osc affirmation re sonny southerland marshal's notice

8/13/2019 OSC Affirmation Re Sonny Southerland Marshal's Notice

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Middleton is a senior citizen (65 years), a Vietnam War veteran, a disabled veteran, and suffers

from colon cancer. Before the storm, Rabbi Middleton resided at 145 McKenzie Street,

Manhattan Beach 11235 an area that was devastated by the October hurricane. Because Rabbi

Middleton has been unable to find a new home, he has taken refuge with his longtime friend Mr.

Southerland at the subject premises.

5. It should be noted that Mr. Southerland took exemplary actions after the storm toassist many distressed and displaced individuals. For example, Mr. Southerland rescued Rabbi

Middletons 97-year old aunt a holocaust survivor from her flooded Manhattan Beach

basement apartment. Further, after members of his extended family were forced to leave their

home at 2930 West 30th Street, Coney Island 11224, Mr. Southerland provided two of his nieces

and one nephew shelter at his apartment until they could find suitable alternative housing with

other relatives. It should also be noted that Mr. Southerlands mother was adversely affected by

the storm by virtue of a sudden power outage at the hospital where she was being treated. Mr.

Southerland spent days trying to locate her after the storm, whereby she was finally found to

have been transferred to another hospital outside of New York City.

6. Mr. Southerlands monthly rent is $410.00, which constitutes roughly 2/3rds ofhis monthly income.

7. Mr. Southerland and five of his children are named plaintiffs in federal litigationthat is pending in the District Court for the Eastern District of New York. In that litigation, his

children and he allege that they were injured by unlawful acts on the part of agents for the City

of New York. More specifically, the Southerlands allege that New York City, among other

defendants, violated their Fourth Amendment rights against unlawful searches and seizures

when, in June 1997, its agents entered the subject premises and removed six of Mr.


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Southerlands children unlawfully.

8. The said federal litigation, styled Southerland, et al., v. City of New York, et al.,99-cv-03329, was filed in June 1999. In the more than 13 years that the litigation has been

active, there have been two mandates from the United States Court of Appeals for the Second

Circuit. The second mandate was issued on May 25, 2012, wherein the Second Circuit ruled that

the City of New York may be held liable for damages to the Southerlands arising from the 1997

removal of the six children from the very residential premises that are the subject of these

summary proceedings.

9.

After the mandate was issued, the City of New York petitioned the U.S. Supreme

Court for a writ of certiorari. In the U.S. Supreme Court action, styled City of New York, et al.

v. Southerland, et al., No. 12-215, the City seeks the Supreme Courts reversal of the Second

Circuits ruling. A New York law firm that specializes in Supreme Court litigation has appeared

on Mr. Southerlands behalf in the Supreme Court case. The Supreme Court has yet to decide

whether to grant the review. Notably, court records from the Supreme Court website indicate

that the Justices are scheduled to evaluate the petition in a December 7, 2012 conference. If the

Supreme Court does decide to review the case, there is virtually no chance that a decision on the

merits will be handed down before October 2013.

10. Due to the pending Supreme Court petition, the District Judge in the federallitigation ordered an indefinite stay of those proceedings on September 4, 2012.

LEGAL STANDARDS

11. Section 2201 of the Civil Practice Law and Rules authorizes a court to stay theexecution of a warrant upon terms as may be just. See, e.g., Morreale v Morreale, 84 AD3d

1187 (App. Div. 2d Dept. 2011) (quoting the text of CPLR 2201); Errigo v. Diomede, 14 Misc.


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3d 988 (Civ. Ct. Kings Co. 1997) (In general, courts abhor the forfeiture of a leasehold estate as

a result of the dire consequences that the tenant is faced with when forced to vacate the

premises.).

12. Section 753 of the Real Property Actions and Proceedings Law authorizes a courtto stay the execution of a warrant of eviction for a period no greater than six months upon an

occupants application when: (1) the premises are used for dwelling purposes; (2) the application

is made in good faith; and (3) the applicant cannot within the neighborhood secure suitable

premises similar to those occupied by him despite reasonable efforts to secure such other

premises, or that by reason of other facts it would occasion extreme hardship to him or his family

if the stay were not granted. See, e.g., Totaram v. Cordero, 2003 N.Y. Misc. LEXIS 315 (Civ.

Ct. Kings Co. 2003) (The Civil Court has the power to stay the issuance or execution of a

warrant of eviction.); NYCHA v. Witherspoon, 12 Misc. 3d 899 (Civ. Ct. Kings Co. 2006)

([T]his Court finds that under compelling circumstances it can issue a stay of the execution of

the warrant of eviction of no more than six months upon application by the respondent[.]); also

see Newman v. Sherbar Dev. Co., 47 A.D.2d 648 (App. Div. 2d Dept. 1975) (Under section 753

of the Real Property Actions and Proceedings Law a stay of the issuance of a warrant in a

holdover summary proceeding may be allowed for a period not to exceed six months.);

Parkchester Apts. Co. v. Rollieson, N.Y.L.J., 2/6/96, p. 25, col. 1 (App. Term 1st Dept. 1996)

(In residential holdover proceedings the court may stay execution of the warrant for a period of

not exceeding six months.).

ANALYSIS AND ARGUMENT

13.The justifications for a temporary stay of eviction on terms as may be just underCPLR 2201 have been exceeded in this case. The October storm has had a significant impact


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on Mr. Southerland and his family, and has posed many challenges for them. Currently, they are

still providing refuge for Rabbi Middleton, a 65-year old distinguished war veteran, rendered

homeless by the storm during his valiant battle against cancer. Rabbi Middleton, a war hero,

would suffer incredible medial hardships if evicted from the premises. As the court knows,

homeless shelters in the city have reached overcapacity since the storm. Thus, if Mr.

Southerland were evicted, he, his family, and Rabbi Middleton would have no place to go. Ten

people would be placed on the streets of New York City, two of whom receive disability

benefits, if the eviction were to be carried out at this time.

14.What is more, in light of Mr. Southerlands involvement in post-storm rescue and

recovery efforts, it would be manifestly unjust to place him and his family on the streets after he

assisted so many displaced individuals. As the Christmas holiday approaches and families are

planning to celebrate the dawn of a new year, every moral, ethical, and legal consideration

weighs in favor of staying an eviction that would spell hardship for these 10 individuals, who

have already borne a disproportionate burden of the storms effects. Errigo, 14 Misc. 3d 988

(In general, courts abhor the forfeiture of a leasehold estate as a result of the dire

consequences that the tenant is faced with when forced to vacate the premises.). Mr.

Southerland, his family, and Rabbi Middleton should be afforded an opportunity to get on their

feet. Indeed, allowing this eviction to go forward would be the moral equivalent of the infamous

story about the Staten Island man who refused to assist a mother just before her two sons were

swept away by the storm waters of Hurricane Sandy.

15.In addition to the justifications outlined above, other independent grounds existfor staying the eviction pursuant to CPLR 2201. To wit, this court has held that a stay of

eviction should be granted in summary proceedings where the tenant would be irreparably


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harmed by being rendered homeless while federal litigation ensued regarding the subject

premises. See 5201 Snyder Ave. Assoc. LP v Clarke, 32 Misc 3d 1203(A) (Civ. Ct. Kings Co.

2011) ([I]f a stay is not granted by this Court, he and his family, including three minor children,

may very well be irreparably harmed by being rendered homeless before his Federal claims

are determined.). It would be unjust to permit the expulsion of the Southerland family while

they are seeking justice, redress, and damages arising from their unlawful removal from the same

premises in 1997. Likewise, it would be unjust to expel the Southerland family from the

dwelling they shared continuously before the City interrupted them, which is also, remarkably,

the same dwelling they have shared continuously since they were reunited as a family in 2004.

16. Furthermore, if a stay is not granted in this case, the Southerland family willbecome homeless as they seek to uphold the Second Circuits recent finding that the City of New

York may be held liable for the familys entrenched state of destitution. Indeed, the sudden

removal of the Southerland family during the pendency of the Supreme Court proceedings would

disenfranchise the family of the benefits of the Second Circuits ruling. Such an event would

render the Second Circuits ruling meaningless and upstage the litigation that currently ensues in

the U.S. Supreme Court. Moreover, such an event would irreparably harm the Southerland

family by making them homeless, thereby hampering their ability to participate meaningfully in

the litigation, within which they are currently ahead on the merits. The Southerland familys

sudden eviction would, in fact, confer the City an unfair advantage in the pending litigation

before the U.S. Supreme Court. Such an outcome would be inequitable and unjust especially

when one takes into consideration that the actions for which the Second Circuit ruled the City

may be held liable are similar in nature to the outcome the City seeks here: the Southerland

familys abrupt separation from one another, and the Southerland familys removal from the


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subject premises.

17. Finally, removing the Southerland family from their shared home at this juncturewould drive up the harm that has resulted from the Citys alleged deprivations of their Fourth

Amendment rights. To clarify, the Southerland family maintains that their current state of

impoverishment is an aftereffect of the Citys separation of the family via the unlawful removal

of the children in 1997. They maintain further that their family would not have reached such a

state of destitution if the City had not undertaken those unlawful acts in 1997. Because it is a

fact that poor families are more susceptible to evictions from their homes, the Southerland

familys eviction in 2012 would constitute a logical measure of damages arising from the Citys

unlawful actions of 1997. Thus, while it is unknown whether the U.S. Supreme Court will

relieve the City of the Second Circuits ruling, the City would in the event the U.S. Supreme

Court denies such relief be exposed to greater damage measures in the underlying federal

action. That is, if the Southerland family is rendered homeless via this collateral summary

proceeding by the City, leading to another indefinite period of forced separation and giving rise

to a host of emotional, social, and financial impacts for the Southerland family, the City will be

exposed to additional liability stemming from the eviction itself. This latter factor relating to

liability, in combination with the various factors outlined in paragraphs 13 through 16 above, tips

the scales of equity in favor of granting Mr. Southerlands instant request for an order staying the

eviction. Indeed, there is probably no New York case on record constituting a clearer case of

justice and equity requiring the stay of a scheduled eviction.

18. In addition to the discretion afforded by CPLR 2201, the court may stay theeviction warrant pursuant to RPAPL 753(1). As explained in his annexed affidavit, Mr.

Southerland has been unable, despite his efforts, to find suitable replacement housing for his


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family in his neighborhood, and, more broadly, in New York City. Notably, Mr. Southerlands

daughter, Ciara Manning, has a permanent disability, is a recipient of Social Security benefits,

and is raising her 11-month old son at the dwelling. For these reasons and those outlined in

paragraphs above, Mr. Southerland and his family would experience extreme hardships if they

were evicted from the subject premises before finding suitable replacement housing. Owing to

the imminent hardship that would follow a sudden eviction, and owing to the fact that Mr.

Southerland cannot possibly find suitable replacement housing in the very short period of time

before the marshals warrant is scheduled to be carried out, the Court should, pursuant to RPAPL

753(1), stay the marshals eviction notice. Newman v. Sherbar Dev. Co., 47 A.D.2d 648 (App.

Div. 2d Dept. 1975) (In the granting of equitable relief, the court may mold its relief to accord

with the exigencies of the case.).

19. In sum, being that the equities of CPLR 2201 and RPAPL 753 are met here,Mr. Southerlands instant request for a stay of the execution of the eviction should be granted.

CONCLUSION

20. Pursuant to the authorities outlined above, as applied to the facts established viauncontroverted sworn testimony provided in support of this request, the respondent Sonny

Southerland respectfully requests that the Court enter an order staying the execution of the

pending eviction notice.

/s/Brian KingBrian King, Esq.K-FIRM LLP40 Wall St., 28th Fl.New York, NY 10005202-251-2121 (phone)718-313-0050 (facsimile)

Attorney(s) for Sonny Southerland

osc affirmation re sonny southerland marshal's notice

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