Opinion
L & T 62238/2015
01-19-2016
Lincoln Amsterdam House, Inc., Petitioner-Landlord v. Tina Tymus 110 WEST END AVENUE, APT 4C NEW YORK, NEW YORK 10023, Respondent-Tenant.
KELLNER HERLIHY GETTY & FRIEDMAN, LLP Attorneys for Petitioner 470 Park Avenue South, 7th Floor North New York, New York 10016 TINA TYMUS Respondent Pro Se 110 West End Avenue, Apt. 4C New York, New York 10023
KELLNER HERLIHY GETTY & FRIEDMAN, LLP Attorneys for Petitioner 470 Park Avenue South, 7th Floor North New York, New York 10016 TINA TYMUS Respondent Pro Se 110 West End Avenue, Apt. 4C New York, New York 10023 Sabrina B. Kraus, J.
BACKGROUND
This summary nonpayment proceeding was commenced LINCOLN AMSTERDAM HOUSE, INC(Petitioner) against TINA TYMUS(Respondent) the Proprietary lessee and shareholder of 110 West End Avenue, apartment 4C, New York, New York 10023 (Subject Premises) based on the allegation that Respondent has failed to pay maintenance and additional rent due pursuant to the governing proprietary lease.
PROCEDURAL HISTORY
Petitioner issued a three day rent demand dated April 7, 2015, seeking $5,573.89 due in arrears, from November 2014 through April 2015, the amount sought included a monthly "Hud Excess" charge of $267.00, monthly maintenance of $570, assessments and electrical charges. The notice of petition issued April 17, 2015.
Respondent appeared pro se on May 8, 2015, and filed an answer asserting improper service of the pleadings, partial payment, breach of warranty of habitability and a general denial.
The proceeding was initially returnable May 18, 2015.
On July 7, 2015 counsel appeared for respondent and the proceeding was adjourned to August 19, 2015. On August 19, 2015, the proceeding was adjourned to October 6, 2015 for trial or settlement pursuant to the parties stipulation. The matter was marked final by the court (Wendt, J).
On October 6, 2015, the proceeding was assigned to Part R for trial, and the proceeding was adjourned to November 18, 2015 for the trial to commence. On November 18, 2015, immediately prior to the commencement of trial, Respondent advised the court that she wished to fire her attorney and proceed pro se. the trial took place on that date and at the conclusion of the trial the court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the Subject Building pursuant to a deed dated December 3, 1973 (Ex 2 ). There is a valid MDR on file with HPD (Ex 1).
The Subject Premises is in a Mitchell-Lama Cooperative administered by HPD and HUD. Section 236 federal regulations are used to determine the calculation of maintenance charges and HPD is the Contract Administrator that oversees the implementation of those regulations (Ex 4A).
An occupancy agreement for Respondent was marked as Exhibit 3 for identification but was never admitted into evidence. No stock certificate for the Subject Premises was admitted into evidence.
An amendment to the occupancy agreement dated March 1, 2010 was admitted into evidence (Ex 5) which pertained to service animals.
Another lease amendment dated September 24, 2013 was admitted into evidence (Ex D). The document is not executed by either party and provides for a contract rent of $570 and tenant rent of $837 effective October 1, 2013.
Annual recertification documents pertaining to Respondent's tenancy were admitted for the years 1985 (Ex 6), 2009 (Ex 8), 2012 (Ex B) and 2014 (Ex 10).
David Goodman (DG) testified for Petitioner. DG is a property manager for Tudor Realty Services Corp whic has been managing the subject building since August 2012. DG testified that petitioner was seeking $7187.50 in arrears based primarily on Respondent's failure to pay $267 per month in excess charges sought since November 2013. DG testified that a HUD excess charge is assessed when the shareholder's income is past a certain threshold.
Respondent is in her 70s and has lived in the Subject Premises for 33 years. Respondent stipulated that when she first moved into the Subject Premises she was the recipient of a 236 subsidy but that within five years Respondent started to fill out annual income affidavits instead.
Respondent has paid her basic maintenance every month. The primary dispute between the parties centered on whether Respondent had been properly assessed for excess charges based on the 2012 recertification. DISCUSSION
A nonpayment proceeding must be predicated on a default in the payment of rent pursuant to an agreement under which the premises are held [RPAPL § 711(2)].
Generally speaking no tenant shall have the right to occupy a Mitchell-Lama Coop without an executed occupancy agreement approved by HPD [Aleksandrovich v HPD 44 Misc 3d 1217(A)].
Paragraph 2 of the petition alleges that Respondent is a shareholder of the Subject Premises pursuant to a written occupancy agreement wherein Respondent agreed to pay maintenance and additional rent and income based surcharges. Petitioner failed to prove the allegations of paragraph 2 at trial, and freely admitted that there was no executed written agreement between the parties.
It is Petitioner's burden to establish the existence of an agreement to pay the rent demanded (402 Nostrand Avenue Corp. v Smith 19 Misc 3d 44). This is even more so for this proceeding where the dispute between the parties centers not on the payment of the monthly maintenance, but on the claim for excess rent charges. This court has previously held that, particularly in determining whether such charges in a Mitchell Lama Coop are additional rent permissibly sought in a summary proceeding, an examination of the terms of the occupancy agreement is required (Riverbay Corporation v Carrey 29 Misc 3d 855).
Petitioner relies upon Strycker's Bay Apartments, Inc. v. Sharpe (2001 NY Slip Op. 40513(U) in arguing that the failure to prove an executed occupancy agreement does not require dismissal of this proceeding. However that case is distinguishable from the case at bar in that the holding in Strycker's Bay was explicitly based on the history of litigation in that proceeding. The decision cited by counsel held that Petitioner was entitled to attorneys' fees as the prevailing party, notwithstanding the tenant's argument that he was not bound by the occupancy agreement because he did not sign it. The court held that this argument was "... not viable since this proceeding has been litigated based upon the form occupancy agreement issued to all tenant shareholders."
An earlier appeal in the same case (NYLJ Nov. 3, 200, p26, col 1) held that Petitioner was entitled to summary judgment based on the terms of the occupancy agreement, which was not challenged by the tenant as not having been executed.
In the case at bar there is no such history to rely on, and the court can not determine the dispute absent an examination of the specific terms of the parties agreement.
Based on the foregoing, the proceeding is dismissed without prejudice.
This constitutes the decision and order of the Court. Dated: New York, New York January 19, 2016
Parties may pick up Trial Exhibits within thirty days of the date of this decision from the second floor clerk's office, Window 9, located at 111 Centre Street. After thirty days, the exhibits may be shredded in accordance with administrative directives.
___________________ Sabrina B. Kraus, JHC