Opinion
31372/2016
06-25-2019
DIEGO BEEKMAN MHA HDFC, Petitioner, v. Jackie MCNEIL, Respondent, Emmanuel Thillet, Kevin Mathis, "John Doe", "Jane Doe", Respondents (Under- Tenants).
Petitioner's Attorney: Hertz Cherson & Rosenthal P.C., 118-35 Queens Boulevard, Ninth Floor, Forest Hills, New York 11375, (718) 269-7765 Respondent's Attorney: Cristina Castro, Esq., Bronx Legal Services, 349 East 148th Street, 2nd Floor, Bronx, New York 10451, (718) 928-2887
Petitioner's Attorney: Hertz Cherson & Rosenthal P.C., 118-35 Queens Boulevard, Ninth Floor, Forest Hills, New York 11375, (718) 269-7765
Respondent's Attorney: Cristina Castro, Esq., Bronx Legal Services, 349 East 148th Street, 2nd Floor, Bronx, New York 10451, (718) 928-2887
Diane E. Lutwak, J.
BACKGROUND
This is a holdover eviction proceeding brought by Petitioner Diego Beekman MHA HDFC against Respondent Jackie McNeil , a Rent Stabilized tenant with a federal Section 8 housing voucher administered by the New York City Housing Authority (NYCHA) living at 283 Cypress Avenue in the Bronx. The basis of the proceeding is failure to cure alleged breaches of her lease including unauthorized occupants, false certification of income, harboring occupants that commit criminal activity and installation of a washing machine without the landlord's written permission. The petition was originally noticed for June 13, 2016. Following numerous adjournments for various reasons Respondent's motion for summary judgment was denied by Decision/Order of Housing Court Judge Breier dated February 28, 2018 which noted that the unauthorized washing machine claim, as to which there were issues of fact, was the only one remaining as Petitioner had withdrawn all others. After a trial held on April 25, 2019, and submission of post-trial memoranda of law on June 21, 2019, and for the reasons that follow, this proceeding is dismissed.
Jackie McNeil is the only Respondent who appeared in this proceeding and all references herein to "Respondent" refer only to her.
TRIAL
At trial, each side presented the testimony of two witnesses. Both Petitioner and Respondent had subpoenaed NYCHA and the representative from that agency who appeared, Pierre Maurilus, a Housing Assistant and Court Liaison, was called out of turn by each side as their first witness. As Petitioner's witness, Mr. Maurilus testified that Respondent has been a Section 8 housing subsidy voucher holder since April 2009 and has lived at the subject premises the entire time. A "Housing Assistance Payments Contract" referencing a lease term of April 1, 2016 through March 31, 2018 and a contract rent of $1499.34 was admitted into evidence without objection. Mr. Maurilus testified to the different monthly amounts NYCHA calculated for its subsidy and for the tenant's share of the rent from 2016 until the present.
As Respondent's witness, Mr. Maurilus identified a NYCHA form entitled "Certification of Completed Repairs" dated December 10, 2014. The form refers to an inspection of Respondent's apartment that took place on December 9, 2014 at which violations were found for (1) a defective outlet in the kitchen ("GFCI NEEDED") and (2) "bubbling, chipping, cracking, damaged, peeling severe" in the "Halls/Staircase". The lower section of the form contains the names of the owner and tenant with signatures for each and indicates that the conditions were corrected on December 18, 2014. The Court admitted this document into evidence over Petitioner's objection as to relevancy. Mr. Maurilus also testified about NYCHA's annual inspection process for confirming that apartments are in suitable condition and identified a "Service Request" form from Petitioner that was not a NYCHA document but was in Respondent's tenant file at NYCHA. This document, which was admitted into evidence without objection, reflects a service request on December 10, 2014 for the same two items listed on the NYCHA "Certification of Completed Repairs" form and includes, in the "Technician Notes" section, statements as to the replacement of two GFCI in the kitchen, replacement of sheetrock in the living room and bathroom, and plastering and compounding in the living room, bathroom, hallway and both bedrooms.
"GFCI" is the acronym for ground-fault circuit interrupter.
Next to testify was Tyron Reiv, who testified that he has worked for Petitioner for the past twenty-one years. He currently works as one of three area managers who reports to the property manager, with various duties including but not limited to rent collection, supervision of recertifications and apartment and building inspections. Certified copies of Petitioner's deed dated February 12, 2003, multiple dwelling registration statement from the New York City Department of Housing Preservation and Development and Rent Roll Report from the New York State Division of Housing and Community Renewal were all entered into evidence without objection. Also admitted into evidence without objection were a Rent Stabilized lease for the term of April 1, 2010 through March 31, 2012 and a Renewal Lease for the term of April 1, 2016 through March 31, 2018, both executed by Petitioner's Property Manager and by Respondent.
Mr. Reiv testified that the reason Petitioner brought this case against Respondent was because she has a washing machine in her apartment without the landlord's written consent and in violation of her lease: Specifically, paragraph 27, entitled "Rules and Regulations", which prohibits the tenant from installing, inter alia , a "laundry machine" without the written consent of the landlord, and paragraph 48 of the rider to that lease, which prohibits the tenant from installing, inter alia , a "clothes washing machine". Mr. Reiv testified that the reason for the prohibition against washing machines in the building is because the plumbing was not built to accommodate such appliances, which cause backups into other apartments.
The lease also has a "no waiver" clause in paragraph 30, which states that, "The failure of the Landlord to insist, at any time, upon strict performance of any clause in this lease shall not be construed as a waiver of the Landlord's rights. No waiver by the Landlord of any provision of this lease can be made unless in writing by the Landlord. Acceptance of rent by the Landlord with knowledge of a breach of any condition or term of this lease is not a waiver of the breach."
Mr. Reiv testified that Petitioner initially sent Respondent a "Lease Violation Notice" dated March 4, 2014 which, although unsigned, was admitted into evidence over Respondent's objection. Checked off in the section entitled "Description of Incident" is item #17: "Installing an unauthorized appliance. (WASHING MACHINE)". Mr. Reiv could not recall the details of how the notice was sent to Respondent other than that it was probably mailed to her on or about the date on the notice. No response was received that Mr. Reiv could recall and Respondent did not remove the washing machine.
Mr. Reiv testified that he has seen the washing machine in Respondent's apartment on two or three occasions, that it is in her kitchen, of average size, approximately 3 feet by 4 feet, red in color. When asked on direct when Petitioner first discovered that Respondent had a washing machine Mr. Reiv testified that he could not recall the date and said: "It's been so long that she had it — many years."
A Rental Payment History Breakdown for Respondent's account for the period of May 31, 2011 through May 1, 2019 was admitted into evidence without objection. Mr. Reiv testified that Respondent's current monthly contract rent is $1,661.99, she has a preferential rent of $1,499.59 and owes $8505.40 through April 2019.
On cross-examination, Mr. Reiv testified that he was not sure exactly for how long Ms. McNeil has been a tenant, but it was "several years". He was not sure if she had lived in the building before he started working there twenty-one years ago but then stated, looking at Respondent's lease for the term beginning on April 1, 2010, that she had lived in the apartment for at least ten years before she signed that lease, which her first under Rent Stabilization. He then looked Respondent's file that he had brought with him and found a lease that began September 1, 1985, although it was not offered into evidence. Mr. Reiv also could not recall when the policy against having washing machines started. Mr. Reiv testified that he had been to Respondent's apartment ten to fifteen times in the past twenty years, and the first such time was "many years ago," before the lease beginning April 1, 2010 was executed. Mr. Reiv described the layout of Respondent's apartment to include a medium-sized kitchen immediately to the left upon entering the apartment. Mr. Reiv acknowledged that large appliances would be observable in Respondent's kitchen, that Respondent's washing machine is visible in her kitchen and that he had seen it approximately four or five times over the years. Although he could not recall when was the first time he saw it, he knew that it was there in 2014 and explained that Petitioner waited until 2016 to bring this proceeding to give Respondent time to remove it. Mr. Reiv also testified to his knowledge of the problem with an electric outlet in Respondent's kitchen that had been corrected and documented in the Service Request generated by Petitioner's maintenance department and admitted into evidence during the NYCHA representative's testimony.
On redirect, Mr. Reiv explained that prior to 2010, the year when Respondent's first Rent Stabilized lease began, the building was a project-based "HUD [United States Department of Housing and Urban Development]" Section 8 building. Rent Stabilization "kicked in" in 2003, although the conversion from project-based to voucher-based Section 8 took several years and the tenants in the building did not all receive Rent Stabilized leases at the same time because of the application and eligibility process. Ultimately, of the 1231 units in the complex, households living in 900 or 1000 were found eligible to receive Section 8 vouchers.
Petitioner rested and then Respondent Jackie McNeil testified on her own behalf. Respondent testified that she moved in to the apartment in 1985 and has lived there thirty-three years. She has always had a washing machine, which she kept in the same location in her kitchen. She had help installing the first washing machine from "Unidos", which she described as "what [Petitioner] Diego Beekman was before; they are the same." Over the course of her tenancy employees of the landlord have come in to her apartment, including Mr. Reiv. She remembered two specific incidents when Mr. Reiv was present. The first was in 1999 when her son Manny was three years old and there was a fire in the vent over her washing machine. She recalled that one of the other workers "wanted to jump on my washing machine" and Respondent told him that "if you have $400 you can jump all over it!" Another time was in 2012, when "a young lady over me was a nuisance. She flooded me." Other people who work for Petitioner have been in her apartment to make repairs, including fixing the outlet behind the washing machine and redoing her floors, although she could not remember when. Respondent further testified that before this proceeding began she was never told she cannot have a washing machine and never received any notice or complaints about it. The washing machine is important to her and she has "never not had one".
Respondent's testimony that she also needs the washing machine because she suffers from arthritis and, since the death of her son Manny in 2016, from depression, was stricken as irrelevant to the waiver defense. She raised no defense or counterclaim based on disability discrimination that she should be allowed to keep the washing machine as a reasonable accommodation of her health problems.
On cross-examination Respondent testified that she has had a washing machine since either 1985 when she moved in or 1986, soon after. She does not have the same one she had when she moved in; she has had three or four washing machines since then. When asked if she sought permission from the landlord to install the washing machine Respondent said yes, she asked the Unidos employee "who moved me in" in 1985 ("Ms. Mannes"). As for her rent, Respondent acknowledged that she has not paid her share since 2016, before her son died, explaining that "they won't accept it". Respondent acknowledged that she currently has no problems with her mailbox, but a few years ago there were a lot of problems as "someone was always breaking it". Eventually the mailboxes were moved to another location in the building, which solved the problem.
DISCUSSION
The preponderance of the credible evidence establishes that Petitioner through its agent Mr. Reiv, who also worked for Petitioner's predecessor-in-interest "Unidos" , knew that Respondent has had a washing machine in her apartment since at least 1999, twenty years ago, when, according to Respondent's credible testimony, Mr. Reiv inspected Respondent's kitchen after a fire and Respondent told Mr. Reiv's co-worker that if he had $400 he could "jump all over" her washing machine. Respondent also testified credibly that she had spoken about the washing machine with, and received installation assistance from, employees of Unidos shortly after moving in and that Mr. Reiv was in her apartment in 2012 in response to her complaints about the tenant above her. Nevertheless, Petitioner and Petitioner's predecessor-in-interest continued to accept rent from and on behalf of Respondent and took no steps against Respondent to enforce her lease's prohibition against the installation of a washing machine until 2014 when Petitioner sent Respondent a written lease violation notice.
Although Mr. Reiv did not testify that he worked for Unidos, he did testify that he has worked for Petitioner for twenty-one years, even though Petitioner's deed shows that it did not acquire ownership until 2003, sixteen years ago. These facts, along with Mr. Reiv's testimony that 2003 is the year when the building converted from being project-based Section 8 to Rent Stabilized status, along with Respondent's consistent testimony that Petitioner used to be Unidos and that Mr. Reiv had been in her apartment after the fire in 1999, establish that Mr. Reiv used to work for Unidos. More details about the history of Petitioner's ownership of the premises can be found in Diego Beekman Mutual Housing Assoc Housing Development Fund Corp v. Nieves (L & T # 23867/15, NYLJ 1202752743416 [Civ Ct Bx Co March 10, 2016] ) and Diego Beekman MHA HDFC v. Owens (29 Misc 3d 1226[A], 920 NYS2d 240 [Civ Ct Bx Co 2010] ).
Mr. Reiv himself acknowledged that the washing machine was in plain sight in the kitchen, and although he could not remember when he first saw it there he testified that Respondent had had it for "many years". The vagueness of this part of Mr. Reiv's testimony matched his uncertainty as to various temporal and other details; for example, he could not recall when this case started and his answer to the question on cross-examination of how long Respondent had lived in the apartment was that he was not exactly sure but it had been "several years". He then later testified that he knew she had lived there for at least ten years prior to when she signed her first Rent Stabilized lease in 2010 and that his file for Respondent included an original lease dated in 1985.
It was also undisputed that Petitioner has accepted rent from Respondent and from NYCHA for approximately two years after Petitioner sent Respondent a Lease Violation Notice, as well as, prior to that, continuously back to at least 2011, as evidenced by Petitioner's rent ledger. Further, it is a fair assumption, and there was no evidence to establish otherwise, that Petitioner and Petitioner's predecessor-in-interest had accepted Respondent's rent payments prior to 2011 and dating back to the commencement of her tenancy.
Where a landlord collects rent and otherwise acquiesces in the tenant's installation and use of a washing machine the landlord "may be deemed to have waived his remedial right, even assuming a breach of a substantial obligation of the lease." Fanchild Investors Inc v. Cohen (43 Misc 2d 39, 250 NYS2d 446 [Civ Ct NY Co 1964] ). In Fanchild , the tenant had installed a washing machine when he moved into the premises and, by the time of the trial, had used it "for the past two years". See also Concord Properties, Inc v. Speier (1985 NY Misc LEXIS 3366, 193 NYLJ 112 [App Term 1st Dep't 1985] )(landlord who admittedly accepted rent from tenant for two and one-half years after issuance of original notice to cure, and then for another eleven months after issuance notice to terminate the lease, was found to have waived any objection to tenant's use of a room in his apartment, in violation of his lease, as a photographic darkroom); 601 West Realty LLC v. Grigoroff (2000 NY Misc LEXIS 723 [Civ Ct NY Co 2000])(summary judgment granted to tenant who had operated a washing machine in her apartment for sixteen years with the knowledge of landlord and its predecessor-in-interest); Melroy Realty Corp v. Siegel (60 Misc 2d 383, 303 NYS2d 198 [Civ Ct NY Co 1969] )(holdover proceeding based on tenant's alleged violation of a substantial obligation of his lease by failing to obtain the landlord's consent to a three-month sublease dismissed based on waiver of the right to evict where landlord had accepted one month's rent "with full knowledge of the subletting and prior to the commencement of this summary proceeding"). The acceptance of rent is, in effect, an election by the landlord to continue the landlord-tenant relationship despite a breach of the lease. Atkin's Waste Materials, Inc v. May (34 NY2d 422, 314 NE2d 871, 358 NYS2d 129 [1974] ).
The existence of a nonwaiver clause in the lease does not in itself preclude a finding of waiver. As explained by the Appellate Division, First Department, "it has long been the rule that parties may waive a "no-waiver" clause. Knowing acceptance of rent without any effort to terminate the lease justifies the inference that the landlord has chosen to hold the tenant to the lease and therefore waived any violation." Lee v. Wright (108 AD2d 678, 680, 485 NYS2d 543, 544 [1st Dep't 1985] ). See also Fieldston Buyers Corp v. Michaels (196 Misc 2d 105, 761 NYS2d 762 [App Term 1st Dep't 2003] ); Melroy Realty Corp v. Siegel, supra; Fanchild Investors, supra . As explained by the Honorable Sidney Asch, prior to his advance to the Appellate Division, discussing a lease provision prohibiting alteration or modification of a residential lease except in a writing signed by the landlord,
Today, the law is giving increasing recognition to the fact that interpersonal relationships do not remain immobilized, like a gargoyle perched in perpetuity on the parapet of Notre Dame. Parties by their acts may alter their own contractual arrangements, or to alter the mode in which they have agreed upon to modify their contract. And most certainly, a party who has a right to enforce a forfeiture under a lease can choose to waive his remedial rights under that lease.
Fanchild Investors Inc v. Cohen, supra (43 Misc 2d 39 at 42, 250 NYS2d at 450 ). Whether or not a waiver occurred is a question of fact. 116 Madison St, LLC v. Seid (873 NYS2d 513, 21 Misc 3d 139[A][App Term 1st Dep't 2008] ); 255 Fieldston Buyers Corp, supra .
Petitioner argues that a recent unreported post-trial decision in a similar case it brought against another tenant, Diego Beekman Mutual Housing Association Housing Development Fund Corp v. Acevedo (L & T # 15265/2017 [Civ Ct Bx Co Dec 7, 2018] ), requires dismissal of this proceeding. However, this Court respectfully finds that decision to be nondeterminative of the outcome in this case for several reasons. First, it is not appellate authority but rather a decision of a coordinate court which does not bind this court. Second, the facts in that case as found after trial were different: The tenant's only proof of when he had installed the washing machine was his somewhat vague testimony that this had occurred "six or seven years ago". Moreover, the tenant further testified that an agent of Petitioner had only seen the washing machine "a few times in the past three or four years" and other evidence at trial established that Petitioner had sent the tenant seven lease violation notices, starting in January 2013, essentially fitting in to the same time period the tenant had testified was when Petitioner's representatives had seen the washing machine in his apartment. Third, that decision does not cite to the decisions of the First Department's Appellate Division and Appellate Term in Lee v. Wright, supra and 255 Fieldston Buyers Corp v. Michaels, supra , which find that a "no-waiver" lease provision is not determinative as it can be waived by the parties and instead cites to Starrett City v. Granthan (2 Misc 3d 132[A], 784 NYS2d 924 [App Term 2nd Dep't 2004] ), which, aside from the fact that it was decided by another Department, is distinguishable on its facts as the court specifically found there that "tenant failed to establish by a preponderance of the evidence that landlord had knowledge of the presence of the washing machine and dryer and waived the right to enforce the lease provision."
CONCLUSION
Accordingly, the Petition is dismissed, with prejudice. The parties may pick up their documents that were submitted into evidence as trial exhibits from the Part T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days. If the exhibits are not picked up by July 24, 2019, they may be disposed of in accordance with Administrative Directives. This constitutes the Decision and Order of the Court, copies of which are being mailed to the parties' attorneys unless picked up forthwith from the Part.