Opinion
901418/17
04-09-2018
New York Teachers Housing Corporation, Petitioner(s), v. Deydamia Perez, Parking Space LL16 in the Parking Lot Located Between the Buildings 3130 Irwin Avenue Bronx, NY 10463 and 3125 Tibbett Avenue, Bronx, NY 10463, Respondent(s).
Attorney for petitioner: Anderson Kill, PC Pro se respondent: Deydamia Perez
Attorney for petitioner: Anderson Kill, PC Pro se respondent: Deydamia Perez Fidel E. Gomez, J.
The instant summary holdover proceeding is for possession of a parking space leased by petitioner to respondent incident to her residential tenancy within petitioner's housing corporation.
The petition alleges the following: Petitioner owns a parking lot located in between buildings 3130 Irwing Avenue and 3125 Tibbett Avenue, both buildings located within Bronx County. Prior to August 31 2017, petitioner rented Parking Space No. LL16 (LL16) to respondent. At least 30 days prior to the aforementioned date, petitioner served respondent with a Notice of Termination, apprising respondent that petitioner sought to terminate the tenancy, that respondent vacate LL16 no later than August 31, 2017, and that failure to vacate would result in the initiation of the instant summary proceeding. Respondent failed to vacate LL16 and petitioner now seeks a judgment of possession and a warrant of eviction.
On April 3, 2018, this summary proceeding was tried and while petitioner appeared by counsel, respondent appeared and proceeded pro se .
It bears noting that while respondent appeared without counsel, beyond explaining her basic rights - the right to testify, question witnesses, proffer documentary evidence and interpose objections, the Court provided her no additional aid and apprised her that it could not aid or counsel her. While courts will generally accord "pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars" (Stoves & Stones, Ltd. v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). This, of course, is because it is well settled that "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Roundtree v Singh, 143 AD2d 995, 996 [2d Dept 1998]). Accordingly, this Court did not accord pro se respondent any special treatment and held her to the same standards of practice that it held petitioner's lawyer.
At trial, petitioner's position was that it should be granted possession of LL16 because the tenancy was a month-to-month tenancy resulting from the expiration of the last written lease in 2015. Having served respondent with a Notice of termination on July 31, 2017, requiring that respondent vacate LL16 before August 31, 2017, and respondent having failed to move and continuing to occupy LL16, petitioner respondent contended that it was entitled to possession pursuant to RPAPL § 711(1)
Petitioner produced and elicited testimony from Nicholas Dubovici (Dubovici), who testified, in pertinent part, as follows: On the date of trial, Dubovici was a Senior Property Manager, employed by First Service Residential (FSR), a management company who managed 3125 Tibbett Avenue, Bronx, NY (3125) a housing corporation owned by petitioner and within which respondent resided as a shareholder. Dubovici managed 3125 and FSR's staff, who were employed therein. FSR also managed the parking lots adjacent to 3125, within which LL16 was located and which lot was also owned by petitioner. Respondent was a shareholder at 3125, resided therein, and was given a parking space within the lower lot pursuant to a lease. Parking spaces at 3125 were provided to shareholders pursuant to written leases when they became available and based on a shareholder's position on a waiting list. As were all shareholders with parking spaces, respondent was given a remote and key to access the parking lot and to date, she has never surrendered the same.
By stipulation, the Court admitted the last written lease provided to respondent for LL16 (Petitioner's Exhibit 3 in Evidence). The lease, between petitioner and respondent, indicated that respondent was leased LL16 for a term of one year commencing on June 1, 2014 and ending on May 31, 2015. Respondent was obligated to pay $600 for the use of the space over time, in 12 equal monthly installments. Paragraph 8 of the lease indicated that the parking space was a privilege reserved for shareholders.
At petitioner's request, the Court took judicial notice of a Thirty (30) Day Notice of Termination (Notice), dated July 27, 2017 and addressed to respondent. The Notice indicated that petitioner had elected to terminate her tenancy for LL16 and that she was required to vacate LL16 on or before August 31, 2017. The affidavit of service appended to the Notice, of which the Court also took judicial notice indicated that after failing to find anyone at respondent's home on one prior occasion, on July 31, 2017, a copy of the Notice was affixed to respondent's door.
It is well settled that a court can take judicial notice of any and all undisputed court records and files (Khatibi v Weill, 8 AD3d 485, 485 (2d Dept 2004). Indeed, this rule includes the court's own court files and extends to files related proceedings in other courts (MJD Construction, Inc. v Woodstock Lawn & Home Maintenance, 299 AD2d 459, 459 [2d Dept 2002]; Ptasznick v Schultz, 247 AD2d 197, 199 [2d Dept 1998]; Warner v Board of Education of the City of New York, 14 AD2d 300, n1 [1st Dept 1961]). When a court chooses to take judicial notice of records, it obviates a foundation for purposes of admitting said documents in evidence (Bernasconi v Aeon, LLC, 105 AD3d 1167, 1169 [3d Dept 2013]; Lagano v Soule, 86 AD3d 665, 667, n 5 [3d Dept 2011]; Secretary of Dept. of Hous. and Urban Dev. v Torres, 2 Misc 3d 53, 55 [App Term 2003]).
Generally, an affidavit evidencing proper service upon a defendant (or as, here a respondent) is sufficient to support a finding of personal jurisdiction (Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2d Dept 1986]). As such, an affidavit of service is prima facie evidence of proper service (Caba v Rai, 63 AD3d 578, 582-583 [1st Dept 2009]; NYCTL 1998-1 Trust bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004][Defendant negated service of process upon him by citing to the affidavit of service and pointing to the deficiencies therein.]; Scarano v Scarano, 63 AD3d 716, 716 [2d Dept 2009]; Simonds v Grobman, 277 AD2d 369, 370 [2d Dept 2000]).
Respondent testified that she has lived at 3125 for 27 years and has had a parking space at the parking lots adjacent thereto for 25 years. She testified that she needs the parking space because she is disabled and that she is being evicted from the LL16 for other reasons.
Upon due deliberation, taking into account all admissible evidence offered at trial, the Court finds in favor of petitioner and awards a judgment of possession.
It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is accorded great deference (Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]).
Leases are nothing more than contracts and are thus subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff v Truscelli, 110 AD2d 240, 244 [2d Dept 1985]).
It has long been held that absent a violation of law or some transgression of public policy people are free to enter into contracts, making whatever agreement they wish no matter how unwise they may seem to others (Rowe v Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 [1978]). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it (Grace v Nappa, 46 NY2d 560, 565 [1979]). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). Thus, it is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (Vermont Teddy Bear Co., Inc. v 583 Madison Realty Company, 1 NY3d 470, 475 [2004] [internal quotation marks omitted]) Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach, of course, serves to preserve "stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory" (Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks omitted]).
Provided a writing is clear and complete, evidence outside its four corners "as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" (W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 [1990]; see Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]; Mercury Bay Boating Club Inc. v San Diego Yacht Club, 76 NY2d 256, 269-70 [1990]; Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]). Whether a contract is ambiguous is a matter of law for the court to decide (id. at 162; Greenfield at 169; Van Wagner Adv. Corp. v S & M Enterprises, 67 NY2d 186, 191 [1986]). A contract is unambiguous if the language it uses has "definite and precise meaning, unattended by danger of misconception in purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield at 569; see Breed v Ins. Co. of N. Am., 46 NY2d 351, 355 [1978]). Hence if the contract is not reasonably susceptible to multiple meanings, it is unambiguous and the court is not free to alter it, even if such alteration reflects personal notions of fairness and equity (id. at 569-70). Notably, it is well settled that silence, or the omission of terms within a contract are not tantamount to ambiguity (id. at 573; Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]). Instead, the question of whether an ambiguity exists must be determined from the face of an agreement without regard to extrinsic evidence (id. at 569-570), and an unambiguous contract or a provision contained therein should be given its plain and ordinary meaning (Rosalie Estates, Inc. v RCO International, Inc., 227 AD2d 335, 336 [1st Dept 1996]).
In the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello v Swift & Co., 253 NY 159, 162 [1930]; Metzger v Aetna Ins. Co., 227 NY 411, 416 [1920]; Renee Knitwear Corp. v ADT Sec. Sys., 277 AD2d 215, 216 [2d Dept 2000]; Barclays Bank of New York, N.A. v Sokol, 128 AD2d 492, 493 [2d Dept 1987]; Slater v Fid. & Cas. Co. of NY, 277 AD 79, 81 [1st Dept 1950]). In discussing this long standing rule the court in Metzger stated that [i]t has often been held that when a party to a written contract accepts it as a contract he is bound by the stipulations and conditions expressed in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms. This rule is as applicable to insurance contracts as to contracts of any kind. (id. at 416 [internal citations omitted]).
Pursuant to RPAPL § 711 a summary holdover proceeding may be maintained when
[t]he tenant continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord or, in a case where a new lessee is entitled to possession, without the permission of the new lessee. Acceptance of rent after commencement of the special proceeding upon this ground shall not terminate such proceeding nor effect any award of possession to the landlord or to the new lessee, as the case may be. A proceeding seeking to recover possession of real property by reason of the termination of the term fixed in the lease pursuant to a provision contained therein giving the landlord the right to terminate the time fixed for occupancy under such agreement if he deem the tenant objectionable, shall not be maintainable unless the landlord shall by competent evidence establish to the satisfaction of the court that the tenant is objectionable.(RPAPL § 711[1]). Thus, a summary holdover proceeding may be initiated and possession granted when "the landlord . . . allege[s] and prove[s] that the tenant remains in possession after the expiration of his or her term" (Kern v Guller, 40 AD3d 1231, 1232 [3d Dept 2007]; 40 W. 67th St. v Pullman, 296 AD2d 120, 134 [1st Dept 2002], affd sub nom. 40 W. 67th St. Corp. v Pullman, 100 NY2d 147 [2003]; Perrotta v W. Regional Off-Track Betting Corp., 98 AD2d 1, 2 [4th Dept 1983]; see also 3300 Co. v Ryan, 12 Misc 3d 146(A), *1 [App Term 2006] ["In defense of the holdover summary proceeding, tenants failed to establish any right to continue possession of the demised parking space. The record persuasively shows that tenants occupied the parking space pursuant to a month-to-month lease that landlord properly terminated. No claim or showing was made that the parking space was ancillary to tenants' residential tenancy in the building."]).
Upon the expiration of a tenancy governed by a written lease, when the tenant remains in possession and the landlord continues to accept rent, the tenancy becomes a month-to-month periodic tenancy (Park Summit Realty Corp. v Frank, 107 Misc 2d 318, 322 [App Term 1980], affd, 84 AD2d 700 [1st Dept 1981], affd, 56 NY2d 1025 [1982] ["The common-law rule in New York has been modified to the extent that presently only a month-to-month periodic tenancy springs forth from the combination of tenant holdover and landlord acceptance of rent (see Real Property Law, s 232-c). Section 232-a of the Real Property Law requires that to terminate a monthly periodic tenancy, 30 days' notice to the tenant must be provided."]). Significantly, the terms of the month-to-month tenancy, except as to duration, is governed by the same terms as the original written lease which has just expired (id. at 322; see also Baylies v Ingram, 84 AD 360, 362—63 [1st Dept 1903], affd, 181 NY 518 [1905] ["In the absence of any proof upon the subject, there can be no reason for holding that the relations of the parties have changed, so nothing has occurred to break the continuity of the holding, or from which it can be implied that any conditions exist rendering inoperative any of the terms of the lease. Nor do we think that the rule is limited to the relation merely of landlord and tenant in the use and occupation and the payment of rent, so as to exclude the independent covenants from continuing with the other parts of the lease. A holding over, to be upon the same terms as contained in the original lease, carries with it the necessary implication that all of the covenants which became binding by the execution of the lease continue to remain in full force, unless changed conditions appear rendering them inapplicable. We can conceive of no sound reason which would warrant the rejection of any part of the lease upon which the parties agreed. Their relation continued in all respects precisely as if the term had not expired. The holding over constitutes merely an enlargement of the term, and the lease is applied thereto with the same force as though it had been re-executed."]).
Generally, a monthly tenancy may not be terminated unless there is compliance with Real Property Law § 232-a, which states that
[n]o monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.Thus, absent compliance with Real Property Law § 232-a, a tenant "should not be removed unless at least thirty days before the expiration of his term a notice in writing is served upon him in the same manner as a precept in summary proceedings, giving him notice to move when his term expires" (Hecht Co. v Kuerner, 188 Misc 519, 521 [App Term 1947]). Indeed, absent compliance with the foregoing statute no holdover proceeding may be initiated and more importantly, any order issued awarding possession to the landlord is void for the very same reason - want of subject matter jurisdiction (Esposito v Wetzel, 196 Misc 246, 251 [App Term 1949]; Palumbo v Donalds, 194 Misc 2d 675, 678 [Civ Ct 2003]; Ohday Realty Corp. v Lupone, 192 Misc 2d 317, 318 [Civ Ct 2002]; Rosen v Wade, 99 Misc 2d 1114, 1115 [Civ Ct 1979]; Beach Haven Apartments No. 4, Inc. v Volf, 97 Misc 2d 824, 826 [Civ Ct 1979]).
It is well settled that a landlord may not seek to evict a tenant from residential premises nor may decline to renew a lease as retaliation for certain activities. Specifically, Real Property Law 223-b states that
[n]o landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for. . . [a ]good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or . . . [a]ctions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or . . . [t]he tenant's participation in the activities of a tenant's organization. [Moreover,] . . . [n]o landlord or premises or units to which this section is applicable shall substantially alter the terms of the tenancy in retaliation for any actions set forth in paragraphs a, b, and c of subdivision one of this section. Substantial alteration shall include, but is not limited to, the refusal to continue a tenancy of the tenant or, upon expiration of the tenant's lease, to renew the lease or offer a new lease; provided, however, that a landlord shall not be required under this section to offer a new lease or a lease renewal for a term greater than one year and after such extension of a tenancy for one year shall not be required to further extend or continue such tenancy.Accordingly, while a landlord can evict a tenant for a violation of the relevant lease's terms and initiate a holdover proceeding for such violations (Walentas v Johnes, 257 AD2d 352, 354 [1st Dept 1999] ["Similarly, with respect to the counterclaim for retaliatory eviction pursuant to Real Property Law § 223—b, we note that the various actions commenced by plaintiff each had a sound legal foundation. For example, in 1982, plaintiff commenced a holdover proceeding alleging violation of a lease provision prohibiting roommates. We note that this action preceded the enactment of the Omnibus Housing Act construing any rental agreement to permit occupancy by one additional occupant, and it cannot be said that the proceeding was so completely devoid of merit as to be undeniably attributable to retaliatory motive" (internal citations and quotations marks omitted)]), the statute proscribes eviction precipitated by the activities within the foregoing statute (601 W. 160 Realty Corp. v Henry, 183 Misc 2d 666, 672 [Civ Ct 2000], affd, 189 Misc 2d 352 [App Term 2001] [proscribing eviction retaliatory eviction for respondent's engagement in protected acts, i.e., serving as president of the tenant's association.]).
Significantly, while Real Property Law § 223-b does not apply to commercial tenancies (Tirse v Andrews, 128 AD3d 1112, 1114 [3d Dept 2015]; Lazy Acres Park, LLC v Ferretti, 118 AD3d 1406, 1407 [4th Dept 2014]), it has been held to apply to parking spaces incident to residential leases (Raderman v Talia Mgt. Co., 170 Misc 2d 622, 624 Ct 1996 ).
Here, at trial, petitioner established entitlement to a judgment of possession under RPAPL § 711(1). Significantly, a summary holdover proceeding may be initiated and possession granted upon proof that the tenant remains in possession after the expiration of his or her term" (Kern at 1232; 40 W. 67th St. at 134; Perrotta at 2; 3300 Co. at *1). No judgment, shall be granted, however, unless there has been compliance - to the extent relevant here - with Real Property Law § 232-a, requiring that a landlord serve a tenant with a notice of termination (id.; Hecht Co. at 521 [App Term 1947]). At trial, petitioner's evidence, both documentary and via Dubovici's testimony established that the tenancy at issue was governed by a written lease until 2015, but that thereafter, no written leases were issued to respondent. Thus, here, Real Property Law § 232-a is implicated, because while there once was a written lease governing the tenancy, it was never formally renewed after 2015, thereby giving rise to a month-to-month tenancy (Park Summit Realty Corp. at 322; Baylies at 362—63). Dubovici further testified that despite the Notice served upon respondent - which required her to vacate LL16 on or before August 31, 2017 - she never vacated and never relinquished the key and remote provided to her. Thus, petitioner establishes entitlement to a judgment of possession under RPAPL § 711(1) (3300 Co. at *1).
Nothing about which respondent testified precludes judgment in petitioner's favor. Significantly, there is no merit to respondent's contention that because she is disabled, she is entitled to a parking space within petitioner's parking lot. Equally unavailing is respondent's intimation that petitioner was required to renew her lease simply because she was a shareholder within the premises abutting the parking lot. To be sure, leases are nothing more than contracts and are, thus, subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff v Truscelli, 110 AD2d 240, 244 [2d Dept 1985]). Here, there is nothing in the relevant lease requiring that petitioner renew respondent's lease nor is there any indication that respondent's status as a shareholder requires the same. Accordingly, because "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (Vermont Teddy Bear Co., Inc. at 475 [internal quotation marks omitted]), and "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569), the Court finds no merit to respondent's contention that petitioner must renew her lease.
A review of the record demonstrates that respondent was frustrated at her inability to present her case in the manner of her choosing. However, as the Court repeatedly mentioned, she was bound by the rules of evidence and any impediment to presenting her case was solely the result of her lack of knowledge of the rules evidence (particularly her inability to lay foundations for her documentary evidence). As a result, during her case in-chief, respondent drew petitioner's objections, which objections the Court was constrained to sustain. --------
Respondent's conclusory claim that she is being evicted for anterior motives does not bring this within the ambit of Real Property Law § 223-b, which proscribes evictions precipitated by certain enumerated activities within the statute (601 W. 160 Realty Corp. at 672). While, Real Property Law § 223-b has been held to apply to parking spaces incident to a residential lease (Raderman at 624), there is simply no evidence that respondent engaged in the requisite protected activity and that even if she did, her eviction was in retaliation for the same.
Lastly, respondent never challenged receipt of the Notice, which could have availed her (Esposito at 251; Palumbo at 678; Ohday Realty Corp. at 318; Rosen at 1115; Beach Haven Apartments No. 4, Inc. at 826). It is hereby
ORDERED that a judgment of possession is granted in petitioner's favor and that the warrant of eviction issue within thirty days (30) hereof. It is further
ORDERED that petitioner serve a copy of this Decision and Order with Notice of Entry upon respondent within ten days (10) hereof.
This constitutes this Court's decision and Order. Dated: April 9, 2018 Hon. Fidel E. Gomez, JCC