Civil Court of the City of New York, New York County, June 2, 2023

Edward Alper for petitioner.

Judith Killen for respondent.

The decision and order on this motion are as follows:

276-W71 LLC, the petitioner in this proceeding (petitioner), commenced this summary proceeding against G.S., the respondent in this proceeding (respondent), seeking a money judgment and possession of 276 West 71st Street, room 17, New York, New York (the subject premises) on an allegation of nonpayment of rent. The parties settled this proceeding. Petitioner now moves for a judgment against respondent and for attorneys' fees. Respondent cross-moves to vacate a stipulation, to be restored to possession of the subject premises, for a finding that petitioner and petitioner's counsel violated RPAPL{**80 Misc 3d at 218}768, for civil penalties for a violation of RPAPL 768, and for costs and sanctions against petitioner and petitioner's counsel. The court resolves both motions by this order.

Undisputed Facts

The court appointed a guardian ad litem (GAL) for respondent by an order dated August 17, 2022. Respondent also appeared by counsel. With counsel representing both parties, the parties settled this matter according to a stipulation dated January 19, 2023 (the stipulation). The stipulation obligated respondent to pay petitioner $18,150 on or before February 21, 2023 (the deadline). On default in payment, petitioner could move for the entry of a judgment and for attorneys' fees. The stipulation provided that in the event of a motion for a judgment, the only defense would be a delay by the Human Resources Administration (HRA) in processing checks after an approval.

Sometime in early February, before the deadline, counsel for the parties communicated with one another, to the effect that HRA denied respondent's application for assistance with payment of arrears.

Sometime thereafter, someone who works for petitioner spoke with respondent directly without the presence of respondent's GAL or attorney. As a result of this communication, respondent signed a statement dated February 10, 2023, purporting to surrender possession of the subject premises, which are rent-stabilized, in return for $7,500, without prejudice to petitioner's claims, and petitioner regained possession of the subject premises from respondent at that point in time.

Petitioner subsequently moved for a judgment against respondent for the rent arrears. Petitioner's managing member averred on February 27, 2023, in support of the motion for a judgment that he was entitled to a money judgment for the full amount, with no mention that petitioner had possession of the subject premises.

After respondent made his motion, petitioner made an application to adjourn respondent's motion to interpose responsive papers. The court conditioned such an adjournment on petitioner's restoration of respondent to possession of the subject premises, without prejudice to petitioner's claims. Respondent has since been restored to possession of the subject premises.{**80 Misc 3d at 219}

Discussion

Conduct is frivolous and therefore sanctionable if, inter alia, it is completely without merit in law. (22 NYCRR 130-1.1 [c] [1].) In determining whether the conduct undertaken was frivolous, the court shall consider, inter alia, the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party. (22 NYCRR 130-1.1 [c] [3].)

The court shall appoint a guardian ad litem for a litigant if the court finds that the litigant is incapable of protecting their interests. (CPLR 1201.) Accordingly, the court's appointment of the GAL for respondent compels the conclusion that the court made a finding that respondent is incapable of protecting his interests. After the appointment of the GAL, and with notice that the court had made this finding and appointed a GAL, petitioner still negotiated about the subject of this litigation with respondent directly, without the presence of the GAL or respondent's attorney and, indeed, without notice to the GAL or respondent's attorney or the court, causing respondent to surrender possession of a rent-stabilized apartment. Petitioner even avoided putting the court on notice of this conduct when petitioner subsequently moved for a judgment against respondent. Such conduct undermines the court's findings that respondent requires the services of a guardian ad litem.

The court has a policy of rigorous protection of the rights of the infirm. (Matter of Jesten J.F. [Ruth P.S.], 167 AD3d 1527, 1528 [4th Dept 2018]; Vinokur v Balzaretti, 62 AD2d 990 [2d Dept 1978]; Kalimian v Driscoll, 208 NYLJ 13, 1991 NY Misc LEXIS 854 [App Term, 1st Dept 1991].) To put it less prosaically, the court must ensure that the litigation will not "run roughshod" over the rights of the disabled. (Countrywide Home Funding Co. v Henry J.K., 16 Misc 3d 1132[A], 2007 NY Slip Op 51674[U], *3 [Sup Ct, Nassau County 2007].) Accordingly, a party cannot take a default judgment against an adversary who may need a guardian without notifying the court of such a need. (Sarfaty v Sarfaty, 83 AD2d 748, 749 [4th Dept 1981]; Oneida Natl. Bank & Trust Co. of Cent. N.Y. v Unczur, 37 AD2d 480, 484 [4th Dept 1971]; New York City Hous. Auth. [Amsterdam Houses] v Richardson, 27 Misc 3d 1204[A], 2010 NY Slip Op 50547[U] [Civ Ct, NY County 2010]; New York City Hous. Auth. v Beverly B., 233 NYLJ 70, 2005 NY Misc LEXIS 3324{**80 Misc 3d at 220}[Civ Ct, NY County 2005]; Matter of Linden-Rath, 188 Misc 2d 537, 540 n 2 [Sup Ct, NY County 2001]; Jackson Gardens LLC v Osorio, NYLJ, July 11, 2001 at 25, col 6 [Civ Ct, Queens County 2001]; Parras v Ricciardi, 185 Misc 2d 209, 213-214 [Civ Ct, NY County 2000]; New York Life Ins. Co. v V.K., 184 Misc 2d 727, 737 [Civ Ct, NY County 1999].)

If a litigant cannot obtain a default determination against an adversary who needs a guardian without disclosing that need to the court, it stands to reason that the same litigant cannot negotiate a settlement with such an adversary in the absence of the guardian and without notice as such. Correspondingly, actions taken in litigation against litigants who require guardians ad litem without their guardians involved are unenforceable and ineffective (Cowell v Dickoff, 60 AD3d 716, 717 [2d Dept 2009]; Jamsol Realty, LLC v German, 46 Misc 3d 11, 15 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; SG 455 LLC v Green, NYLJ 1202740678954, *1 [Civ Ct, Kings County 2015]; Countrywide Home Funding Co., 16 Misc 3d 1132[A], 2007 NY Slip Op 51674[U]; Parras, 185 Misc 2d at 213-214), even when, for example, those proceedings entailed a stipulation executed by an attorney before the litigant obtained a guardian. (Genesis Holding, LLC v Watson, 5 Misc 3d 127[A], 2004 NY Slip Op 51218[U] [App Term, 1st Dept 2004]; cf. Matter of Thomas J., 130 AD3d 1030, 1031 [2d Dept 2015]; Wright v Rickards, 94 AD3d 874, 875 [2d Dept 2012] [once a guardian is appointed for an incapacitated person, litigation against the incapacitated person and against the guardian as representative of the incapacitated person should not proceed without the permission of the court which appointed the guardian].)

Petitioner defends its actions by quarreling with the merits of the court's appointment of the GAL for respondent. If a party takes issue with an order of the court, the party's remedy is to appeal or to make a motion pursuant to CPLR 2221. The party's remedy is decidedly not to take it upon itself to flout the authority of the court (New York City Hous. Auth. v Porter, 40 Misc 3d 41, 42-43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), and fashion its own remedy. (New York City Coalition to End Lead Poisoning v Giuliani, 248 AD2d 120, 121 [1st Dept 1998].)

Petitioner also argues that 1234 Broadway LLC v Feng Chai Lin (25 Misc 3d 476 [Civ Ct, NY County 2009]) stands for the proposition that the appointment of a guardian ad litem does not take away the autonomy of the ward, such that petitioner{**80 Misc 3d at 221} was free to negotiate an agreement with respondent in the absence of the GAL. However, 1234 Broadway LLC (25 Misc 3d at 476) essentially stands for the proposition that a guardian ad litem cannot defy the wishes of their ward.^[FN*] An attempt to leverage a ward's autonomy as such to support a proposition that an adversary may effectively ignore a finding of a court that a litigant is incapable of protecting their interest is a bad-faith perversion of the holding. For the same reason, petitioner's assertion that respondent is the party who initiated negotiations to settle the matter with a surrender is irrelevant. The appropriate response to a settlement overture from an adversary represented by a guardian ad litem in the litigation is to politely decline and notify the guardian of the exchange.

Petitioner also cites 1234 Broadway LLC (25 Misc 3d at 476) for the proposition that the GAL's mandate did not extend to the subject matter of petitioner's negotiation with respondent. Petitioner argues that the GAL's involvement with that negotiation would have constituted an impermissible management of respondent's personal affairs. However, a [*2]guardianship ad litem applies to the proceeding in which the court appointed the guardian. (Id. at 482.) If petitioner could bypass the GAL to negotiate for possession of the subject premises during the pendency of litigation commenced by a petition seeking, inter alia, possession of the subject premises, then the application of the guardianship to this proceeding has no meaning.

The extent of petitioner's negotiation with respondent underscores petitioner's audacity in disregarding the court finding that respondent is not capable of protecting his rights. Petitioner did not just negotiate with respondent and leave it at that. Petitioner did not negotiate just any old agreement with respondent without his attorney or GAL present, like an agreement to pay by a date certain. Petitioner negotiated a surrender of a rent-stabilized tenancy with respondent without his attorney or GAL present—in the context of a nonpayment proceeding no less—a concession so impactful that the Legislature requires the court to engage in extra allocution with pro se tenants who stipulate as such. (RPAPL 746 [2] [c] [iv].)

[1] Petitioner's flagrant defiance of the court's finding that respondent requires a GAL, the maximal impact of the agreement petitioner negotiated with respondent, and petitioner's{**80 Misc 3d at 222} failure to notify counsel or the court, most glaringly in petitioner's subsequent motion for a money judgment against respondent, are indeed completely without merit in law and, therefore, sanctionable.

A purpose of sanctions is to advance the public interest (TAG 380, LLC v Estate of Ronson, 69 AD3d 471, 475 [1st Dept 2010]), in part to prevent malicious litigation tactics. (Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]; Matter of Kernisan v Taylor, 171 AD2d 869, 870 [2d Dept 1991].) A sanction substantial enough to disincentivize future litigants from bypassing guardians would comport with this rule.

Be that as it may, the court must also weigh the amount sought in the lawsuit, the culpability of the party's conduct, and prejudice to the adversary (Vicom, Inc. v Silverwood Dev., 188 AD2d 1057 [4th Dept 1992]; Bedford Gardens Co. LP v Berkowitz, 15 Misc 3d 1132[A], 2007 NY Slip Op 50949[U] [Civ Ct, Kings County 2007]), considerations that bring into play both petitioner's payment of $7,500 to respondent and petitioner's subsequent restoration of respondent to possession of the subject premises. The record before the court does not show how much of the $7,500 respondent has left, although it appears that respondent used at least some of the money for hotel stays. The extent to which respondent retains the buyout sum comprises a potential equitable factor weighing in favor of petitioner in setting a sanctions amount. (See Pawar v The Stumble Inn, 2012 NY Slip Op 32667[U] [Sup Ct, NY County 2012] [inequitable conduct of an adversary of a party who would be sanctioned figures into the determination of sanctions].)

Not only is this equitable factor relevant to a final determination of an amount appropriate for sanctions, it has potential relevance to petitioner's motion for a final judgment as well. As the record on these questions is not sufficient at the moment for the court to properly fix a sanctions amount, the court will calendar both the sanctions motion and the motion for a judgment for a conference and, if necessary, a hearing.

The sanctionable conduct found above only applies to petitioner. The record is insufficient to demonstrate as a prima facie matter that petitioner's counsel engaged in like conduct.

As mentioned above, respondent moves to be restored to possession. For the reasons stated above, the court already granted this relief as a condition of granting a prior application of petitioner to adjourn respondent's motion for that relief. Respondent{**80 Misc 3d at 223} also moves to vacate what he characterizes as "the stipulation." However, the ostensible agreement to move was not a "stipulation," and there is nothing to vacate.

Respondent also moves for a finding that petitioner violated RPAPL 768. However, Civil Court does not have the jurisdiction to render declaratory relief. (Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, 129 [2d Dept 2018]; Zuckermann v Spector, 287 AD2d 402 [1st Dept 2001].) Respondent also moves for an award of civil penalties pursuant to RPAPL 768, a request for relief that warrants an interpretation of the statute.

[2] Prior to the enactment of RPAPL 768, a party claiming an illegal lockout could seek possession by a summary proceeding brought pursuant to RPAPL 713 (10) and could seek damages on a private cause of action pursuant to RPAPL 853. Both RPAPL 713 (10) and RPAPL 853 remain in effect through and after the enactment of RPAPL 768. As the court must avoid a construction rendering statutory language to be superfluous (Matter of New York County Lawyers' Assn. v Bloomberg, 95 AD3d 92, 101 [1st Dept 2012]), the court does not construe the enactment of RPAPL 768 to create either a duplicative summary proceeding for recovery of possession on an allegation of a lockout or a duplicative private right of action for damages. Rather, the court construes the enactment of RPAPL 768 to give rise to the same kind of criminal liability statewide as Administrative Code of the City of New York § 26-521 (a) (3) had already imposed on anyone found guilty of an illegal lockout within New York City.

In addition to criminal liability, RPAPL 768 also provides for civil penalties. However, a provision for civil penalties, which are normally collected by a government agency, does not necessarily give rise to a private right of action. (Board of Mgrs. of 150 E. 72nd St. Condominium v Vitruvius Estates LLC, 2018 NY Slip Op 31213[U] [Sup Ct, NY County 2018], affd on other grounds 173 AD3d 589 [1st Dept 2019]; Herbert Paul, CPA, P.C. v 370 Lex, L.L.C., 7 Misc 3d 747, 751 [Sup Ct, NY County 2005]; Clancy v State of New York, 126 Misc 2d 292, 293 n 1 [Ct Cl 1984].) Where affected parties have a derivative cause of action for civil penalties, the statutory scheme spells it out, as is the case with the New York City Housing Maintenance Code (Administrative Code § 27-2115 [h] [1]; Dominguez v Zinnar, 2009 NY Slip Op 32621[U], *6 [Sup Ct, NY County 2009]; Shapiro v Townan Realty Co., 162 Misc 2d 630, 634 [Civ Ct, NY{**80 Misc 3d at 224}County 1994]; Amsterdam v Goldstick, 136 Misc 2d 831 [Civ Ct, NY County 1987]). RPAPL 768 does not contain similar provisions. Accordingly, Housing Court is not the forum to adjudicate civil penalties pursuant to RPAPL 768 (Cordova v 1217 Bedford Realty LLC, 67 Misc 3d 1206[A], 2020 NY Slip Op 50423[U] [Civ Ct, Kings County 2020]), a proposition underscored when courts have distinguished the relief litigants may obtain in Housing Court pursuant to RPAPL 713 (10) from relief pursuant to RPAPL 768. (Vazquez v Suljovic, 74 Misc 3d 1226[A], 2022 NY Slip Op 50231[U] [Civ Ct, Queens County 2022]; Gonzalez v NYCHA - Borinquen Plaza Houses, 71 Misc 3d 1213[A], 2020 NY Slip Op 51611[U] [Civ Ct, Kings County 2020].)

Accordingly, it is ordered that the court denies the motion for restoration to possession as moot, as the court has already granted that relief and respondent is now in possession of the subject premises, and it is further ordered that the court denies the motion for an order finding that petitioner is in violation of RPAPL 768, and it is further ordered that the court denies the motion for civil penalties, and it is further ordered that the court denies the motion to vacate a stipulation, and it is further ordered that the court denies the motion to sanction petitioner's counsel, and it is further ordered that the court grants the motion to sanction petitioner, and it is further ordered that the court shall restore this matter for a conference at a date to be set in consultation with counsel and the GAL and possibly for a hearing regarding the appropriate [*4]amount of the sanction, and it is further ordered that the court shall restore the motion for a judgment for a similar evaluation of the appropriate amount.