Opinion
071507/07.
Decided February 21, 2008.
Norris, McLaughlin Marcus, P.A. Attorney for Petitioner NY.
By: Dean M. Roberts, Esq. Brian Burke Respondent Pro Se New York, NY.
Upon the foregoing cited papers, the Decision/Order on these motions is as follows:
Introduction
This non-payment proceeding was commenced by petitioner for rent arrears stemming from April 2005 to the present. Currently before this court is whether respondent has waived his right to a jury trial.
Among other items, respondent submitted a jury demand with his omnibus motion pursuant to CPLR 2218. Respondent bases his entitlement to a jury trial upon the initial lease he entered into in November 1997 for a one year term.
Factual Background
On November 22, 1997 petitioner and respondent entered into a form rent stabilized lease agreement that contained a jury waiver provision and, at the same time, and incorporated as part of the same document, petitioner and respondent entered into a Section 8 rent subsidized rental agreement that included a provision invalidating any jury waiver that may have been included elsewhere in the rental agreement. The Section 8 provisions were expressly incorporated as part of the rent stabilized lease at the time the documents were signed. These lease agreements ("the 1997 lease") expired by their terms on November 21, 1998. The 1997 lease is the only lease provided to the court. Since its expiration, respondent has continued to live in the apartment. It is undisputed that respondent's Section 8 subsidy has been terminated, he is no longer receiving Section 8 benefits and remains a rent stabilized tenant. Petitioner argues that since respondent's participation in the Section 8 program has come to an end, the Section 8 lease provisions incorporated into the original lease no longer apply and the jury waiver is valid and in effect.
Conclusions of Law
Generally, the right to a jury trial is so fundamental that courts "will indulge every reasonable presumption against waiver" ( Aetna Ins. Co. v Kennedy, 301 US 389, 393). As such, jury trial waivers are always strictly construed and are not to be inferred or extended by implication ( Barrow v Bloomfield, 30 AD2d 947, 947 [1st Dept 1968]). In both civil and criminal cases, where a waiver of a jury trial is asserted, the burden rests with the party who seeks to enforce it and there must be a showing that the waiver was a clear, knowing and intelligent waiver, and that the waiver was voluntary and intentional ( 407-88 Assoc. v Sawyer, 83 Misc 2d 300, 301 [Civ Ct, NY County 1975]). Once a jury trial is properly waived, courts will not interfere with the waiver ( see Matter of Malloy, 278 NY 429, 433).
In residential cases, a jury waiver clause in a lease is binding between the parties and will bar a trial by jury in litigation covered by the provisions of the lease ( see Waterside Holding Corp. v Lask, 233 AD 456, 457 [1st Dept 1931]); Fowler Court Tenants Inc. v Young, 119 Misc 2d 492, 493-494 [Civ Ct, NY County 1983]); Pierre v Williams, 106 Misc 2d 81, 83 [Civ Ct, NY County 1980] [court upheld a waiver clause in a residential lease in a dispute arising from warranty of habitability claims]). Although warranty of habitability claims cannot be waived and are statutorily protected, the manner in which disputes arising from them are handled is not mandated and parties are free to waive their right to a jury trial ( Pierre v Williams, 106 Misc 2d at 84).
However, because the right to a trial by jury is fundamental and courts indulge every reasonable presumption against a finding of a waiver ( Aetna Ins. Co. v Kennedy, 301 US at 393), the burden of proving a waiver rests upon the party seeking to enforce it ( Street v Davis, 143 Misc 2d 983, 985 [Civ Ct, NY County 1989]; see also Williams v Mascitti, 71 AD2d 813, 813 [4th Dept 1979]). Petitioner seeks to strike respondent's request for a jury trial and, as such, has the burden of demonstrating to this court that respondent waived his right to a jury trial. Where separate Section 8 leases and rent stabilized leases that do not reference one another are in effect at the same time, the Section 8 lease supercedes the rent stabilized lease and controls while "the parties are subject to [the Section 8] program" ( Dick v Strachan, 136 Misc 2d 79, 81 [Civ Ct, NY County 1987]; see also Licht v Moses, 5 Misc 3d 1023 [A], 2004 NY Slip Op 51522 [U], *4 [Civ Ct, Kings County 2004] [once a tenant is terminated from the Section 8 program, the rent stabilized lease alone controls unless the Section 8 provisions are specifically incorporated by reference], revd on other grounds, 11 Misc 3d 76 [App Term, 2nd Dept 2006]). In this case, two lease forms were executed simultaneously, they incorporated each other by explicit reference, and thus merged into one single lease between the parties; they were not two separately executed leases ( see generally Cosmopolitan Assoc., LLC v Ortiz, NYLJ, Nov. 12, 2004, at 20, col 1[Civ Ct, Queens County] [rent stabilized lease and HAP contract were not merged, implicitly recognized merger where documents are incorporated by reference]; Licht v Moses, 5 Misc 3d 1023 [A], 2004 NY Slip Op 51522 [U], *4 [same], revd on other grounds, 11 Misc 3d 76). A provision in the 1997 lease explicitly invalidated any jury waiver provision ( see Lease dated Nov. 22, 1997 [Petitioner's Exhibit G, at 2, 3 13, ¶ N [6]). Therefore, the provision invalidating the jury waiver is part and parcel of the lease entered into between the parties ( see e.g. Dick v Strachan, 136 Misc 2d at 81 [Section 8 lease entered into subsequent to a rent stabilized lease sets forth parties' complete agreement and supercedes rent stabilized lease's waiver of trial by jury]; see also Rosario v Diagonal Realty, LLC , 8 NY3d 755 , 762 [acceptance of a Section 8 subsidy is a term and condition of every lease signed with a Section 8 tenant], cert denied ___ US ___, 2008 US LEXIS 959, 2008 WL 114041; Cosmopolitan Assoc., LLC v Ortiz, NYLJ, Nov. 12, 2004, at 20, col 1; Licht v Moses, 5 Misc 3d 1023 [A], 2004 NY Slip Op 51522 [U]).
Respondent retains all the protections of a rent stabilized tenant even though his Section 8 subsidy has expired ( see Dick v Strachan, 136 Misc 2d at 81, citing Matter of Fishel v New York City Conciliation and Appeals Bd., 123 Misc 2d 841 [Sup Ct, Kings County 1984]). The Rent Stabilization Code (9 NYCRR) requires that landlords provide renewal leases requested by a rent stabilized tenant (RSC § 2522.5 [b] [1]) and that every renewal lease be offered "on the same terms and conditions as the expired lease" (RSC § 2522.5 [g] [1]; Rosario v Diagonal Realty, LLC, 8 NY3d at 761; Evans v Schneider, 2 Misc 3d 139 [A], 2004 NY Slip Op 50268 [U], *1 [Sup Ct, App Term 2004]). No renewal leases have been submitted by either party. Where a rent stabilized tenant fails to timely renew an expiring lease, "such lease or rental agreement may be deemed to have been renewed upon the same terms and conditions . . . had the offer of a renewal lease been timely accepted" (RSC § 2523.5 [c] [2]). Similarly, where a landlord fails to offer a renewal lease, "the tenant shall continue to have the same rights as if the expiring lease were still in effect" (RSC § 2523.5 [d]; Rosario v Diagonal Realty, LLC, 8 NY3d at 764 [landlord's obligation to continue to accept Section 8 subsidies is part and parcel of requirement that renewal leases under Rent Stabilization Code be renewed with the "same terms and conditions" as the expired lease]; see also Kouznetski v Verga Assoc., NYLJ, July 10, 2002, at 29, col 2 [Sup Ct, Kings County] [notation on initial rent stabilized lease concerning tenant's Section 8 subsidy incorporated into each subsequent renewal lease]).
Although respondent's Section 8 subsidy has terminated, the provision invalidating a jury waiver remains part and parcel of the only lease between the parties ever presented to this court (see supra), and the court will not presume the tenant's intent to waive so fundamental a right as the right to a trial by jury without clear evidence ( see Aetna Ins. Co. v Kennedy, 301 US at 393). No rent stabilized lease for the time period covered in this non-payment proceeding has been provided to the court which would demonstrate that a jury waiver is currently in effect ( see Dick v Strachan, 136 Misc 2d at 81). Petitioner has thus failed to demonstrate the tenant's "clear, knowing and intelligent" waiver of his right to a trial by jury ( see 407-88 Assoc. v Sawyer, 83 Misc 2d at 301). As such, petitioner has not met its burden of proving respondent's waiver of his right to a jury trial.
The court has considered respondent's remaining claims and finds them to be entirely without merit, and has considered petitioner's remaining arguments and finds them to be meritorious.
Conclusion
Accordingly, for the reasons set forth herein, respondent's omnibus motion III and IV are denied in all respects except that respondent's demand for a jury trial is not stricken. Petitioner's cross motion is granted in its entirety except that respondent's second unnamed affirmative defense of a jury demand is not stricken. The matter is restored to the court's calendar on March 11, 2008, Part H, Room 1164B at 9:30 A.M. for trial.
This constitutes the decision and order of the court.
The clerk shall serve a copy of this decision and order upon all parties.