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Winthrop Realty LLC v. Menal

Other Lower Courts

August 13, 2007

Winthrop Realty LLC, Petitioner,
v.
Jovany Menal, Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Anthony J. Fiorella, J.

Petitioner moves pursuant to CPLR 2221 for an order of reargument of this Court's order dated May 15, 2007 wherein the Court stayed reletting of the premises for five (5) days to allow respondent to tender $2074 to petitioner as all rent arrears, marshal and attorney fees due through May 2007. The motion is denied.

Essential Facts

Respondent is a rent stabilized tenant who has lived in the subject apartment for fourteen years. He has been diagnosed with Schizoaffective Disorder and HIV. Petitioner has had knowledge of both conditions for some time. Respondent primarily lives on SSI disability income, currently $1024 per month. On May 11, 2007 respondent was evicted from his apartment because arrears of $499.19 had not been paid. Respondent's failure to pay the arrears established owed pursuant to the stipulation of settlement arose solely from the failure of the Department of Social Services ("DSS") to release checks already issued in the landlord's name. Had DSS released these checks, the eviction would have been averted.

In granting respondent's Order to Show Cause (OSC), the Court was persuaded by documentary evidence showing that the DSS check was dated before respondent was evicted and testamentary evidence from respondent's social worker that she had attempted to get DSS to release the check to the landlord.

Respondent was evicted on May 11, 2007. Previously, respondent requested a grant from the HIV/AIDS Service Administration to cover the rent arrears. The request was approved, and checks for the $499 were issued on May 7, 2007, but these checks were not tendered to the landlord until after the eviction. Following his eviction, respondent petitioned the Court for immediate access to the apartment to retrieve his medications. He was provided access to the apartment on May 11, approximately three and one-half hours after the marshal took possession of the apartment on petitioner's behalf. Upon entering the apartment, respondent found that the landlord had been there before him and had smashed the toilet into pieces, had destroyed the sink in the bathroom and the stove in the kitchen, and had ripped off the doors to the cabinets and to the refrigerator.

On May 15, the return date of his OSC, respondent, now represented by counsel for the first time, argued that his default on the stipulation was de minimis as well as inadvertent and that he should be restored to possession of the apartment. After inquiry into all relevant facts, the Court agreed with respondent and restored him to the apartment conditioned upon him paying reasonable attorney and marshal fees. Respondent was to pay the fees by May 22, 2007.

Respondent timely tendered the fees but despite his compliance with the Court's order, he was unable to re-occupy the apartment. Respondent filed an OSC dated June 7, 2007 in the HP Part, seeking to compel petitioner to complete repairs in the apartment that would permit him to move back in.

On June 15, 2007, the return date of the OSC, petitioner argued that he should not be compelled to do repairs without some guarantee that respondent would be forced to pay for them. Petitioner estimated the repairs would cost $20,400 and sought a 1/40th increase on the basis of this number. As respondent lives on a fixed income, it is self evident respondent is unable to consent to such an increase.

It is important to note that subsequent to the eviction, contractors began renovating the premises, and these alleged renovations were undertaken in good faith. Petitioner claims that by the time the Court ordered respondent restored to the premises, the renovations were well under way as the contractors had dismantled and had begun remodeling the apartment. This demolition work began no more than two hours after the May 11th eviction.

In reality, in the three and one-half hours between respondent's eviction and his limited access to the apartment, petitioner gained access to the apartment, committed the acts detailed above and bent the faucet on the sink backwards to prevent the flow of water (See: Exhibit A of respondent's opposition showing pictures of the apartment). What petitioner is calling "renovation" and "remodeling" in his cross-motion was nothing less than the destruction of essential facilities in the apartment possibly calculated to render the apartment uninhabitable in the event that respondent was restored to possession. On July 16, 2007 the parties entered into an agreement settling the HP proceeding commenced on June 7th. The agreement obligated petitioner to makeall necessary repairs that would render the apartment habitable and free from any violations. As a result of the complete lack of ...


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