Cite as: Brodcom West Development Co. v. Perez, L & T 85818/08, NYLJ 1202577874208, at *1 (Civ., NY, Decided March 18, 2010)

Justice Sabrina B. Kraus

Decided: March 18, 2010

ATTORNEYS

Guardian Ad Litem for Respondent: New York, NY.

Guardian Ad Litem for Undertenant: Maxine Brannon, Jamaica, NY.

Undertenant: Victor Guzman, New York NY.

 

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This summary holdover proceeding was commenced by BRODCOM WEST DEVELOPMENT CO. (Petitioner) to recover possession of Apartment P-5L at 75 West End Avenue (Subject Premises). Petitioner asserts that JUANA PEREZ (Respondent), the rent-stabilized tenant of record has created a nuisance in the Subject Premises, based on the behavior of her son VICTOR GUZMAN (Undertenant), who resides in the Subject Premises with her.

PROCEDURAL HISTORYRespondent is seventy-two years old, has lived in the Subject Premises since 2001, and is a recipient of subsidized housing in the Subject Premises, through the Low Income Housing Tax Credit Program for the Subject Building. The Subject

 

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Premises is a one bedroom apartment located in a relatively new luxury building. Respondent's share of rent for the Subject Premises is $159.00 per month. Respondent is originally from the Dominican Republic, and has limited formal education. Respondent does not speak English, and has communicated through interpreters throughout the proceeding. On or about 2006, Undertenant, Respondent's fifty-one year old son, came to live with Respondent. Petitioner asserts Undertenant started to engage in behavior which constitutes a nuisance.

The proceeding was commenced by issuance of a notice of termination dated July 29, 2008, terminating Respondent's tenancy as of August 12, 2008. The Notice of Petition and Petition issued on or about September 12, 2008, and the proceeding was originally returnable on October 6, 2008.

The notice of termination asserted that the Undertenant has "engaged in a virtual reign of terror" directed at the Petitioner's employees. The predicate notice further asserted that Undertenant did this by making repeated frivolous complaints, about nonexistent conditions in the Subject Premises, and subjecting the employees to threats and verbal abuse. The notice detailed specific incidents, throughout 2007 and 2008. Petitioner asserted these incidents resulted in the involvement of the New York City Police Department, on more than one occasion.

The notice asserts Undertenant repeatedly claimed that the Subject Premises was plagued by "toxic fumes" or bad odors. Undertenant's complaints were often made to personnel at off hours, for example at 2:05 am on June 24, 2008, or at 4:10 am on June 16, 2008. The notice further asserts that each complaint was investigated by Petitioner's employees and determined to be unfounded.

Both the Respondent and Undertenant suffer from mental illness, and on April 15, 2009, Department of Social Services (DSS) moved for the appointment of a Guardian Ad Litem (GAL) for each of them. The motions were granted by the court, and pursuant to orders dated April 21, 2009, Carlosa Clements was appointed GAL for Respondent and Maxine Brannon was appointed GAL for the Undertenant. All parties consented to the appointment of the GALs.

 

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Annexed to the DSS' moving papers was a report prepared by Dr. Charles Hayes, a psychiatrist who met with the parties on March 4, 2009, at the Subject Premises. Regarding Respondent, Dr. Hayes details the following information. Respondent believed only Undertenant was being evicted, and did not appear to understand that the pending proceeding sought her eviction as well. When it was explained to Respondent that she was also subject to the eviction proceeding, Dr. Hayes noted "it is not clear how deeply she believed this." Respondent stated that she had a Section 8 voucher, and that both she and Undertenant were attempting to get a larger apartment. Dr. Hayes asked Respondent whether she would consider staying in the Subject Premises, if Undertenant were to move elsewhere. Dr. Hayes noted that "(a)lthough she voiced great concern about what would happen to him and where he might live, she did not say that she would decline such an offer, implicit with the idea that he would have somewhere to live."

Dr. Hayes' report concluded with the following Formulation :

This 72 year old female has lived in a Section 8 apt in a luxury, high rise building for a number of years. Her son, Victor Guzman moved in with her 4 years ago when his wife [who lives in another apt in the same building] divorced him. He became very depressed and about two years ago, he and client, began to experience a number of somatic symptoms which they believed were coming from the apt and adversely affecting their health. His verbally aggressive behavior toward management, and the fact that she was the legal tenant, led to a holdover eviction which is presently in housing court. Client has along psych history with what sounds like recurrent episodes of major depression with psychotic features, although she has not been in treatment for a number of years. Just how strongly she embraced the somatic delusions of her son remains unclear. Her past history is such, however, that one must be very cautious in her care and further psych OP is advised. She has a very desirable apt and it would be a great shame if she were to lose it if there were any way that this could be prevented (3/4/09 Psychiatric Evaluation Report annexed to 4/15/09 motion by DSS for appointment of a GAL for Respondent).

Dr. Hayes also filed a report regarding the Undertenant, wherein he noted:

 

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(Undertenant) moved in with his mother in 2005 and, according to people in the building, his personality began to change. It is reported that he became very argumentative, difficult and started complaining about many different aspects of the apt he and his mother shared. According to the client, during the winter of 2007, he noted [and his mother apparently noted as well] an odor in the apt which caused him [them] to sometimes have to wear a cloth mask. He said it caused pain in his bones, dizziness, forgetfulness and…dental pain. He also thought that the floors were sticky and had some sort of chemical on them. He had someone from the city come by to inspect the apt, but they reportedly did not find any abnormalities. He also went for various medical checkups and again was not able to be diagnosed with anything specific related to the symptoms he was having. (3/4/09 Psychiatric Evaluation Report annexed to 4/15/09 motion by DSS for appointment of a GAL for Undertenant).

On September 17, 2009, the proceeding was assigned to Part S for trial. Both GALs, Respondent, Undertenant, Petitioner's counsel and agent were present. Settlement discussions with the Court commenced in the morning, and continued in the afternoon. The proceeding was settled pursuant to two separately executed and allocuted stipulations, late afternoon the same day.

During the course of the settlement discussions, the GALs advised the Court that they felt that there was a conflict of interest between their wards, and asserted that Undertenant was inappropriately attempting to intimidate Respondent, and unduly influence her not to accept Petitioner's proposed settlement offer. Based on the foregoing, the Court granted their request to accept separate stipulations of settlement, from Undertenant and Respondent, and to conduct their allocutions separately.

Pursuant to the stipulation between Respondent and Petitioner (Perez Stipulation), Respondent consented to a judgment of possession, and issuance of a warrant was stayed until March 30, 2010 for Undertenant to vacate the Subject Premises. After Undertenant vacated, Respondent was to permanently exclude him from the Subject Premises, or be subject to a subsequent holdover proceeding. If Undertenant failed to vacate by March 30, the warrant of eviction could issue, upon filing an affidavit of noncompliance and notification to the GALs.

 

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The Perez Stipulation was translated for Respondent prior to the allocution. Both Carlosa Clements and Respondent were allocuted by the Court. During the course of the allocution, Respondent asked if the Perez Stipulation represented the Court's decision. The Court explained that while it accepted the Ms. Clement's position that the Stipulation was in Respondent's best interests, and preferable to the possible outcome of a trial, it was an agreement between the parties, and not the decision of the Court.1

Respondent stated that she had a Section 8 voucher that covered both her and Undertenant, and that their intention was to move together to live in a two bedroom apartment. The Court confirmed that Respondent could always choose to move out and surrender, but would not be required to do so, as long as Undertenant vacated by March 30, 2010. Respondent stated that she had no further questions, and that she consented to the terms of the stipulation. Respondent clearly indicated to the Court during the allocution, that she understood the terms of the Perez Stipulation, and that she consented to it, not because it was the result that she desired, but because she agreed with Ms. Clement's determination that it was the best option under the circumstances.

Ms. Clements represented to the Court that she had discussed the Perez Stipulation at length with the Respondent, and that she was satisfied that Respondent understood and agreed with the terms. Both GALs had represented to the Court, that having investigated the underlying allegations of the petition, they felt it likely that Petitioner would be able to prevail on its claim at trial. This was a significant consideration for in Ms. Clements in recommending that the Court accept the Perez Stipulation.

Despite Respondent's statements agreeing to the terms of the Perez Stipulation on the record, Respondent was reluctant to sign the Perez Stipulation. The Court did not require Respondent to sign it, to establish her consent. Petitioner's counsel nearly withdrew the offer, based on Respondent's failure to sign the stipulation, relenting only on reliance upon the Court's ruling that the Respondent's signature was not a necessity, in view of her consent on the record and the GAL's signature.

The Perez Stipulation was thus signed by Ms. Clements, but not by Respondent.

Next, the Court conducted the allocution of Undertenant's stipulation (Guzman Stipulation). Ms. Brannon indicated that she had read the Guzman Stipulation, understood it

 

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and found that it was in the best interests of Undertenant to go forward with the Guzman Stipulation, rather than proceed to trial. Undertenant addressed the Court and clearly stated he did not consent to the Guzman Stipulation, and that Ms. Brannon had executed the Guzman Stipulation over his objection. Ms. Brannon expressed to the Court that the Undertenant felt that he was a victim in this case, that Petitioner and its agents had taunted him and provoked the behavior complained of, and that he contested the allegations in the petition.

Ms. Brannon confirmed that Undertenant had a plan in place for relocation, and that he had a section 8 voucher which could be used to secure a new apartment. By gaining the maximum statutory period permissible for him to vacate, Ms. Brannon thus felt the stipulation put Undertenant in a better position then he would be if he proceeded to trial. Ms. Brannon expressed concern that Undertenant may not voluntarily comply with his obligation to vacate, and asserted that Undertenant needed additional services, which she intended to seek on his behalf. Ms. Brannon had also previously indicated that it was possible that APS would move for an Article 81 guardian to assist in Undertenant's relocation.

The Guzman Stipulation was accepted by the Court, at the conclusion of the allocution.

THE PENDING MOTION

On December 12, 2009, Undertenant moved by order to show cause for an order removing Maxine Brannon as his GAL, and vacating the Guzman Stipulation. Undertenant asserted that he had never engaged in any conduct which would be a nuisance, and that he had only made good faith complaints about foul odors in the Subject Premises.2

The motion was referred to this Court, presently sitting in Bronx County. On January 20, 2010, the Court heard oral argument. Present were Respondent, Undertenant, Petitioner's counsel, and Maxine Brannon. The Court confirmed that the basis of Undertenant's request to remove his GAL, was his assertion that Maxine Brannon breached her obligation as a GAL by recommending that the Court accept the Guzman Stipulation over his express objections, rather than proceeding to trial.

Undertenant stated that he did not consent to the Guzman Stipulation or to the requirement that he vacate the Subject Premises within six months. Undertenant asserted that Maxine Brannon "threw in the towel" by consenting to the terms of the stipulation.

 

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Undertenant stated that he had not been staying in the Subject Premises, and that he was no longer living in the Subject Premises. Undertenant stated he was no longer at the Subject Premises, because toxins inside the Subject Premises were making him and Respondent sick.

Maxine Brannon, represented to the Court that she had done everything possible on her ward's behalf in this proceeding. Ms. Brannon recounted the lengthy negotiations that took place between the parties, prior to the execution of the stipulations. Ms. Brannon stated that she and Ms. Clements both concurred that Undertenant was the sole cause of the nuisance leading to the litigation. Ms. Brannon stated that when she discussed the proposal to vacate with Undertenant, he assured her that he could easily relocate, and she obtained a period of just over the six month statutory limit for him to vacate. Ms. Brannon stated that Undertenant was in fact presently living elsewhere. Ms. Brannon asserted that she personally investigated Undertenant's allegations regarding toxins in the Subject Premises, and that they were unfounded.3 Ms. Brannon stated that she believed that she had fulfilled all her duties and obligations as GAL, and that there was no basis for her removal. Ms. Brannon believed that Undertenant should remain in his new location, and that the Guzman Stipulation should remain in full force and effect.

Petitioner's counsel stated that the proceeding had been pending a long time, and that Petitioner was only willing to agree to preserve Respondent's tenancy, at the cost of Undertenant's right to occupy. Petitioner noted that such negotiations had commenced well in advance of the proceeding being assigned to Part S for trial, and that Undertenant had always maintained that he could easily relocate. Petitioner argued the benefit of the Guzman Stipulation to Undertenant was that he was given six months to vacate, and would have received significantly less time to vacate after trial.

The Court then asked Undertenant what date he moved out of the Subject Premises. Undertenant replied, contrary to his earlier assertion, that he had not moved out of the Subject Premises, but that he was just sleeping at a friend's apartment. Undertenant stated he had started sleeping at a friend's apartment approximately two weeks earlier.

Undertenant also stated that he wanted Respondent to vacate the Subject Premises and come and stay with him, but that Respondent was refusing to do so, because she felt more comfortable remaining in the Subject Premises. Undertenant stated he was strongly against Respondent remaining in occupancy of the Subject Premises, because it was making

 

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Respondent ill.

Respondent confirmed that she was still in occupancy of the Subject Premises, and stated Undertenant was no longer sleeping in the Subject Premises, but would come to visit during the day. Respondent acknowledged that Undertenant wished her to vacate the Subject Premises and stay with him at his friend's apartment, but that she refused to do so because she felt more comfortable in her own home.

The Court then asked Respondent if she would prefer to proceed to trial and risk losing her tenancy, rather than being bound by the Perez Stipulation, which preserved her tenancy as long as she excluded Undertenant. Respondent stated she would . When the Court asked why, Respondent stated it was because she could not allow Undertenant to live alone, because of his medical condition, and that she was Undertenant's only family.

The Court reviewed with Respondent that this issue had been discussed at the allocution, Respondent had agreed with the Court's recommendation that she consent to the stipulation, because she could always choose to move into another apartment with Undertenant, if and when a new apartment, suitable for both of them was located. At this point, Respondent's answers became less coherent. Respondent replied "If this is what they believe and they want to do then let them do so." When the Court asked Respondent to explain why she now thought it would be better to proceed with a trial, Respondent replied that anywhere she went, she would still have to pay rent.

Undertenant made a final request to address the Court. Undertenant stated that he wanted to hold Petitioner and Petitioner's counsel responsible for Respondent's health. The Court reserved decision after oral argument.

QUESTION PRESENTED

Where a GAL for an undertenant consents to a stipulation with a judgment and warrant, over his objection, is the GAL subject to removal and the stipulation subject to vacatur, where the court has found that the tenant of record consented to the settlement, and both the Court and the GAL found that this was the best alternative for the parties under the circumstances?

§1201 of the CPLR provides that a person shall appear by his GAL,if he is "an adult

 

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incapable of adequately prosecuting or defending his rights." The legal standard for appointing a GAL is much lower than an Article 81 Guardian, and the corresponding powers of a GAL are much more restricted.

The duties of a GAL in housing court, prior to recommending that a Court accept a proposed stipulation of settlement, include obligations to: meet with the ward and make a home visit; determine what the ward desires as the outcome of the case; investigate and weigh all factors in the case; recommend a settlement that is in the best interests of the ward, which takes into account the ward's desires if feasible; develop a plan to assist the ward in complying with the stipulation; and take steps to follow through with the plan and assist the ward; and inform the court if the ward disagrees with the proposed settlement; and attempt to insure that the ward appears in court ( Advisory Notice: Settlement of GAL Cases, March 8, 2007, Civ. Ct. New York City; Arthur Management Co. v. Zuck 19 Misc 3d 260 [2008]).

Implicit in the Court's obligation to supervise the GAL's work is the ability and obligation to remove or replace a GAL where appropriate (NYCHA v. Maldonado NYLJ Apr 13, 2005, p19, col 3; Pomeroy v. Thompson NYLJ Sept 18, 2002, p20, col 6). The court may exercise its discretion to remove a GAL, but only after a full and complete inquiry on the record (Stahl v. Rhee 220 AD2d 39 [2nd Dept 1996]).

In determining when removal of a GAL is warranted, factors that have been considered by courts include whether the GAL has an objective understanding of the material facts of the proceeding (In re Lockwood 309 AD2d 708 [1st Dept 2003]), whether the GAL has breached an obligation to the ward (In re Huang 2003 NY Slip Op 50859[U]), and whether the Court finds the GAL has acted contrary to the best interests of the ward (Dicupe v. City of New York 124 AD2d 542 [2nd Dept 1986]). A court should exercise its discretion to remove a GAL for just cause, or where the interests of the ward will be otherwise promoted by said removal (Ford v. Moore 79 AD2d 403 [1st Dept 1981]).

It is undisputed that Ms. Brannon made one or more home visits, discussed the proposed settlement options at length with Undertenant, investigated the allegations in the petition and Undertenant's asserted defenses and then after due consideration and presenting all the facts to the Court endorsed the proposed settlement. The sole basis asserted for the removal of Maxine Brannon as GAL for Undertenant is that she proposed that the Court accept the Guzman Stipulation over Undertenant's explicit objection, rather than proceed

 

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with a trial.4

The extent to which a GAL may endorse or ask the Court to accept a proposed settlement that the ward is not consenting, has been an issue of some controversy for courts. In 1976, The Court of Appeals held :

…(A) guardian ad litem may of necessity be obliged to act contrary to the desires of…and to adopt a position adverse to that urged by his ward. .. It is incumbent on a guardian to make an objective evaluation of the circumstances and to take such action as will advance what he perceives to be the best interests of the ward; the best wishes of the ward will be relevant but not determinative (Id at 247).

Other courts have relied on this authority to hold that a GAL may act contrary to the wishes of his ward. For example, in Feliciano v. Nielsen (290 AD2d 834 [3rd Dept, 2002]), the Appellate Division found that a GAL was entitled to enter into a stipulation agreeing that the ward's children could move out of state with their father, even though this was against the express wishes of the mother, the GAL's ward. The mother argued on appeal that the GAL lacked authority to enter such a stipulation. The Appellate Division disagreed with the mother's position, and affirmed the acceptance of the stipulation by the Family Court. The Appellate Division held that the role of the GAL was not to follow whatever wishes the ward expressed, but rather to make an independent investigation, into the facts and circumstances, including but not limited to the ward's wishes, and then make a recommendation to the court to accept a proposal that the GAL believed was in the wards best interests. The holding in Nielsen is applicable to this proceeding.

Moreover, the ultimate determination as to whether the stipulation is accepted lies with the Court. While the GAL may recommend the proposed stipulation, the GAL may not unilaterally bind the ward, it is the Court that must determine whether to accept the stipulation based on a totality of the circumstances.

While the authorities differ on the issue of whether a GAL may enter a stipulation surrendering possession of a Subject Premises in a summary proceeding over the ward's objections, cases holding it is not permissible, focus on the involuntary forfeiture of a property interest (see eg NYCHA v. Jackson 13 Misc 3d 141[A], 2006 NY Slip Op 52265 [U][App Term, 2nd Dept 2006][stipulation by GAL for occupant where occupant asserted

 

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possible meritorious claim to succession vacated]; 1234 Broadway LLC v. Lin 25 Misc 3d 476 [occupant's succession claim to regulated unit not subject to forfeiture by GAL over occupant's objections]).

In this proceeding, Undertenant has no independent right to possession, or property right, which was given up by the Guzman Stipulation. The right to possession belongs to Respondent, who consented to the Perez Stipulation. Undertenant's right to possession derives solely from Respondent, is subordinate to Respondent's right to possession and is extinguished by the judgment of possession entered in favor of Petitioner. Due Process entitles Undertenant to notice and an opportunity to be heard, both of which he received in this proceeding (170 West 85th Street Tenants Assn. v. Cruz 173 AD2d 338[1st Dept,1991]).

In this case, the determination as to whether to accept the Guzman Stipulation over Undertenant's objection was more difficult, because it was Undertenant's presence in the Subject Premises, and his conduct, that put Respondent's tenancy at risk. Allowing Undertenant to proceed to trial would have risked Respondent's valuable subsidized tenancy, which she did not wish to lose. While Respondent also did not wish to exclude Undertenant from the Subject Premises, at the allocution, she indicated a preference for this alternative, over the risk of proceeding with the trial, and losing her tenancy.

Additionally, the only defense preserved for trial was a general denial. Undertenant's sole asserted meritorious defense is that the allegations in the petition are false. There seems little likelihood of his prevailing on this defense at trial. Both the GALs represented to the Court that they believed that the allegations in the underlying petition would be established by Petitioner at trial. This representation is further supported by the evaluation of Dr. Hayes. Dr. Hayes' described Undertenant's allegations regarding conditions in the Subject Premises as "somatic delusions"5, and noted Undertenant was noncompliant with prescribed psychiatric medications. Ms. Brannon and the Court had to consider, in evaluating the proposed settlement, whether Undertenant had the capacity to provide credible testimony on material issues at trial (Humphreys v. Humphreys NYLJ Aug. 29, 1995, p.30, col.5).

Under these circumstances, the Court concluded that it was in the best interests of Respondent to proceed with the stipulation, and that Undertenant's objections did not warrant the Court rejecting the Guzman Stipulation, and proceeding with a trial.

 

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It is clear when a GAL proposes that the Court accept a stipulation, with a judgment of possession and warrant of eviction, against the express wishes of the ward, even where the ward lacks an independent property interest or meritorious defense, the proposed stipulation and surrounding circumstances must receive strict scrutiny and careful review prior to acceptance by the Court. Ultimately, however, it remains the court's responsibility to determine, based on a totality of the circumstances, whether it is appropriate to accept the proposed stipulation and adopt it as a court order or not (NYCHA v. Jackson supra citing Noe v. True 507 F2d 9).

The Court holds that under the particular circumstances of this proceeding there is no basis to remove the Maxine Brannon, as GAL for Undertenant, nor is there a basis to vacate the Guzman Stipulation.

Based on the foregoing, the motion is denied, and both stipulations remain in full force and effect. However, given that: this order is issued March 18,2010; the stipulations require that Undertenant vacate by the end of the month; and it is unclear as whether or not Undertenant has vacated the Subject Premises; the Court modifies both stipulations to the extent of staying execution of the warrant in the Guzman Stipulation, and issuance of the warrant in the Perez Stipulation through April 30, 2010, for Undertenant to vacate, if he has not already done so.

This constitutes the decision and order of this Court.

1. Several different agreements had been proposed and discussed during the course of the day's conferences, and the Court mistakenly referred to terms of a prior proposal at the beginning of Respondent's allocution. However, this was immediately corrected by the Court, and addressed and resolved at the beginning of the allocution on the record.

2. The motion is brought by Undertenant. Undertenant put Respondent's name on the top of the affidavit in support, but signed his own name at the bottom. The affidavit requests removal of the GAL, and vacatur of the stipulation. For the purposes of this motion, and given the conflict of interest between Respondent and Undertenant, the Court treats the pending application as Undertenant's motion to vacate the Guzman Stipulation and relieve Ms. Brannon as Undertenant's GAL.

3. The Court takes Judicial Notice that the Subject Building contains 998 units and that on March 10, 2010 there were no open violations of record in the entire building for either the current or previous year. There were complaints filed for the Subject Premises for lack of heat on October 15, and 16, 2009, and HPD records indicate that the occupants confirmed heat had been restored.(Http://167.153.4.71/hpdonline/select_application.aspx).

4. Some courts, faced with a motion for removal, have appointed a new GAL for the purposes of the motion. Given the narrow scope of the instant application, the Court is satisfied that this was not necessary. Undertenant clearly articulated the basis upon which his request for the relief was predicated, and took appropriate measures to bring his request before the court.

5. March 4, 2009 report of Dr. Charles Hayes, annexed to April 15, 2009 motion by DSS for appointment of a GAL for Juana Perez.