[*1]
New York City Hous. Auth. Webster Houses v Christian
2014 NY Slip Op 51227(U) [44 Misc 3d 1222(A)]
Decided on August 12, 2014
Civil Court Of The City Of New York, Bronx County
Rodriguez, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through August 26, 2014; it will not be published in the printed Official Reports.


Decided on August 12, 2014
Civil Court of the City of New York, Bronx County


New York City Housing Authority Webster Houses, Petitioner-Landlord,

against

Anita Christian, Respondent-Tenant.




803187/12



For Petitioner: Rigoberto Martinez



For Respondent: Julian S. Kaufman


Jose Rodriguez, J.

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Petitioner New York City Housing Authority (hereinafter "NYCHA") is a public corporation and the owner and landlord of premises located at 420 East 169th Street, Apartment 9A, Bronx, New York (hereinafter "the subject apartment"). Respondent is the tenant of record of the said apartment. Petitioner commenced this summary holdover proceeding in May 2012 seeking possession of the subject apartment.



Respondent's tenancy was terminated on November 16, 2006. By decision dated October 30, 2006 the hearing officer, after an administrative hearing, concluded that NYCHA sustained the charges against respondent consisting of non-desirability, breach of rules and regulations and non-verifiable income.



On March 28, 2012 petitioner served a 30 Day Notice to Vacate on respondent. After respondent failed to vacate petitioner commenced this holdover proceeding by personal service of the Petition and Notice of Petition on May 16, 2012. Respondent asserts that petitioner accepted rent not only during the intervening six year period but also after the expiration of the 30 day notice and prior to the commencement of the holdover proceeding. Respondent appeared in Court on June 13, 2012 and entered into a stipulation adjourning the proceeding until July 9, 2012 to enable respondent to pursue an Article 78 proceeding. The stipulation provided that respondent consented to the jurisdiction of the court and respondent was to pay and petitioner to accept use and occupancy without prejudice. On July 5, 2012 respondent filed an Article 78 petition challenging NYCHA's determination.By stipulations dated October 18 and November 21, 2012 the matter was again adjourned pending a determination of respondent's Article 78 petition. Each stipulation provided that use and occupancy was to be accepted without prejudice. By Decision and Judgment dated December 17, 2012 Supreme Court Justice Alexander W. Hunter, Jr. dismissed the Article 78 proceeding as barred by the Statute of Limitations. On January 13, 2013, the scheduled adjourned date, respondent failed to appear and petitioner was awarded a judgment of possession. On April 10, 2014, sixteen months after entry of the default judgment, respondent's request for an Order to Show cause was denied. Respondent thereafter retained counsel who filed the instant motion by Order to Show Cause. Petitioner opposes the motion and contest respondent's assertion that acceptance of rent constituted waiver.

Waiver occurs when one party voluntarily gives up or abandons a known enforceable right. Dice v. Inwood Hills Condominium, 237 AD2d 403, 655 N.Y.S.2d 562, at 404 (App. Div. 2nd Dept. 1997). Acceptance of rent may constitute waiver if it is done "with the knowledge of particular conduct which is claimed to be a default". Atkins Waste Materials, Inc. v. May, 34 NY2d 422, 358 N.Y.S.2d 129, at 427 (1974). While often used as an equitable remedy in summary holdover proceedings, waiver does have certain limitations. For example, in the context of administrative determinations waiver cannot be used to create rights where none exist. New York City Housing Authority v. Malik, 30 Misc 3d 134(A), 924 N.Y.S.2d 310 (App. Term 2nd Dept. 2011). In Malik, the respondent was found ineligible for continued occupancy after an administrative hearing. After the respondent's unsuccessful appeal, the petitioner commenced a holdover proceeding. The parties entered into a stipulation agreement in October 2002 for the respondent to vacate by December 31, 2003. The respondent failed to vacate and paid rent for several years without eviction. The respondent alleged that the petitioner's continued acceptance of rent constituted waiver of the NYCHA's administration determination of ineligibility and thus granted the respondent tenancy rights. The court disagreed and held that equitable estoppel could not create a tenancy where none existed. Id. at 1. Although the court cannot create a tenancy rights where none exists, it may still review the adequacy and sufficiency of predicate notices which come before it. New York City Housing Authority v. McNeil, 17 Misc 3d 1130(A), 851 N.Y.S.2d 71, at 2 (2007). In McNeil the petitioner commenced a summary holdover proceeding after it had terminated the respondent's tenancy. In July 2005, the holdover was discontinued due to defective service. A non-payment proceeding was brought in October 2005 and discontinued shortly thereafter. The petitioner then served an identical 30 day notice in April 2006. The court found that while it did not have the power to overrule an administrative determination, it did have the power to review the 30 day notice before it. Id. at 2. The court stated that "acceptance of rent after the expiration of the notice, reinstates the tenancy by [*2]operation of law", because the respondent was "left the reasonable impression that a landlord- tenant relationship was reinstated." Id. at 3, citing Mannino v. Figueroa, 11/22/95 NYLJ 31 (col 1) and Albanese v. Wilson, 1/3/2007 NYLJ 22, (col 1).

A Housing Authority tenancy is terminated upon the expiration of the 30 day Notice to Vacate. In New York City Housing Authority v. Aviles, N.Y.L.J., June 25, 1992, p. 25, col. 4 (App. Div., 1st Dept.) the court found that



Neither the administrative finding of termination nor the March 8, 1989 notice of that finding with advice that the tenancy shall therefore be terminated....constituted an actual termination of the tenancy on a date certain. Rather the disposition and notice are merely evidence that the Authority in accordance with the requisite procedures antecedent to eviction proceeding, had made a determination to terminate the tenancy. In the subsequent notice to vacate, the Authority notified the tenant that the tenancy was terminated as of December 31, 1989... thus December 31, 1989 must be viewed as the termination date for purposes of maintaining an eviction action in housing court.



Accordingly, in the instant case, the window period would be April 30, 2012, the termination date contained in the 30 day notice, and May 16, 2012, the date respondent was personally served with the Petition and Notice of Petition. Respondent fails to demonstrate that petitioner accepted rent payments or commenced nonpayment proceedings during the window period. If payments were accepted after the commencement of this holdover proceeding they were accepted without prejudice as agreed to pursuant to the terms of the stipulations of adjournment. Thus no waiver occurred and respondents' tenancy was not reinstated by the acceptance of rent payments and/or use and occupancy after issuance of NYCHA's Determination of Status.

This court lacks the jurisdiction to determine that Petitioner erred in terminating respondent's tenancy. Estoppel is not available against a governmental agency engaging in the exercise of its governmental function. Advanced Refractory Tech. V. Power Authority of the State of New York, 81 NY2d 670 (1993); Gutierez v. Rhea, 2013 NY Slip Op 02453 (App. Div. 1st Dept. Courts generally favor dispositions made on the merits rather than on a default of a party. Goldstein Affiliates, Inc. v. Len Art Knitting Corp., 75 AD2d 551, 427 N.Y.S.2d 233 (1st Dept., 1980). However, to vacate a default judgment the defaulting party must set forth a prima facie showing of a reasonable excuse for the default and underlying meritorious defense. See, New York City Housing Authority v. Torres, 61 AD2d 681, 403 N.Y.S.2D 527 (1st Dept., 1978), Tai Sang Kwong v. Budge Wood Laundry Service, Inc., 97 AD2d 691, 468 N.Y.S.2d 110 (1st Dept., 1983). Where the defaulting party fails to provide an excusable default and meritorious defense the motion seeking to vacate the default judgment should be denied. See, Metropolitan Ins. and AnnuityCo. v. Eromosele, 10 Misc 3d 141(A), 814 N.Y.S.2d 891 (App. Term 1st Dept., 2006); 348 West 115th LLC v. Robinson, 2003 WL 1701517 (.App.Term, 1st Dept. 2003). In the matter before this court respondent fails to demonstrate any explanation for her sixteen month delay in seeking relief after entry of the default judgment. In addition, respondent fails to demonstrate a meritorious defense to the underlying holdover proceeding.

Based on the foregoing respondent's motion to seeking dismissal is denied. Taking into



consideration the length of respondent's tenancy, execution of the warrant of eviction is stayed



until September 30, 2014 conditioned upon respondent paying use and occupancy as it becomes



due.

The foregoing constitutes the decision and order of this Court.

___________________________



Date: Bronx, New YorkHon. Jose Rodriguez



August 12, 2014Judge, Housing Part