25-35 Tennis Associates v. Humpherys
2/21/96 N.Y.L.J. 28, (col. 6) (Civ. Ct. N.Y. Cty.)
We represented: Petitioner
Lau, J.
DECISION and ORDER Respondent, Marie Charles Humpherys, moves to dismiss this nonpayment summary proceeding on the grounds that she has paid the rent for the apartment through April 1997 and moves further to establish the rent. Petitioner cross-moves to strike the fourth, fifth, seventh, ninth, tenth and eleventh paragraphs of respondent's answer and moves for sanctions pursuant to 22 NYCRR § 130.
Procedural History of This Proceeding
Petitioner commenced this nonpayment summary proceeding against respondent for rent owing from September 1995. Respondent submitted an answer, which she filed on December 19, 1995, in which she alleged in her fourth, fifth, seventh, ninth, tenth and eleventh paragraphs that she had paid $28,000 to petitioner on or about April 20, 1994, for rents becoming due from April 1994 through April 1997. The proceeding was made returnable on January 5, 1996. Simultaneous with the filing of her answer, respondent made the present motion, returnable on January 23, 1996. On January 5, 1996, when the case appeared on the Part 18 trial calendar, it was referred to this court. Respondent appeared by counsel. Counsel requested an adjournment to the date of the hearing of the motion, January 23, 1996. Petitioner's counsel did not oppose the request for an adjournment but remarked that he had spoken with respondent the day before and had urged her to withdraw her motion, adding that otherwise he would seek sanctions. Respondent's attorney advised the court that respondent did not wish to withdraw her motion, but that counsel would relay to respondent the further urgings of petitioner's counsel that she withdraw the motion. The court adjourned the trial to January 23, 1996, the date of the hearing of the motion. Petitioner thereupon served respondent's attorney with the cross motion to strike the above enumerated paragraphs in respondent's answer and for sanctions.
Most Recent Prior Proceeding
The most recent prior nonpayment summary proceeding between the parties (Frontenac Associates v. Charles a/k/a Humpherys, L&T Index No. 94843/93) was commenced by notice of petition and petition dated September 21, 1993. In that proceeding, respondent filed an answer interposing six affirmative defenses. Respondent then moved for a stay of the proceeding pending the outcome of a bankruptcy litigation. The court denied respondent's motion to stay the proceeding. Petitioner then moved to substitute 25-35 Tennis Associates, L.P. as the proper party petitioner and to strike certain affirmative defenses. The court granted petitioner's motion, allowing substitution and striking some of respondent's affirmative defenses.
The matter was tried on December 9, 1993, and petitioner was awarded a judgment in the amount of $28,745.52 representing all rents owing from May 1, 1991 through December 31, 1993, calculated at $946.10 per month. The court awarded respondent an abatement of 2%. In its decision and order, dated January 31, 1994, the court stated:
Respondent Marie Charles Humpherys is an attorney and represented herself and her husband. She was her only witness and testified about two affirmative defenses, raised in respondent's answer, as to why rent had not been paid (and breach of the warranty of habitability). No testimony or other evidence was offered as to two other affirmative defenses raised in respondent's answer, viz: laches and harassment. Since no testimony or other evidence was offered as to the defenses of laches and harassment, this court considers them abandoned by respondents at trial and will not further address them.
With regard to respondent's defense of tender raised at trial, the court stated:
The first affirmative defense to which Ms. Humpherys testified was the allegation that rent had been offered and refused by petitioner's predecessor. According to Ms. Humpherys, she met with petitioner's predecessor on March 30, 1993 and offered $10,000 in certified checks as satisfaction for payment of all rent owing. Petitioner's predecessor refused to accept such offer. This Court is of the opinion that petitioner's predecessor was not obligated to accept less than the full amount of rent due for the apartment and respondents have not sustained by any preponderance of the evidence their defense of offer and refusal.
After the court entered judgment, respondent moved pursuant to CPLR 4404 and 5015(a)(2) and (a)(3) for a new trial on the grounds that certain evidence had not been available at the time of the trial. The court denied the motion.
Thereafter, the Appellate Term summarily denied respondent's motion for a stay of payment of the judgment pending appeal (New York Law Journal, March 29, 1994, p. 23, c. 1).
The April 20, 1994 Stipulation
The parties subsequently appeared, unexpectedly, in court on April 20, 1994, with a stipulation (the "Stipulation"), which they asked to have "so ordered" by this court. The court questioned the parties regarding the Stipulation, noted thereon the tape and counter numbers and also noted thereon "Read and Allocated entire stipulation comprising 8 pages plus 2 exhibit pages."
The parties who appeared before the court on April 20, 1994, included Sanford Nager, a general partner of 25-35 Tennis Associates, L.P., Marie M. Charles and Gregg Humpherys. The Stipulation was typewritten but was amended in open court, in certain parts, which the parties initialed. The Stipulation amended the terms of the January 31, 1994 judgment to include all rents owings through April 30, 1994 (that is $28,745.52 plus 4 additional months at $946.10 per month, or $3,784.40, for a total of $32,529.92). Petitioner agreed to accept $26,500 in full settlement and for additional consideration which included respondent's withdraw of certain proceedings pending before the Division of Housing and Community Renewal ("DHCR"), a paint credit, execution of renewal leases, an agreement as to a course of conduct in the event respondent had any repair complaints, and respondent's withdrawal of her appeal from January 31, 1994 judgment. The two exhibits attached were a renewal lease, dated April 20, 1994, signed by the parties on that date and a letter, dated April 20, 1994, from respondents to the DHCR withdrawing 3 pending proceedings. Further, the Stipulation re-ratified a stipulation dated November 9, 1990 (the "1990 Stipulation"). The 1990 Stipulation comprised 13 pages and exhibit pages and required payment by respondent, after a credit for respondent's withdrawal of 13 proceedings then pending before the DHCR.
The Court notes that the 1990 Stipulation settled a long-litigated matter between the parties along the same lines as the Stipulation. In the 1990 Stipulation, respondent agreed that she owed rent from May 1989 through the end of November 1990. She was given certain credits and, as in the Stipulation, she agreed to withdraw DHCR proceedings and settle or withdraw certain civil cases pending, she was allowed use of a washing machine and to have occupants in her apartment, and there was an agreement on a course of conduct with regard to repair complaints. The 1990 Stipulation was "so ordered" by Housing Court Judge Fern Fisher-Brandveen.
Respondent, an attorney who is duly licensed and authorized to practice before the Courts of the State of New York, represented herself in the 1989 nonpayment summary proceeding prior and negotiated the 1990 Stipulation. She also represented herself and her husband in the intervening summary proceedings to the most recent 1993 nonpayment summary proceeding and she negotiated the Stipulation. The apartment which she occupies has 7 rooms, including a dining room, 3 full bathrooms, and a kitchen.
Oral Argument on Respondent's Motion to Dismiss and Petitioner's Cross-Motion for Sanctions
On January 23, 1996, the court heard argument on the motions before it (Tape K26440, Counter 1953 through 3050, 3151 through 3677). Respondent did not interpose any written response to petitioner's cross motion for sanctions, saying "Unfortunately, your honor, I've been busy and have not had a chance to go to the library."
Respondent argued that because a summary proceeding does not entitle a tenant to full rights of due process, but is more like a proceeding in a "presentment court," the courts consistently have established a de facto statute of limitations of six months on rent collectable by landlords. Thus, she stated that if a landlord cannot cash a check that is more than six months old, a landlord similarly should be barred by a de facto statute of limitations from collecting rent overdue more than six months. She stated that case law provides two prongs in any analysis of stale rent: first, a landlord must establish his claim to the rent and, second, the landlord must provide a reasonable excuse to why he has not diligently exercised his rights previously to collect the rent. Respondent argued that, because petitioner's witness at the trial of the prior proceeding did not testify to these matters, the judgment never should have issued. Morever, she insisted "since the court had not given a detailed decision" addressing the particulars of her claims of stale rent in the prior proceeding, the court had no basis for rendering its judgment.
Respondent mentioned Harlem Restoration Project v. Alexander, N.Y.L.J. July 5, 1995, p. 27, c 2 (Civ. Ct. N.Y. Co.) in support of her position. In essence, she said that upon reading that decision she "woke up" and realized that what had occurred in the prior proceeding was "ridiculous, absolutely ridiculous." Thus, she now sought this court's reconsideration of its prior judgment.
In addressing the Stipulation, respondent observed that this court had denied its signature on her orders to show cause seeking time to satisfy the judgment and that the Appellate Term had interposed a special assessment conditioning stays upon deposit of the judgment amount. Inasmuch as no court was listening to her, she determined that it would be better not to put herself in the hands of the courts and so she had no choice but to enter into the Stipulation. Finally, respondent remarked that she has argued before the Court of Appeals and the federal courts and that she did not understand why she has received no justice in the Housing Court or the Appellate Term.
Respondent's Motion to Dismiss and Petitioner's Cross-Motion to Strike
Respondent states at paragraph 3 of her affirmation that she was forced to enter into the Stipulation because of the health of her husband "wherein she paid to [petitioner] monies for rent when no such funds were due and owing to him." She alleges in paragraph 4 that an assignment of rents from petitioner's predecessor to petitioner was fraudulent and that, even if it were not fraudulent, the rent sought was stale rent and uncollectable.
Respondent makes several allegations regarding the proceeding that led to the January 31, 1994 judgment. The Stipulation settled the matters in dispute in that proceeding. If respondent now seeks to repudiate the Stipulation, however, she fails to provide any basis for such relief. Respondent argues that the rent which was the subject of the "fraudulent document" was stale rent. She never should have agreed to pay it. Respondent raised the issue of stale rent in the 1993 nonpayment proceeding but, for whatever reason, she abandoned that defense at the trial. The elements necessary to establish the equitable defense of laches that would bar a landlord from evicting a tenant in a nonpayment summary proceeding are:
(1) conduct on defendant's part for which the complainant seeks a remedy; (2) delay in asserting the complainant's right although having knowledge of defendant's conduct and having been afforded an opportunity to institute suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event that relief is not accorded to complainant or that the suit is not barred. (Marriott v. Shaw, 151 Misc.2d 938, 574 N.Y.S.2d 477 (Civ. Ct., Kings Co. 1991).)
It was respondent's burden previously to establish that the demand for rent was stale and that laches applied. (CHLC Corp. v. Gottlieb, N.Y.L.J., October 19, 1988, p.28, c.4 (A.T. 2nd & 11th Dist.).
Respondent's reliance on Harlem Restoration is misplaced. The court in Harlem Restoration granted the tenant's motion to dismiss, finding that the tenant had properly raised, and the landlord had not rebutted to the court's satisfaction, the affirmative defense of laches. Respondent here did not assert that affirmative defense at trial. The failure to raise an affirmative defense is a waiver of such defense (Munson v. New York Seed Improvement Coop Inc., 64 N.Y. 2d 958 [1985]) and so there was nothing for petitioner to rebut. See Richardson on Evidence, § 96. To put it in respondent's terms, there was nothing for respondent to wake up to: she had abandoned the issue of laches at the trial. Nor is there a de facto six months statute of limitations. Rather, each case is sui generis. (CHLC, supra. In any case, the Stipulation confirmed the judgment, on consent, and was not appealable. (Roberson v. Morris, N.Y.L.J., May 18, 1994, p. 23, c.3 (A.T. 2nd & 11th Dist.).
Accordingly, the court finds respondent's present claim regarding those rents covered by the January 31, 1994 judgment and the Stipulation is devoid of merit.1 Respondent perhaps could persuade this court that her payments of monies on April 20, 1994, were other than in satisfaction of the judgment and the Stipulation would be by persuading this court that the Stipulation should be set aside. Notably, respondent does not make such an argument. Nevertheless, the court notes that grounds do not exist to set aside the Stipulation.
It is settled that stipulation of settlement are judicially favored (Hallock v. State of New York, 64 N.Y.2d 224 (1984)) and will be set aside only upon a showing of good cause, such as fraud, collusion, mistake, accident or some other ground of similar nature (Matter of Frutiger, 29 N.Y.2d 36 (1971)). Respondent has offered no reason for this court to set aside the Stipulation. There is nothing to suggest that respondent was tricked or coerced into signing the Stipulation. Rather, as in the past, in negotiating the Stipulation, respondent was able to negotiate paying less than she otherwise would have had to pay in exchange for withdrawal of civil cases and pending DHCR proceedings and a course of conduct for repair complaints. Respondent faced imminent eviction; respondent was able to obtain an agreement to pay petitioner less than the full amount owing. There was nothing coercive or fraudulent about the Stipulation for respondent; in fact, it was for her a beneficial outcome in what must have been for petitioner difficult negotiations. Respondent received the benefit of the Stipulation: she was not evicted from the apartment. A mere change of heart or reconsideration is no basis to set aside a stipulation. (Hew Burg Realty Corp. v. Mieles, N.Y.L.J., May 29, 1991, p. 29, c. 6 (A.T. 1st Dep't.).) Further, the interests of finality and orderly dispute resolution (Riverdrive Co. v. Verburg, N.Y.L.J. October 18, 1993, p. 34, c. 1 (A.T. 1st Dep't.) are not advanced by setting aside a stipulation entered into so long ago and which respondent provides no legal cause to vacate. the Stipulation remains in full force and effect.
Respondent's motion is denied in its entirety and petitioner's cross motion to strike the specified paragraphs of respondent's answer is granted. The monies paid under the Stipulation represented payment of past due arrears and were not, as respondent now claims, payment of future rents.
Petitioner's Cross-Motion for Sanctions
Respondent is not an uneducated tenant struggling pro se to resist the inevitable force of the law. On the contrary, respondent is an attorney and an officer of the court. Theories that might be unfortunate, harebrained as they are, coming from a litigant unfamiliar with the law take on a different character when offered by an attorney. That character is unacceptable. Since 1989, respondent has engaged in a course of conduct the effect of which has been large arrears, delaying motions and, at the last moment, compromise and settlement for the large arrears. Her motions have been tactics for delay. Her present motion is the latest example.
It is beyond comprehension how respondent could now claim, as she does, that the Stipulation involved payment of future rents. The Stipulation was clear. So too was this court's discussion of it, word-by-word, with the parties.
The Housing Courts have the power to impose sanctions. (Babigan v. Wachtler, 69 N.Y.2d 1912 (1987).) Respondent was given every opportunity to be heard on this issue. She chose to put in no written papers in opposition to petitioner's cross motion. The court finds that the respondent should be sanctioned pursuant to 22 NYCRR § 130.1.
The court now considers the amount of sanction which should be imposed on respondent. Respondent is an attorney. This is the second time in as many summary proceedings before this court that respondent has frivolously raised the defense of payment. Respondent argued in 1993 that the $10,000.00 in certified checks which she tendered to petitioner's predecessor, which petitioner's predecessor refused to accept as satisfaction of all rent owing, was an offer of payment amounting to a defense. Now, she argues that the payment she made under the Stipulation was payment of future rent, contrary to the clear terms of the documents.
Respondent seeks to reopen prior proceedings, to reargue lost causes, to attack final judgments. In her argument to the court, respondent stated: "I have rights as an attorney, I have been trained in a certain way to analyze a certain way. I don't think the court used its full analysis of the issues. Period." This notwithstanding that the Stipulation was made subsequent to the court's decision and order and notwithstanding that respondent waited until she had been sued again, for newly accrued arrears, to make this argument.
Respondent has shown her mastery of the delaying tactic. She has benefited from her skill. She must be discouraged. The court finds respondent's motion is so blatantly dilatory and frivolous that respondent should be ordered to pay, and hereby is ordered to pay, the sum of $300.00, payable to the Client Security Fund on or before April 31, 1996. Were respondent not a solo practitioner, the court would impose a greater sanction. The court hopes that this sanction is sufficient to restrain respondent from engaging in further frivolous conduct (see Jones v. Camar Realty Corp., 167 A.D.2d 285 [1990]).
This constitutes the decision and order of the court.
Footnote
1. The court notes that petitioner obtained the January 31, 1994 judgment, which allowed it to evict respondents, in order to obtain the rent which then totaled more than $28,000.00. It appears that petitioner was willing to take less than the judgment amount in order to get paid and to end the litigation. This is not the type of conduct which can support laches.