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Decided on September 22, 2004
Civil Court of the City of New York, Queens County

57884/02
Attorney for Petitioner: Eschen & Frenkel, LLP BY: Joseph Battista, Esq. 93 East main Street Bay Shore, NY 11706 631-666-7775 Attorney for Respondent: Queens Legal Services BY: Bruno Bianchi, Esq.
89-00 Sutphin Blvd
Jamaica, NY 11435
718-657-8622
Pam Jackman-Brown, J.
The Respondent, unrepresented, moved by Order to Show Cause on June 4, 2004, to be restored to possession. The post eviction motion was calendared for June 11, 2004, in Part E/M. However, on June 11, the courts were closed for President Regan's funeral and the post eviction motion was rescheduled by the Clerk to June 23, 2004, after speaking to Petitioner's attorney by phone. A post card was sent to the Respondent.
Factual History:
This case was assigned to Part M, the designated part for persons who are in the military [*2]or are dependent on someone in the military. Since the Respondent is in the military, this holdover proceeding was transferred to Part M on April 4, 2002, and Counsel was assigned to the Respondent. The Respondent was the prior owner of the subject premises and the Petitioner, Secretary of Housing and Urban Development (hereinafter "HUD") obtained ownership through foreclosure.
On January 8, 2003, there was a stipulation of settlement with a final judgment of possession and a warrant of eviction. In addition, the stipulation provided for an opportunity for Respondent to submit an offer to repurchase the premises. (See stipulation of settlement dated January 2003.) On January 22, 2004, the stay was extended to April 30, 2004, and the terms of the January 8, 2003, stipulation remained the same.
On June 23, the assigned Judge was at a Judicial Conference and the motion was
referred to Part A, which was the emergency assigned part. The Court heard arguments from both sides.
The Respondent sought relief to be restored to possession after she was evicted on June 4. She is a member of the United States Army and was activated to military duty after the September 11, 2001, terrorist attack. During her training and preparation for deployment to Iraq, she became ill. She was hospitalized on several occasions from October 2003 through May 2004. She was in intensive care in May 2004. She was at her mother's home recuperating when she was evicted on June 4. She notified the Petitioner's Counsel of her medical condition and hospitalization. (See Letters of April 27 and May 20, 2004 by Department of Veterans Affairs New York Harbor Health Care System Program Support Assistant.) She further stated that all Use and Occupancy was paid through June 2004. The Respondent appeared in full military uniform, showed her current military identification and proof of her hospitalization. Because of her medical condition, she could not travel to Iraq until she received medical clearance. She was requesting restoration to possession and more time until a decision is made for her to go to Iraq or to obtain available military housing.
On June 23, the Petitioner orally opposed the motion and disputed that the Respondent was in the military. Petitioner's Counsel, Mr. Joseph Battista, argued that a website search was conducted, on March 3, 2004, on the Defense Manpower Data Center, which result showed that the Respondent was 'currently not on active military duty'. On that basis, the warrant of eviction was executed. Mr. Battista stated that the Use and Occupancy for May and June was returned but did not know when the payments were returned.
The Court restored the Respondent to possession and ordered the Petitioner to turn over the keys to the Respondent. Mr. Battista, the Petitioner's attorney, requested until June 25 to turn over the keys since he had to obtain the keys from the Petitioner who was not in the City. The application was granted and the Court issued a preliminary order of restoration pending the filing of an affidavit of compliance by June 25. On June 24, Mr. Battista informed this Court's personnel that he was not complying with the Court's Order. The Court issued a further Order for both sides to appear on June 30 for a full hearing. (See Orders of June 23, 2004 and June 24, 2004.) The Respondent was assigned new counsel for the hearing.
The Petitioner filed written opposition on June 28, 2004. The hearing commenced on June 30, 2004.
At the hearing, the Respondent testified and repeated the same information as previously [*3]stated on June 23. She worked at the rescue operation at the World Trade Center after the September 11 incident. While she was waiting to be deployed to Iraq, she became sick and was hospitalized in June 2003, October 2003, April 2004 and was in intensive care in May 2004. She was hospitalized again in July 2004. She is now awaiting medical clearance to be redeployed to Iraq. She stated that after she informed the Petitioner's Counsel of her medical condition, and in reliance on their continuing negotiation for her to repurchase the subject premises, pursuant to the January 8 agreement, and the several phone conversations she had with the Petitioner's Counsel, she was under the belief that the eviction would be postponed. The Respondent also testified that she made several requests to obtain the buyout price to repurchase the premises but did not receive any communication of whether her offer was accepted or rejected. In addition to speaking to Petitioner's Counsel, she faxed a letter on May 20 confirming her hospitalization in intensive care. She stated she spoke to the Petitioner's Counsel a few days before the eviction and told Petitioner's Counsel that she could not walk and that she was recuperating at her mother's home. She again showed her military identification and was in full military uniform.
The Attorney, who handled the case previously and spoke to the Respondent, testified. She admitted that she was aware of the Respondent's military status, her medical condition, her hospitalization and that she was under bed care. The attorney testified that she conducted a military website search on March 3, 2004, and, after the eviction, on June 22, 2004. The attorney testified that the website search showed that the Respondent was 'currently not on active military duty'. The attorney was unable to state what information was used to conduct the website search on the Department of Defense Manpower Data Center. The attorney also stated that she tried to negotiate to have the Respondent repurchase the subject premises. However, she admitted that she did not inform the Respondent that the negotiation had failed and her offer was rejected.
The Petitioner also produced a process server who did not have any knowledge of whether, when or how the eviction notice was served.
Discussion and Conclusion:
On April 4, 2002, a family member appeared in court on behalf of the Respondent. The family member give the court a letter from the Department of the Army showing that the Respondent was ordered to perform Military Duty from September 11, 2001. The Court assigned an attorney on behalf of the Respondent to contact JAG. The attorney contacted JAG and the Respondent appeared on the next court date. The Assigned Counsel stated the Respondent's military status was never an issue based on his contact with JAG, the appearance in full military uniform and the Department of the Army letter to the Court.
On January 8, 2003, a stipulation of settlement was entered into with the Petitioner's Counsel and Counsel for the Respondent. After the first stipulation, there were other appearances in Court by the Respondent who appeared unrepresented. Each subsequent stipulation and order stated that the Respondent was in the military. The Petitioner's Counsels who negotiated stipulations of settlement and the attorney who testified did not dispute that the Respondent is in the military. For this hearing, the Respondent produced her military identification and was in full military uniform. It is not clear why the Petitioner's Counsels did a military search since the Court confirmed from the commencement of this proceeding on April 4, 2002, that the Respondent is in the military (emphasis added). See, Court's file which [*4]includes correspondence to and from the Department of the Army, stipulations of settlement with the Respondent and Orders by the Court.
Assuming the Military status was in question, the alleged military search was done more than 30 days prior to the eviction. The military search was done on March 3, and, after the eviction, on June 22. The eviction was June 4. The Petitioner relied upon the status "currently not on active military duty" to make the determination that the Respondent was not in the military but failed to show what information was used in the website search to obtain that information and reach that conclusion.
Pursuant to 50 U.S.C. App.

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