MATTER OF LAFAYETTE BOYNTON HSG. CORP. v. Pickett, 135 AD 3d 518 - NY: Appellate Div., 1st Dept. 2016:
Saxe, J., concurs in a memorandum as follows:
Previous case law supports and justifies the majority's affirmance of
the order on appeal, which restored the evicted tenant to possession
upon full payment of all overdue arrears. However, I write separately to
express two concerns. First, the way in which the case law has
developed with regard to vacating warrants of eviction after those
warrants have already been executed, prompts me to question the
underpinnings and validity of recent case law on the subject. My other
concern focuses on how the law, unfairly, forces landlords to serve as
de facto no-interest lenders to low-income tenants who rely on the slow
process of obtaining grants and supplemental payments to help cover
their rent.
The tenant in this case, who is disabled, has resided at the subject
apartment for more than 30 years, and the source of his income is
Supplemental Security Income from the Social Security Administration.
The landlord commenced this nonpayment proceeding on October 5, 2011,
and the proceeding was not ultimately resolved until two years later,
after the tenant had already been evicted, when the tenant's rental arrears were finally paid up in October 2013 and the tenant restored to possession.
The litigation process during much of those two years was
typical. Although nonpayment proceedings are contemplated as summary proceedings, created "to afford landlords an
expeditious
means of recovering real property from tenants who refused to remit
rent after a demand" (Daniel Finkelstein & Lucas A. Ferrara,
Landlord and Tenant Practice in New York § 14.1 at 132 [West's NY Prac
Series, vol G, 2014] [emphasis added]), in cases such as this,
litigation can extend for months. If the tenant agrees that rent arrears
are due and owing, and that he or she lacks a viable defense to the
nonpayment proceeding, that tenant often enters into a stipulation
acknowledging the rent arrears and creating a payment schedule (
id.
at § 14:418 at 331), as well as "provid[ing] for the entry of a money
judgment and a final judgment of possession in the landlord's favor,
with the issuance of a warrant of eviction `forthwith,' and its
execution stayed pending the tenant's compliance with the agreement's
terms" (
id. at § 14:425 at 333). Under the stipulation, if the
tenant fails to make the agreed-on payments, the money judgment and
judgment of possession will become enforceable based on the expiration
of the stay, and the warrant of eviction may be turned over to the City
Marshall to be executed after 72 hours' notice is given to the tenant (
id. at 14:471 at 358-359;
see RPAPL 749).
What often happens thereafter is that the tenant finds that the
agreed-upon schedule did not provide sufficient time to obtain the
necessary funds. When elderly or disabled low-income tenants have
difficulty covering their expenses with their income, they may seek to
obtain charitable grants, supplemental payments by the New York State
Department of Social Services (DSS), "one shot deals"
[*]
from the New York City Human Resources Administration (HRA) and the
like. However, the process by which such funds are applied for and
obtained is sometimes slow and laborious. The tenant therefore applies
to the court for an extension of the stay.
Here, the tenant entered into a stipulation of settlement agreeing to
the issuance of a warrant of eviction, to be stayed for a period of
time to allow him time to pay the rent arrears, which were initially
$5,250.60. Thereafter the tenant brought seven motions seeking stays of
the warrant of eviction and additional time to pay the ever-accumulating
arrears. The tenant was repeatedly granted extensions and stays of
eviction on condition that he pay the arrears by a new set date, each extension
based on showings that charitable grants, payments by the DSS or "one
shot deals" from the HRA had been approved for payment. However, by the
time those promised payments were eventually made, new arrears had
accrued, so the landlord was still not made whole by those eventual
payments, and the cycle of extensions and only partial payments
continued.
The aspect of this case that concerns me is what occurred after the
court denied any further stays on August 15, 2013 and allowed execution
of the warrant of eviction, explaining that the tenant had "utterly
failed to show any ability to pay the longstanding arrears which now
amount to $12,370.00" and "merely rehashes all arguments and provides
stale evidence of payments long credited." The eviction took place on
September 13, 2013. Then, although the court denied the tenant's first
two post-eviction motions to stay the landlord from re-letting the
apartment, it later granted yet another post-eviction motion by the
tenant to stay the landlord from re-letting, upon the tenant's tender of
$7,539 in open court. The tenant was restored to possession upon his
tender of an additional $7,515.21 before October 23, 2013, which
constituted a final payment of all sums then owed to the landlord.
Appellate Term affirmed, holding that the Civil Court had not abused
its discretion in vacating the warrant of eviction and conditionally
restoring the tenant to possession of the apartment upon his payment of
all rent arrears, eviction costs, and attorneys' fees then due.
Appellate Term observed that the record established good cause for the
relief, because the tenant had tendered a substantial portion of the
rent arrears and demonstrated that various agencies had committed funds.
Appellate Term also remarked that the landlord had contributed to some
of the delays in resolving the rent claim, by losing the checks tendered
by DSS on tenant's behalf, which then had to be reissued. Lastly,
Appellate Term explained that the protracted nature of the proceedings
did not warrant forfeiture of the tenancy, given tenant's good faith and
ultimately successful efforts to make landlord whole by securing
emergency rental assistance and tendering the rent arrears and
landlord's litigation costs, including attorneys' fees. This Court
affirms.
In its appeal to this Court, the landlord correctly points out that
while RPAPL 749 (3) authorizes the vacatur of warrants of eviction "for
good cause shown"
before the warrant is executed, the statute does not authorize the
post eviction vacatur of warrants of eviction that have already been
522*522
executed. However, while RPAPL 749 (3) does not provide for any
post-eviction remedies for an eviction, the Court of Appeals has
affirmatively stated that courts may grant such relief, even after a
warrant of eviction has been executed. In
Matter of Brusco v Braun (84 NY2d 674 [1994]),
it said, "the Civil Court may, in appropriate circumstances, vacate the
warrant of eviction and restore the tenant to possession even after the
warrant has been executed" (
id. at 682). So, while the statute
may not give the Civil Court the authority to vacate an already-executed
warrant of eviction, case law provides that authority.
However,
Brusco did not address what "appropriate circumstances" might entail. Notably,
Brusco
did not involve an evicted tenant restored to possession. The
decision's acknowledgment that a tenant may be restored to possession
after a warrant of eviction has been executed was simply one item in a
list of ways that the law protects tenants against unjust or erroneous
eviction. Its sole citation in support of that proposition was
Solack Estates v Goodman (78 AD2d 512 [1st Dept 1980]). In
Solack Estates,
an elderly tenant was evicted pursuant to a default judgment obtained
while she was on vacation in Florida; she was restored to possession
when it was established that she had timely sent her rent checks, albeit
to an outdated address. That decision concluded that "[u]nder the
circumstances, the Civil Court was correct in vacating the warrant of
eviction and restoring the tenant to her apartment" (
id. at 513). More recently, this Court echoed
Brusco's pronouncement of the "appropriate circumstances" test, in a case that did not involve a post-eviction situation (
see Harvey 1390 LLC v Bodenheim, 96 AD3d 664, 665 [1st Dept 2012]). The legal standard these cases provide regarding whether to restore a tenant to possession
after an eviction is that of "appropriate circumstances."
Because the statutory standard of proof to vacate a warrant of eviction
before
the warrant is executed is "for good cause shown" (RPAPL 749 [3]), one
might expect that a more exacting standard should be employed where a
tenant seeks to be restored to possession
after eviction, since
the landlord-tenant relationship had already been terminated at that
point, eliminating the tenant's rights to reside in the leased premises.
Yet, a number of cases of this Court have imported the "good cause"
standard that RPAPL 749 (3) provides for vacating unexecuted warrants of
eviction, and have applied it to already executed warrants of eviction
so as to restore tenants to possession; some cases have also adopted an
"abuse of discretion" standard of review of such trial court decisions.
For example, in
102-116 Eighth Ave. Assoc. v Oyola (299 AD2d 296 [1st Dept 2002]),
we affirmed an order restoring a tenant to possession upon payment of
all rent arrears. Without describing the facts of the case, we said that
"[u]nder the particular facts and circumstances ... Civil Court
properly exercised its discretion and for good cause vacated the warrant
of eviction so as to restore respondent to possession of the subject
premises" (
id. at 296).
Similarly, in
Parkchester Apts. Co. v Scott (271 AD2d 273 [1st Dept 2000]),
this Court upheld the grant of a tenant's post-eviction application to
be restored to possession, observing that the tenant's motion had been
accompanied by proof of payment of the balance due on the judgment
against him, plus additional accrued rent. In the remaining brief
discussion, the decision imports to this post-eviction situation the
"good cause" standard of RPAPL 749 (3): "good cause to support the Civil
Court's vacatur of the warrant of eviction was demonstrated through
proof from the 63-year-old tenant that, notwithstanding recent illness,
he made appreciable payments towards the judgment and, while a tenant
for 20 years, had apparently had no prior delinquency record and,
prospectively, had arranged for automatic withdrawal of monthly rent
from his bank account" (
id. at 273-274).
To sum up: the initial case law that allowed already-evicted tenants
to be restored to their tenancy applied a standard of "appropriate
circumstances," while subsequent cases permit a tenant's restoration
after eviction for "good cause shown," which standard is satisfied by
good faith and eventually successful efforts by a long-term tenant to
satisfy his or her rent obligation, despite hardships. In addition, some
recent cases suggest that on appeal the trial court's decision must be
given the substantial latitude of an abuse of discretion standard of
review.
Appellate Term here, like this Court in
102-116 Eighth Ave. Assoc. v Oyola (299 AD2d at 296) and like Appellate Term in
Three In One Equities LLC v Santos (43 Misc 3d 142[A], 2014 NY Slip Op 50847[u] [App Term, 1st Dept 2014]), seems to have cited all of the foregoing standards.
I submit that we should reconsider the standard of proof necessary to vacate an already-executed warrant of eviction.
When the posture of the litigation is that a warrant of eviction was
issued based on conceded rent arrears, but was stayed to give the tenant
time to obtain the overdue funds from any available sources, the "good
cause" standard of RPAPL 749 (3) makes perfect sense. This Court has
observed, "[t]he policies
524*524
underlying the rent stabilization laws are generally better served by
holding out to a tenant the opportunity usually afforded in a nonpayment
proceeding to cure the breach of his rent obligations" (
2246 Holding Corp. v Nolasco, 52 AD3d 377, 378 [1st Dept 2008]). Focusing on the facts of
2246 Holding,
this Court explained that "[r]espondent's multiple defaults were
largely the result of a delay in payment by HRA. Petitioner was aware,
at the time of the settlement, that a portion of the amount due was to
be paid by HRA. An indigent tenant who resides in an apartment for many
years should not be evicted where she has made diligent efforts to
comply with the terms of the settlement agreement, only to be stymied by
events beyond her control" (
52 AD3d at 378).
Facts such as these constitute sufficient and appropriate grounds for
staying and vacating warrants of eviction that have not yet been
executed. But since a completed eviction ordinarily terminates the
tenant's interest in the property and entitles the landlord to treat the
previously-rented premises as its own, a court should not undo that
eviction, unless the tenant makes a showing of something more than the
type of "good cause" that justifies vacating an unexecuted warrant.
For an example of the type of greater showing that should be required, we must return to the case
Brusco relied on for the proposition that an executed warrant of eviction may be vacated,
Solack Estates. The showing in
Solack Estates
justified reversing an already-executed warrant of eviction and
restoring the evicted tenant to possession, because the evicted tenant
there showed that the basis for the landlord's underlying
claim—nonpayment of rent—was incorrect (although neither fraudulent nor
based on perjury) (
78 AD2d at 513). Instead, her rent payments had been sent, as she had done previously, to an address that had been superseded (
id.).
The finding of an error in the allegations supporting the issuance of a
warrant of eviction certainly justified vacating that warrant and
restoring the tenant to possession.
In contrast, a showing that after he was evicted, the evicted tenant
has, at long last, succeeded in pulling together funds from enough
sources to pay off arrears that accumulated over a two-year period, does
nothing to show that the factual premise for the eviction was
incorrect. It comports with recent case law, but it should not be
enough.
I submit that to undo an eviction, the tenant should be required to
satisfy more stringent criteria than the type of "good cause" that
justifies vacating an unexecuted warrant. Rather, the tenant's showing
should be of the type of circumstances contemplated in
Brusco and
Solack Estates;
that is, that incorrect assumptions or findings were made in issuing
the warrant of eviction that undermines the basis for its issuance in
the first place. And, the appellate standard of review of such an order
should be stricter than the broad abuse of discretion standard.
Finally, I feel compelled to recognize the involuntary and
unacknowledged burden cases such as this place on landlords. While the
tenant's rent arrears are eventually paid, and the landlord reimbursed
for its legal costs for the underlying proceeding, the landlord is not
made whole. Since it has no choice but to wait however long it takes for
the rent to be fully paid—here, the landlord waited two years—without
any interest being paid on the unpaid rent, it is in effect forced to
underwrite the tenancy.
Important public policy considerations necessitate ensuring that
elderly and disabled low-income tenants are not made homeless because of
the normal delays in the issuance of funds from social service agencies
that these tenants regularly rely on to help make up shortfalls in
their ability to keep up with their monthly rent. It is shameful,
however, that we are relying on the private property owners who happen
to rent apartments to such tenants, requiring them to cover the
shortfall for months, or even years, rather than, as a society, making
sure that elderly and disabled low-income tenants have access to the
necessary funds
in a timely manner so they can stay current on their rent.
[*]
The New York City Human Resources Administration offers a "One Shot
Deal" emergency assistance program to help people who "cannot meet an
expense due to an unexpected situation or event" (see One Shot
Deal Short Term Emergency Assistance,
http://www1.nyc.gov/nyc-resources/service/1205/one-shot-deal-short-term-emergency-assistance
[accessed Dec. 11, 2015]).
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