Herring v Diplomat Prop. Mgr. LLC

Civil Court of the City of New York, Kings County

Decided on April 21, 2026

Index No. LT-002967-19/KI

Enedina Pilar Sanchez, J.

NYSCEF Doc. No. 180- 216

Before the court is a most unusual and complicated HP proceeding.

In November 2019, Petitioner filed this HP case to address an Order to Repair/Vacate Order issued by the Department of Housing Preservation and Development ("HPD"). This was a "paper" case, and as we entered the COVID-19 pandemic the case was converted to an electronic case under New York State Electronic Filing System (NYSCEF). Commencing in December 2019 through the present there have been 17 motions/orders to show cause filed.

Certain orders to show cause have been filed simultaneously, creating calendar misperceptions and overlapping request for the same remedies. Here, the court will address Petitioner's Notice of Motion, Seq. No. 13 and Petitioner's Order to Show Cause, Seq. No. 14.

Petitioner's Notice of Motion, Seq. No. 13, seeks an order issuing a deadline for Respondent-owner to complete work and make an apartment available to Petitioner at 281 Wyona Street, Brooklyn, New York. The parties, through their attorneys, designed an elaborate settlement plan that called for Respondent to do construction, renovation, and other building work to create a rent stabilized unit for Petitioner.^FN1 The Stipulation of Settlement included alternative housing for Petitioner, without any rental obligation including electrical usage, while the construction work takes place at 281 Wyona Street. Since the agreement, Petitioner has been residing at 659 Liberty Avenue, Apartment 2F.

The building that is the subject of this proceeding is a three-story building. The NYC Department of Buildings ("DOB") website has archived an I-Card indicating that the building was constructed circa 1905.

Petitioner also sought a hearing for civil penalties pursuant to prior Orders. Before the Notice of Motion was scheduled to be heard, Petitioner filed Order to Show Cause, Seq. No. 14.

Order to Show Cause, Seq. No. 14, was filed to address a condition regarding lack of electrical services at 659 Liberty Avenue, Apartment 2F, Brooklyn. Clearly it is not the subject premises underlying the instant Index Number. The Order to Show Cause sought a temporary restraining order (TRO) directing Respondent to restore electricity at the temporary apartment.

Before the return date of Order to Show Cause, Seq. No. 14, electrical services had been restored. Respondent indicated that payments had been made to Con Edison, but payment was applied to another account. The payments were corrected, and electrical services restored.

Petitioner's request for a TRO as to an apartment that was not the basis of the underlying petition has been problematic. Petitioner argued that the temporary apartment was referenced in the Stipulation of Settlement. The apartment at 659 Liberty Avenue should have its own HP petition. Petitioner has since filed a separate HP case for the apartment at 659 Liberty Avenue under Index No. LT-324961-25/KI, ("the second HP case" for purposes of ready references). The second HP case was heard. An Order to Correct was issued on December 8, 2025. Petitioner's harassment claim was transferred to Part X on February 3, 2026. The harassment claim is scheduled to proceed to trial on or about June 10, 2026.

Discussion and Legal Conclusion

Petitioner's Notice of Motion, Seq. No. 13, asking the court to issue "a clear and unequivocal deadline" for Respondent-owner to "complete repairs and restore" Petitioner would seem to call upon the court to modify the 2-Attorney Stipulation of Settlement of January 14, 2021. The court is not inclined to modify a 2-Attorney Stipulation of Settlement.

The court takes judicial notice of the DOB websites and notes various matters that must be addressed with DOB before the subject premises can be made available for Petitioner. Given the complications and requirements by DOB it would be speculative for the court to issue an "unequivocal deadline" as requested by the Petitioner in the instant motion. The court would have to engage in an extensive fact-finding mission to determine what is going on at DOB regarding the subject premises and then determine what is a reasonable date for Respondent to comply, which at best would be speculative and could not be an "unequivocal deadline."

Here, the terms of the 2-Attorney Stipulation of Settlement are not alleged to be ambiguous, or that there was fraud or mistake or any other ground for the court to modify the terms of the stipulation. Petitioner's artful pleading, however, does not disguise the request that the court effectively modify the terms of the 2-Attorney Stipulation and impose a fixed compliance date. Petitioner's request must be placed in the context of the events that have transpired and to the extent that modification is sought, the request must be denied. Petitioner would have to show good cause, such as fraud, collusion, mistake, accident, or some other ground of the same nature to allow the court to modify and issue the relief sought by Petitioner. See, In re Estate of Frutiger, 29 NY2d 143 [1971]; Hallock v State of New York, 64 NY2d 224 [1984]; Shalimar Leasing, LP v. Medina, 73 Misc 3d 22 [App Term, 2nd Dept 2021].

While the instant motion does not explicitly seek to vacate the 2-Attorney Stipulation, it is effectively asking the court to modify the 2-Attorney Stipulation of Settlement. Petitioner, however, is not without a remedy and has filed other motions seeking civil penalties and contempt of court. The court determines that the 2-Attorney Stipulation provides the appropriate remedy, Petitioner continues to be housed, without any financial obligation, continuing until the subject premises at 281 Wyona Street, Brooklyn, New York are completed.

Accordingly, Motion Seq. No. 13 is denied.

Regarding, Order to Show Cause, Seq. No. 14, the electrical services were restored. Petitioner has also filed a case corresponding to the apartment where the electrical services were interrupted. The court further notes that Petitioner's reference to a "Order" from the Appellate Term, Second Department on October 23, 2024 was an application pursuant to CPLR 5704(b). Housing Court had declined Petitioner's prior Order to Show Cause as the subject of the emergency relief was the temporary relocation apartment at 659 Liberty Avenue. The electrical services were restored, and no further findings were made or orders entered.

Pursuant to the April 10, 2025 Decision/Order of Honorable Weisberg, Petitioner's request for civil penalties was "granted insofar as the parties shall appear . . . for a conference on Petitioner's claims regarding civil penalties" and to schedule a hearing date to determine "whether and how much civil penalties shall be imposed." [NYSCEF Doc. No. 180]

The hearing date for the civil penalties did not ensue as the court was tasked with addressing new motions filed and then Appellate Term issued a stay.

On or about October 16, 2025, the Appellate Term, Second Department stayed all hearings and determinations for this case that were pending in Part B of the Housing Court. [NYSCEF Doc. No. 242 and 243.] The stay was effectively cancelled upon the Appellate Term denying Respondent's motion on or about January 7, 2026. Petitioner has since filed another Order to Show Cause, Motion Seq. No. 17, which is scheduled to be heard on April 22, 2026.

Accordingly, it is Ordered that Petitioner's Notice of Motion, Seq. No. 13, is denied; and Order to Show Cause, Seq. No. 14, is denied as moot.

This proceeding is scheduled to appear on the Part B calendar on April 22, 2026, at 9:30 AM, for all purposes. The April 10, 2025 Decision/Order of Hon. Weisberg regarding civil penalties continues in full force and effect.

This Decision/Order will be filed to NYSCEF.

This constitutes the Decision/Order of the Court.

Date: April 21, 2026

Hon. Enedina Pilar Sanchez

Housing Court Judge