of the radiators from plaintiff's apartment and their replacement with gas-fueled heaters were improper as a matter of law. (See 945 St. Nicholas Tenants League v Agarwal, NYLJ, Jan. 16, 1991, at 22, col 6 [Civ Ct, New York County 1991]).

The Court may in an appropriate situation issue an order to cure building conditions that violate the MDL and the HMC against a building owner, such as defendant TAYLOR WYTHE LLC. "The court can, and regularly does, issue orders directing owners,' as that term is defined (Administrative Code § 27-2004 [45]; Multiple Dwelling Law § 4 [44]), to remove violations or conditions constituting violations' at the premises." (Amsterdam v Goldstick, 136 Misc 2d 831, 832 [Civ Ct, New York County 1987]). Therefore, the Court directs defendant TAYLOR WYTHE LLC, within sixty (60) days of service of a copy of this Decision and Order with notice of entry, to reinstall the radiators in plaintiff MORALES's apartment and connect such radiators to the building's central heating system, as more fully set forth in the "Conclusion" section of this Decision and Order. In 945 St. Nicholas Tenants League v Agarwal, supra, the Court imposed a thirty-day cure period where radiators had been removed from apartments and replaced with electric heaters. Contrary to plaintiff's contention, in ¶ 9 of her January 21, 2010-affidavit in support of an order to correct, it does not appear from her submissions that the space heaters in her apartment "were cited as illegal hazardous violations by the City of New York inspectors." However, the absence of such violations, does not preclude this Court from directing defendants to comply with HMC § 27-2028, which generally mandates the use of a central-heating system in multiple dwellings.

Next, the Court considers plaintiff's request for an order directing defendants to

pay her entire gas bill. It is undisputed that plaintiff's gas bill includes the cost of cooking gas which has always been her responsibility. Plaintiff has presented no evidence to the Court as to how to apportion her total gas bill (totaling $1,495.88 as of January 7, 2010) between her share of the bill for cooking gas and the space heaters' gas consumption, which should be defendants' expense. Also, there is no substance to defendants' offer to reduce plaintiff's rent by $100 per month during the cold weather season to reflect the space heaters' gas consumption. Without any basis for the apportionment of the charges between gas used by plaintiff for cooking and gas used by the space heaters, the Court denies this branch of plaintiff's motion without prejudice to resubmit additional proof no later than ninety (90) days after entry of this Decision and Order.

Last, the Court turns to the branch of plaintiff's motion for an order compelling defendants to correct "each building hazard and code violation" cited by DHPD and DOB, as well as to impose civil penalties therefor. The Court, as a threshold matter, construes plaintiff's request to apply exclusively to the violations pertaining to her apartment. Plaintiff has no standing to compel removal of violations in apartments which she does not occupy. More important, the Court's review of DHPD and DOB online databases indicates that, as of March 8, 2011, defendants closed many, if not all, of the violations as identified in plaintiff's papers pertaining to [*8]her apartment. Although it appears that there are seven new open violations for plaintiff's apartment as of March 8, 2011, there is some evidence in the record that plaintiff may have prevented defendants' agents from correcting conditions in her apartment. (¶'s 4 and 5 of Jesus Sanchez Silva's February 19, 2010 affidavit, ¶'s 3 and 4 of Jesus Sanchez Silva's November 11, 2010 reply affidavit and ¶'s 3 and 5 of Lead Consultant Joel Deutsch's February 19, 2010 affidavit). These affidavits aver that access to plaintiff's apartment was either prevented to Mr. Silva or only permitted by an unknown occupant to Mr. Deutsch. If plaintiff prevented defendants' agents from entering the apartment to effectuate the necessary repairs or remediation this would constitute an HMC violation and may serve as a basis for her eviction in a summary proceeding. HMC § 27-2008 provides that:

to recover possession of such dwelling unit from the tenant.

Defendants "should have been granted immediate access to abate the violations found to exist within tenants' apartment and cited in the HPD inspection report (see Housing Maintenance Code [Administrative Code of the City of New York] § 27-2008])." (Osman v Kirschenbaum, 24 Misc 3d 143[A] [App Term, 1d Dept 2009]). Accordingly, defendant TAYLOR WYTHE LLC shall remediate these violations and plaintiff MORALES shall provide defendant TAYLOR WYTHE LLC and its agents with access to her apartment, all as more fully set forth in the "Conclusion" section of this Decision and Order.

The Court denies the remaining branch of plaintiff's order to show cause for the imposition of civil penalties, pursuant to HMC § 27-2115. "HPD discharges its duty by

levying civil penalties (see Administrative Code § 27-2115 [h])." (D'Agostino v Forty-Three East Equities Corp., 16 Misc 3d 59, 61 [App Term, 1d Dept 2007]). Civil "penalties are payable to DHPD, not to the tenants (Admin. Code 27-2115 [i], [h])."

(Amsterdam v Goldstick at 831). "[W]hile the court may also assess penalties against the landlord, those penalties are payable only to HPD, even where a tenant initiates the proceeding. See Amsterdam v Goldstick, supra." (Dominguez v Zinnar, 2009 NY Slip Op 32621 [U] [Sup Ct, New York County 2009]).

ORDERED, that the cross-motion of defendants ELIEZER SCHWIMMER and TAYLOR [*9]WYTHE LLC (mot. seq. # 4), for an order, pursuant to CPLR § 3215 (c), dismissing plaintiff AWILDA MORALES' verified complaint because plaintiff failed to seek a judgment against defendants ELIEZER SCHWIMMER and TAYLOR WYTHE LLC within one year after defendants' default in interposing an answer, is denied; and it is further

ORDERED, that the motion of plaintiff AWILDA MORALES (mot. seq. # 3), for a default judgment or summary judgment against defendants ELIEZER SCHWIMMER and TAYLOR WYTHE LLC because defendants ELIEZER SCHWIMMER and TAYLOR WYTHE LLC failed in the instant action to interpose an answer and for other relief, is denied; and it is further

ORDERED, that defendants ELIEZER SCHWIMMER and TAYLOR WYTHE LLC shall interpose an answer to plaintiff's verified within thirty (30) days of service of a copy of this Decision and Order with notice of entry and thereafter a compliance conference will be held on July 15, 2011 in the Central Compliance Part (CCP), Room 469 in this Courthouse, at which time outstanding discovery issues will be addressed; and it is further

ORDERED, that the branch of plaintiff AWILDA MORALES' order to show cause to compel (mot. seq. # 2) to the extent it seeks the reinstallation of the removed radiators, the cure of the outstanding violations and the accrual of daily civil penalties, pursuant to HMC § 27-2115, is granted solely to the extent that:

ORDERED, that the remaining branch of plaintiff AWILDA MORALES' order to show cause to compel (mot. seq. # 2) to the extent that it seeks payment of plaintiff AWILDA MORALES' outstanding gas bill is denied without prejudice to renew within ninety (90) days of entry of this Decision and Order, during which time NATIONAL GRID is stayed from shutting off gas service to plaintiff AWILDA MORALES at Apartment # 1R at 1319 Halsey Street, Brooklyn, New York; and it is further

ORDERED, that should plaintiff AWILDA MORALES, within such ninety (90) day period, make an application to this Court submitting additional proof establishing some basis for the apportionment of the NATIONAL GRID charges between gas she used for cooking and gas used by space heaters in her apartment, then, upon service of such application on NATIONAL GRID, the stay upon NATIONAL GRID from shutting off gas service to plaintiff AWILDA MORALES at Apartment # 1R at 1319 Halsey Street, Brooklyn, New York shall be continued pending this court's determination of such application, and it is further

ORDERED, that plaintiff's counsel is directed, within fourteen (14) days after entry of this Decision and Order, to serve upon defendants' counsel and upon NATIONAL GRID a copy of this Decision and Order with notice of entry, pursuant to CPLR Rule 2103 (b) and CPLR § 5513 (a), and to file proof of service thereof with the Clerk's Office, and it is further