Opinion
L & T 2901/2019
07-11-2019
MAYFLOWER PROPERTIES, LLC, Petitioner-Landlord, v. Francisco PACHECO, Respondent-Tenant.
For Petitioner: Law Office of Brian Stark, 1325 Castle Hill Ave, Bronx, NY 10462, Phone: (718) 792-1200 Respondent, pro se
For Petitioner: Law Office of Brian Stark, 1325 Castle Hill Ave, Bronx, NY 10462, Phone: (718) 792-1200
Respondent, pro se
Bernadette G. Black, J.
The issue before the court is whether the tenant has a remedy when the landlord fails to provide written receipts for cash payments of rent. Petitioner, landlord Mayflower Properties, LLC ("petitioner"), commenced this summary nonpayment proceeding on or about January 17, 2019 against respondent, tenant Francisco Pacheco ("respondent"), seeking possession of the rent-stabilized premises, 1605 Mayflower Avenue, Apartment 6B, Bronx, New York and a judgment for rent arrears totaling $11,575 at $1,479 per month for the period July 2018 to January 2019 and a balance of $1,221 for June 2018. Respondent's pro se answer represented that the rent arrears alleged were at least partially paid and that the apartment needed repairs.
This proceeding was initially calendared for January 29, 2019. Both parties appeared and stipulated to adjourn the proceeding for respondent to seek counsel, noting that respondent disputed the amount of rent arrears alleged. On April 24, 2019, the parties appeared before the undersigned for pre-trial conference and respondent again disputed the amount of arrears alleged by petitioner and sought additional time to retain counsel. Respondent agreed to pay current rent for April and May 2019, and the matter was scheduled for trial on June 7, 2019.
In support of its prima facie case at trial, petitioner provided certified copies of the deed, the multiple dwelling registration, and the New York State Division of Housing and Community Renewal ("DHCR") rent roll registration for the subject building. Petitioner introduced a copy of the parties' initial lease, stating that the original document could not be located. Respondent did have an original lease and that document was admitted into evidence at petitioner's request, and without objection. The initial rent-stabilized lease is dated July 10, 2017, for a one-year term beginning July 20, 2017 and ending July 31, 2018 at the rent of $1,450 per month. The renewal lease for the period August 1, 2018 through July 31, 2020 is at rent of $1,479 per month.
It is undisputed that respondent paid the rent for April and May 2019 with money orders. It is also undisputed that prior to this court proceeding respondent paid rent by cash only. At trial, petitioner alleged rent arrears of $16,011 due from June 2018 to March 2019 plus June 2019 rent, and submitted a rent ledger in support, showing a balance of $1,250 for June 2018, $1,450 for July 2018, $1,479 per month from August 2018 to March 2019 and $1,479 for June 2019. Petitioner's rent ledger conflicted in part with the amount of rent arrears alleged in the petition. Respondent maintained that he owed only six months of rent, from November 2018 through March 2019 plus June 2019 at $1,479 per month.
Respondent testified that he stopped paying rent in November 2018 because the landlord made it clear that he and his family were no longer wanted as tenants. Respondent testified that petitioner never provided rent receipts, except for the initial payment of the first month's rent and security deposit. Petitioner averred that respondent was given rent receipts for any rent payment made. Both before and during trial, the court provided petitioner the opportunity to produce proper rent receipts or other appropriate documentation concerning the amount of rent paid and owed. Petitioner's witness, managing agent Nezaj Hamdi, testified that the landlord maintained rent records, but that the receipt books were unavailable and instead displayed a handful of various slips of paper, bearing no resemblance to a business record. Petitioner did not attempt to put these items in evidence. Respondent did not raise any other issues at trial.
Real Property Law ("RPL") § 235-e (a) and the Rent Stabilization Code ("RSC") § 2525.2 (b) (2) provide that upon receipt of rent payment by cash or any other form than personal check of the tenant, the landlord has the duty to provide the payor with a written receipt containing the following:
1. The date;
2. The amount;
3. The identity of the premises and the period for which paid; and
4. The signature and title of the person receiving the rent payment.
In addition, RSC § 2525.2 (b)(3) requires that the receipt provided to the rent-stabilized tenant must state the name and New York City address of the property's managing agent or designee thereof, pursuant to section 27-2105 of the Administrative Code of the City of New York. Failure to comply with these provisions of the Rent Stabilization Code constitutes "evasionary" practice. RSC § 2525.2 (b)(3). As respondent is a rent-stabilized tenant, the landlord's failure to provide proper rent receipts would violate both the Real Property Law and the Rent Stabilization Code. See Sharp v. Norwood , 223 AD2d 6, 12 (1st Dept. 1996) ("landlord admittedly never issued rent receipts for tenant's money orders, in clear violation of Real Property Law § 235-e."). Neither the RPL nor the RSC specifically describes the consequence or penalty to the landlord for noncompliance with these sections. However, pursuant to RSC § 2526.2, an aggrieved tenant may file a complaint with the Division of Housing and Community Renewal ("DHCR") seeking enforcement of the Code section. This proceeding is not affected by significant recent changes to housing laws as this matter was commenced and trial concluded prior to enactment of the Housing Stability and Tenant Protection Act of 2019 .
Pursuant to the Housing Stability and Tenant Protection Act of 2019, effective June 14, 2019, RPL § 235-e has been amended and in addition provides:
(b) A lessee may request, in writing, that a lessor provide a receipt for rent paid by personal check. If such a request is made, the lessor, or any agent of the lessor authorized to receive rent, shall provide the lessee with the receipt described in subdivision (a) of this section. Such request shall, unless otherwise specified by the lessee, remain in effect for the duration of such lessee's tenancy. The lessor shall maintain a record of all cash receipts rent for at least three years.
(c) If a payment is personally transmitted to a lessor, or an agent of a lessor authorized to receive rent, the receipt for such payment shall be issued immediately to a lessee. If a payment of rent is transmitted indirectly to a lessor, or an agent of the lessor authorized to receive rent, a lessee shall be provided with a receipt within fifteen days of such lessor or agent's receipt of a rent payment.
(d) If a lessor, or an agent of a lessor authorized to receive rent, fails to receive payment for rent within five days of the date specified in a lease agreement, such lessor or agent shall send the lessee, by certified mail, a written notice stating the failure to receive such rent payment. The failure of the lessor, or any agent of the lessor authorized to receive rent, to provide a lessee with a written notice of the nonpayment of rent may be used as an affirmative defense by such lessee in an eviction proceeding based on the nonpayment of rent.
Here, whether petitioner in fact provided respondent with a receipt for each rent payment is central to the dispute before the court. Based upon the logic and consistency of respondent's testimony and the court's observation of respondent's demeanor on the witness stand, the court finds respondent credible. The only evidence before the court with respect to rent paid and owing is petitioner's inconsistent records, and the contradictory testimony of the parties. Petitioner has not shown that respondent was provided with rent receipts as legally required. Where, as here, the landlord has violated the rent receipt law, and the court finds the respondent credible, the court resolves the material fact in dispute in favor of the tenant. See Robinson v. Robles , 28 Misc 3d 868 (Rochester City Ct. 2010) ; Brinkman v. Cahill , 143 Misc 2d 1048 (Arcadia Just. Ct. 1989) ; Palmieri v. Hernandez , (Mt. Ver. City Ct. 1984).
Based upon the foregoing, the court finds petitioner is entitled to a judgment of possession and for rent arrears in the amount of $8,874, representing arrears due from November 2018 through March 2019 plus June 2019 at $1,479 per month. The warrant may issue five days after service of a copy this order with notice of entry, if respondent has not satisfied the judgment. The parties must pick up their trial exhibits within 30 days from the date of this order in Part S, Room 409, 851 Grand Concourse, Bronx, New York. This constitutes the decision and order of the court.