[*1]
Crotona Hous. Assoc., L.P. v Pagán
2015 NY Slip Op 50454(U) [47 Misc 3d 1206(A)]
Decided on March 27, 2015
Civil Court Of The City Of New York, Bronx County
Vargas, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 27, 2015
Civil Court of the City of New York, Bronx County


Crotona Housing Associates, L.P., Petitioner-Landlord,

against

Stacy Pagán, Respondent-Tenant.




L & T 040223/2014


Gregory T. Smith, Esq.
Rappaport, Hertz, Cherson & Rosenthal
18-35 Queens Boulevard
Forest Hills, New York 11375

Coco Joly, Esq.
Legal Services NYC-Bronx
349 East 149th St., 10th Floor
Bronx, New York 10451


Javier E. Vargas, J.

Orders to Show Cause, Affirmation & Exhibits Annexed.......................1, 2

Supplemental Affirmation in Support & Exhibits Annexed....................3

Affirmation in Opposition........................................................................4

Reply Affirmation.....................................................................................5

Upon the foregoing papers and for the following reasons, the motions by Respondent-Tenant Stacy Pagán ("Tenant"), for, inter alia, vacatur of a default Judgment of Possession, are denied.

Since 2010, Tenant has resided with her two minor children at the subject Premises, located at 670 East 170th Street, Apartment 3B, in the Bronx, New York — owned by Petitioner-Landlord Crotona Housing Associates, LP ("Landlord"), pursuant to an Apartment Lease Agreement, which has been renewed yearly, the latest being from September 2014 to the present at a rent of $915 per month. The Premises are subject to the Rent Stabilization Law of 1969 as amended, and have been duly registered with the NYS Division of Housing and Community Renewal. Although Tenant receives the Family Eviction Prevention Supplement ("FEPS") to assist her with the rent, rent arrears apparently accumulated. This prompted Landlord to serve upon her a Rent Demand Notice dated June 24, 2014, advising her that she was indebted in the sum of $1,874.46 for rent arrears up to that date, which had to be paid by July 5, 2014, or face commencement of a summary proceeding to recover possession of the Premises against her. No payment was received.

As a result, by Notice of Petition and Petition filed July 15, 2014, Landlord commenced the instant summary proceeding to recover possession of real property (RPAPL 701), on the grounds of nonpayment of rent in the amount of $3,031.46 in rent arrears for several months at $907 per month, plus costs and counsel fees. Despite the Rent Demand Notice and the now-acknowledged proper substitute service of process upon her, Tenant failed to answer or appear on the scheduled court appearance. As such, Landlord successfully applied for a default judgment against her, which Judgment of Possession (Rashford, J.) was entered on September 22, 2014, and a Warrant of Eviction issued shortly thereafter.

Facing imminent execution of the Warrant, Tenant moved, by Order to Show Cause dated October 10, 2014, for vacatur of the Default Judgment based on her failure to appear, conclusorily claiming that she never received the Notice of Petition and Petition and that, in any event, Landlord's agent informed her not to come to court and that nothing was owed in rent arrears. By Order (Pinckney, J.) dated October 30, 2014, the Court adjourned the matter for a traverse hearing on the lack of service allegation. Upon securing Legal Services NYC — Bronx, however, Tenant waived her request for a Traverse Hearing, by undated Stipulation of Settlement, and Landlord agreed to make some repairs to her Premises.

By Order to Show Cause dated October 29, 2014, Tenant formally withdraws her prior motion, but again seeks: (1) vacatur of the Default Judgment against her pursuant to CPLR 5015(a); (2) leave to file a late Answer pursuant to CPLR 3025(b); and (3) dismissal of the instant proceeding pursuant to CPLR 3211(a)(1), on the grounds that she regretfully failed to appear on the court date because she was under the mistaken impression that the proceeding had been resolved after her alleged conversation with an unnamed Landlord's representative and Landlord's receipt of FEPS payments for certain of the months in question. By Supplemental Affirmation in Support, Tenant additionally claims that dismissal of the proceeding is warranted based on documentary evidence conclusively establishing that Landlord never served a proper [*2]rent demand upon her reflecting the correct months and rent amounts owed, and that there are rent overcharges and habitability conditions.

By Affirmation in Opposition dated February 23, 2015, Landlord argues that the Judgment should not be vacated because Tenant's papers lack a reasonable excuse or meritorious defense to the proceeding. Contradicting Tenant's vague assertions of conversations with Landlord's agents, Landlord submits counsel's affirmation and an Affidavit from Landlord's legal department supervisor, swearing that nobody from their offices instructed Tenant not to report to court or that the proceeding had been cancelled. Moreover, they affirm that a rent ledger was faxed to Tenant at her request, clearly showing that her rent indebtedness was not fully paid by FEPS, and that there is no rent overcharge. This Court agrees with Landlord's arguments.

It is well-settled that the Housing Court is vested with broad discretionary and equitable jurisdiction over housing matters (CCA 110). Among them is that a final judgment of possession in favor of a landlord obtained as a result of a tenant's default may be vacated by the issuing court (see CPLR 5015), upon an order to show cause brought by the tenant "based upon both a showing of underlying merit and a reasonable excuse for the default" (Brusco v Braun,199 AD2d 27, 34 [1993], quoting New York City Hous. Auth. v Torres, 61 AD2d 681 [1978]; see 160—62 East 2nd St. H.D.F.C. v Beaumont, 29 Misc 3d 138[A], 2010 NY Slip Op 52037[U] [AT 1st 2010]). Nevertheless, "in the absence of good cause, the judgment and warrant should not be vacated" (1199 Hous. Corp. v Warren, 2003 NY Slip Op 51046[U] [2003]; see RPAPL § 749[3]; New York City Hous. Auth. v. Torres, 61 AD2d at 681).

Applying these legal precepts to the instant matter, Tenant has failed to sufficiently establish either a reasonable excuse for her default in answering or a meritorious defense to the Proceeding. Initially, Tenant disputed her receipt of the Petition commencing this proceeding, then she acknowledged receipt, but maintained that she did not appear in court because of her impression that the proceeding against her was resolved. While candidly acknowledging her intentional default, she claims that unnamed representatives from Landlord's management office and counsel's office dissuaded her from appearing in court. However, she fails to specify who told her that and Landlord provided evidence refuting her allegations. Her deliberate default in appearance becomes, thus, inexcusable, especially given the various notice provisions calculated to alert her to the imminence of litigation and to prompt her appearance in court, including the undisputed Rent Demand and the Court postcard notice.

Nor does Tenant show a meritorious defense to this nonpayment proceeding. She first argues that Landlord's Rent Demand was defective as a matter of law pursuant to RPAPL 711(2), which requires a landlord to demand payment of outstanding rent from a tenant as a condition to the commencement of a nonpayment proceeding. It is well-settled that a "proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period" (542 Holding Corp. v Prince Fashions, Inc., 46 AD3d 309, 311 [2007], quoting Schwartz v Weiss-Newell, 87 Misc 2d 558, 561 [1976]).

Here, the June 24, 2014 Rent Demand properly included such a good faith approximation of $1,874.46 in rent arrears, specified that the months owed were April, May and June 2014, and [*3]afforded Tenant at least five days to pay those arrears (id.; cf. Dendy v McAlpine, 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U] [AT 2nd 2010]). This appears to be a "good faith" approximation since no discrepancies exist between Landlord's rent ledger, Rent Demand and Petition (cf. Schwartz v. Weiss—Newell, 87 Misc 2d 558, 561 [Civ Ct 1976]). Although Tenant noted that FEPS had been paying a shelter allowance on her behalf, the Department of Social Services printout shows that some of the checks were cashed after the commencement of this proceeding and that her benefits were reduced from $850 to $621 per month in June 2014. Her belief that FEPS had fully paid all the rent arrears was belied by Landlord's provision to her of a rent ledger showing arrears, and her failure to completely pay her portion of the rent. In any event, it was incumbent upon her to have appeared in court and filed an Answer challenging the alleged rent arrears and raising her alleged habitability defenses; not to merely wait until the entry of a Default Judgment to then challenge the same. Finally, her conclusory allegations about a rent overcharge appear meritless.

In accordance with the foregoing, Tenant's motions for dismissal and vacatur of the Judgment of Possession are denied, and execution of the Warrant of Eviction is hereby stayed until ten days after service of this Order with Notice of Entry. This constitutes the Decision and Order of the Court.

E N T E R:

Dated: March 27, 2015

Bronx, New YorkJ.H.C.