Landlord Thwarted 2nd Time On Eviction

A local landlord struck out on his second attempt to evict a Norton Street tenant — as his lawyer promised to file a third lawsuit soon.

That was the outcome of an hour-and-a-half-long hearing in state housing court Thursday. The virtual hearing took place online via YouTube.

State Superior Court Judge John Cirello ultimately threw out a lapse-of-time eviction case that NHCD 4 LLC — a holding company controlled by landlord Yonah Schwartz — filed in February against tenant Stacey Clark. 

The case itself dates back to Dec. 16, when Schwartz’s company served Clark with a notice to quit, telling her that her month-to-month lease had expired and that she had to leave her apartment by the end of January. 

That notice to quit came down just 10 days after Cirello had dismissed Schwartz’s company’s previous attempt to evict Clark for nonpayment of rent. In that Dec. 6 decision, Cirello turned down the landlord’s bid to evict his tenant instead of accepting state rental assistance funds designed to keep her in place.

On Thursday, meanwhile, Cirello dismissed the lapse-of-time eviction case only after legal aid attorney Yonatan Zamir and landlord-hired attorney Joshua Brown argued their respective clients’ cases at length.

Both lawyers ultimately called for the judge to throw the lawsuit out, for different reasons. 

Zamir urged the judge to dismiss the case because, he argued, Clark is protected by state statute Sec. 47a-23c., which prohibits landlords from evicting tenants with disabilities simply because their lease has expired. 

He also argued that the second eviction lawsuit is retaliatory and in violation of state statute Sec. 47a-20 — seeking to punish Clark for making a ​“good faith” housing code complaint with the city’s Livable City Initiative (LCI) in mid-November.

“The court does not have the power under well established case law to hear this case,” Zamir said in virtual court on Thursday. ​“My client is a person with a verified disability.” She is therefore a tenant who is ​“not lapsible.” 

Brown, meanwhile, argued that Clark was the one who had retaliated against her landlord, not the other way around: The complaint she filed with LCI was not done in good faith, he claimed, but was rather seeking to punish the landlord for filing the first eviction lawsuit against her. 

Brown also argued that Clark’s ​“alleged mental disability” is not significant enough to warrant the protection of the state law referenced by Zamir.

And he argued that these substantive concerns about whether or not Clark could be evicted for lapse of time were moot — because the judge had already issued a default judgment against her in late February for failing to file a timely appearance in the case.

At the very top of the hearing, Brown laid his and his client’s cards on the table, so to speak, letting the judge and Zamir and Clark know how the landlord planned to proceed, even if he lost this second eviction case. 

“I’d like to dispose of this matter today,” Brown told the judge after Cirello asked if he wanted the case continued to a future date so that both sides could grapple with a legal argument that Zamir raised for the first time during Thursday’s hearing. (That is, whether or not the initial service of the summons and complaint in the case was properly handled.)

“If you rule in favor of the defendant,” Brown said, ​“then we’re going to open and withdraw the case and begin again” with yet another eviction lawsuit. ​“If you rule in favor of the plaintiff, we will proceed with the execution” of the eviction judgment that Cirello granted on Feb. 24.

Eviction Protections Debated

Since Thursday’s hearing was technically about Zamir’s March 10 application for an injunction, the bulk of the hour-and-a-half hearing saw both sides’ lawyers arguing the details of the two state laws cited by Zamir as grounds to quash the eviction judgment. 

That is, the one that protects tenants with disabilities from evictions in certain situations, and the other that prohibits retaliatory eviction lawsuits.

Cirello called on Zamir to cross-examine Clark to help prove that her disability is ​“significant” enough to warrant the protection of this law. Clark said that she suffered from lead poisoning as a child, has trouble reading, and receives Social Security disability payments as her only source of income.

“A tenant who is defined as disabled under the statute, which my client is, may not be evicted for anything but good cause,” Zamir said.

“If this court determines that Ms. Clark’s disability is a significant mental disability,” Brown said later in the hearing, ​“then had she made that defense in a timely manner, that would be a bona fide defense to the eviction action. But again, that legal defense and the facts that support such a defense were available to Ms. Clark before judgment entered. There’s nothing new today.”

As for the issue of the eviction lawsuit being retaliatory, both Brown and Zamir cross-examined the Norton Street property’s maintenance man, identified only as ​“Mr. Katz,” for details about Clark’s mid-November housing-code complaint to LCI, and about how promptly or slowly the landlord addressed the issues raised.

“My client had made a good faith complaint regarding substantial conditions which existed within the apartment,” Zamir said. Those included a broken window in the children’s bedroom, busted electrical outlets, a leaky toilet, and a persistent leak in the ceiling above the shower, ​“causing there to be reasonable danger … that the ceiling would cave in.”

Brown argued that the complaints made by Clark ​“were not significant, serious complaints,” and he said that the landlord addressed many of them promptly. He then said that LCI had failed the unit upon reinspection not because of housing code issues left unaddressed by the landlord, but rather because the apartment was ​“dirty” on Clark’s account.

What's That LLC Called Again?

Zamir’s cross-examination of Katz led to one of the testier exchanges between the judge and the tenant’s lawyer.

Zamir pressed Katz on whether or not he knew that a window had been broken for over a year in Clark’s children’s bedroom.

“No, I’m not aware,” Katz replied.

“You’re aware that the leak from above the bathroom ceiling, that the ceiling looked to be caving in at any moment?” Zamir asked.

“I don’t have any record of it,” Katz replied.

“Are you aware of the protocol” for reporting maintenance concerns for — Zamir paused as he tried to remember the name of the holding company that legally owns the Norton Street property. 

For ​“whatever this one is called,” he said.

Cirello jumped in.

“Attorney Zamir, let’s show a little bit more respect for the plaintiff,” he said. He noted that the property owner in question is NHCD 4 LLC. ​“It’s not that hard to remember,” Cirello said.

“My apologies,” Zamir replied. He said he knows Schwartz’s company by another name: Elm City Properties.

"Equitable Grounds"

Ultimately, Cirello declined to make a decision solely based on Zamir’s and Brown’s arguments over the legal applicability of these two state statutes. That would require another hearing with more witnesses and evidence presented on both sides.

“I am going to make this decision solely based on equitable grounds,” he said.

He then laid out the ​“equities” as he sees them. 

Clark was going through an eviction process. The state approved her UniteCT rent relief application. The landlord received those funds … and ​“shortly thereafter began this eviction action for lapse of time.”

Clark testified, ​“and the court believes,” that she has a learning disability. She is also on a fixed income and receives a federal rental subsidy. ​“She has not missed a payment, and is paid up to date” on rent, Cirello said. ​“I haven’t heard any testimony to dispute that.” 

There may or may not have been issues with the service of the summons and complaint, he added. ​“There are serious conditions about the apartment that the court would like to have a further evidentiary hearing on, further testimony on.”

And, he said, ​“this is not an at-fault eviction. This is a lapse-of-time case.”

So.

“I am going to quash the execution of eviction,” Cirello concluded, thereby granting Zamir’s application for an injunction.

Cirello then turned to Brown and asked how he and his client would like to proceed.

“Attorney Brown, you said if you’re ruled against, you’re just going to refile and start from scratch” with a new eviction lawsuit. ​“Would you prefer for me to dismiss this case and you can start from scratch, or would you prefer me to open this action and allow the defendant to proceed on the defenses she’s enumerated?”

That’s when Brown asked the judge to throw the case out.

“I would prefer that you dismiss the action,” he said. ​“That will give us the ability to start fresh.”

With that, Cirello said, the case is dismissed.

“Mr. Schwartz, you couldn’t have gotten better representation from any other attorney in the city,” Cirello said. He told the landlord that his decision did not speak to any ​“deficit” in Brown’s legal advocacy for his client.

“And Ms. Clark, you’re very lucky to have Attorney Zamir,” he said, ​“who is so knowledgeable” and who presented the case in such ​“spectacular” fashion.