Opinion
No. L & T 065437/2013.
10-27-2014
1975 REALTY ASSOCIATES, LLC, Petitioner–Landlord, v. Anna CASTELLANOS, Respondent–Tenant.
Janet Goldstein, Esq., Rappaport, Hertz, Cherson & Rosenthal, P.C ., Forest Hills. Kristen Drumm, Esq., Legal Services NYCBronx, Bronx.
Janet Goldstein, Esq., Rappaport, Hertz, Cherson & Rosenthal, P.C ., Forest Hills.
Kristen Drumm, Esq., Legal Services NYCBronx, Bronx.
Opinion
JAVIER E. VARGAS, J.
Upon the foregoing papers and for the following reasons, the motion by Respondent Anna Castellanos (“Tenant”), for, inter alia, an order dismissing the instant chronic rent delinquency holdover proceeding, is denied in part, and the matter is hereby referred for an immediate trial.
Pursuant to a Lease Agreement dated May 1, 1986, Tenant has resided in the subject rent-stabilized apartment in building premises, known as 1975 Davidson Avenue, Apt. 1–E, in the Bronx, New York, which are owned and managed by Petitioner 1975 Realty Associates, LLC (“Landlord”). During Tenant's 28–year tenancy, she raised her three sons at the Premises, and allegedly endured the horrors of domestic violence for several years. It appears that her abusive relationship scarred her with Post–Traumatic Stress Disorder and major depressive disorder, entitling her to SSI disability benefits and maintenance payments from her now ex-husband. Although she faced financial challenges, Tenant has been generally able to pay the monthly rent of $875.80 at the beginning of each month with her maintenance payments, SSI benefits and contributions from her adult children.
However, on September 19, 2013, Landlord served upon Tenant a Notice of Default alleging that she had violated a substantial obligation of her Lease by failing to pay the rent in a timely manner, and causing the Landlord to commence eight separate legal proceedings for the non-payment of rent against her at the Bronx Housing Court in recent years, under Index numbers: 30971/2006, 058568/2007, 10454/2009, 068829/2009, 050360/2010, 002957/2012, 040876/2012 and 038220/2013, thereby requiring the immediate termination of her tenancy effective October 10, 2013. When Tenant refused to vacate, Landlord served upon her a Notice of Termination, dated October 11, 2013, terminating her tenancy and affording her until October 31, 2013 to vacate the Premises, or face an eviction proceeding. Tenant did not vacate on the aforementioned date.
As a result, by Notice of Petition and Petition dated November 4, 2013, Landlord commenced the instant chronic rent delinquency holdover proceeding against Tenant to recover possession of the premises, a judgment of rent arrears, and the payment of use and occupancy during the pendency of the proceeding, alleging that she has chronically failed to timely pay the rent and prompted the expiration of her Lease effective October 31, 2013. The Petition asserted that the Premises are subject to the Rent Stabilization Laws of 1969 and the Rent Stabilization Code, and have been duly registered with the New York State Division of Housing and Community Renewal. On the first court appearance date, the matter was adjourned for Tenant to obtain legal counsel and she eventually secured the Legal Services of NYC—Bronx to defend her in this proceeding. An Answer was thereafter filed on April 30, 2014, denying some of the allegations in the Petition, raising an objection in point of law as to the sufficiency of the predicate nonpayment proceedings to establish chronic nonpayment, and interposing several Affirmative Defenses, inter alia: that the Statute of Limitations bars inclusion of proceedings commenced prior to the six-year limitation period and that there are warranty of habitability issues.
By Notice of Motion returnable June 25, 2014, Tenant now moves for an order granting summary judgment in her favor pursuant to CPLR 3212, and dismissing the proceeding, arguing that Landlord has failed to state a prima facie cause of action for breach of a “substantial obligation of her tenancy” based on chronic nonpayment of the rent (Rent Stabilization Code [9 NYCRR] § 2524.3[a] ), and seeking dismissal of that part of the Petition which asserts untimely predicate claims barred by the six-year Statute of Limitations embodied in CPLR 213(2). In support of her Motion, Tenant argues that Landlord cannot rely on nonpayment proceedings commenced against her over six years prior to this proceeding, nor on the other legal proceedings which were either settled by Stipulations of Settlement and/or containing repairs and habitability issues. In sum, Tenant argues that Landlord cannot characterize her as chronically delinquent and that the Petition should be dismissed.
In opposition, Landlord counters that its Predicate Notice and Petition sufficiently state a cause of action for a material obligation breach and that triable issues of fact exist as to the basis of the chronic nonpayment holdover proceeding. Specifically, Landlord argues that the prior proceedings were necessitated by Tenant's failure to timely pay the rent arrears only because she lacked the financial wherewithal to cover the rent, not because she was withholding the rent due to habitability or repairs issues. Supporting its arguments, Landlord provides documentary evidence and an affidavit from the Premises agent, Ivette Moss, who affirms, among other things, that Tenant had never provided notice to her office of any habitability issues in her apartment prior to the commencement of the several nonpayment proceedings, and that she has never obtained a rent abatement in those proceedings. This Court agrees with Landlord in part.
“A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation' of the tenancy” (Adams Tower Ltd. Partnership v. Richter, 186 Misc.2d 620, 621–622 [AT 1st Dept 2000], citing Sharp v. Norwood, 89 N.Y.2d 1068, 1069 [1997] ; see Hudson St. Equities v. Circhi, 9 Misc.3d 138[A], 2005 N.Y. Slip Op 51764[U] [AT 1st Dept] ). The instant proceeding was brought on the ground that Tenant's long-term, “chronic and systematic” delinquency in timely paying her rent as it became due breached a substantial leasehold obligation (see Rent Stabilization Code § 2524.3[a] ). The number and frequency of nonpayment proceedings are not the only criteria judicially considered when determining whether a substantial obligation has been violated since “the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent” (Greene v. Stone, 160 A.D.2d 367, 368 [1st Dept 1990] ; see Mins Court Hous. Co. v. Wright, 42 Misc.3d 1214[A], 2014 N.Y. Slip Op 50034[U] [NYC Civ Ct [2014] ). The breach must also be firmly documented in the record either by the absence of bona fide habitability claims or any dispute as to the amount of rent owed raised during the proceedings (see Adams Tower Ltd. Partnership v. Richter, 186 Misc.2d at 620 ). “A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency” (id. [nine nonpayment proceedings in three years]; see 2564 Co. v. D'Addario, 35 Misc.2d 176 [AT 1st Dept 1961] [eleven nonpayments in almost two years] ).
Applying these legal principles to the matter at bar, Tenant has failed to sufficiently demonstrate entitlement to summary judgment in her favor based on the absence of triable issues of fact regarding Landlord's chronic delinquency claim. Landlord roots its chronic rent delinquency holdover claim against Tenant on her repeated failure to pay the rent on time, and its concomitant need to commence eight separate nonpayment proceedings against her in the past seven years. As a threshold matter, however, Tenant is correct that out of the eight proceedings relied upon by Landlord in bringing this proceeding, two should be barred from consideration herein under the Statute of Limitations in CPLR 213(2), as having been commenced more than six years prior to this contractual proceeding, to wit: Index Nos. 030971/2006 and 058568/2007 (see Westminster Props. Ltd. v. Kass, 163 Misc.2d 773, 774 [AT 1st Dept 1995] ). As such, Tenant's motion for summary judgment is partially granted dismissing any consideration of those time-barred proceedings prior to 2008 (see Mins Court Hous. Co. v. Wright, 42 Misc.3d 1214[A] ).
Only the six additional proceedings against Tenant can be legally relied upon in examining the sufficiency of the Landlord's claim of chronic rent delinquency. In particular, the two 2009 nonpayment proceedings commenced against Tenant under Index Nos. 010454/2009 and 068829/2009, were both settled on their first court appearances of March 23, 2009 and December 23, 2009, respectively, by so-ordered Stipulations of Settlement, wherein Tenant consented to the entry of final judgments and payment schedules, without any mention of habitability or repairs issues. It was only after Tenant's subsequent Order to Show Cause asking for more time to pay based on domestic violence allegations, that the Court apparently sua sponte added repairs and access dates to the proceeding. At no time were repairs mentioned in the second 2009 proceeding. Similarly, no repair issues were mentioned in the two initial Stipulations of Settlement, dated September 27, 2010 and December 10, 2010, respectively, settling the 2010 nonpayment proceeding under Index No. 050360/2010. Thereafter, for the first time, repairs were mentioned following an Order to Show Cause in a Stipulation dated January 11, 2011, giving her additional time to pay and setting access dates for repairs in that proceeding.
It is true, though, that Tenant commenced a Housing Part proceeding against the Landlord in 2011, but she then waited until the commencement of the subsequent 2012 nonpayment proceeding by Landlord under Index No. 02957/2012, to pay her rent on its return date of January 24, 2012 and to schedule access dates for unspecified repairs. While Tenant did allege the need for repairs to her apartment in the case under Index No. 40876/2012, it took her from the commencement of the case in July 2012 until December 2012 to completely pay her arrears and for the case to be discontinued. There was no mention of repairs other than in the first Stipulation of that proceeding. Finally, the 2013 nonpayment proceeding was answered and settled by a Stipulation of Settlement requiring repairs. In the course of that proceeding, an HPD inspection was scheduled which recorded nine violations in the apartment.
Under these factually intense circumstances, although Tenant has preliminarily demonstrated that most of the nonpayment proceedings were not so unjustified as to warrant a lease violation finding (see Bennett v. Mentis, NYLJ, September 13, 2000, at 22, col 1 [AT 1st Dept 2000] ), Landlord has raised triable issues of fact supporting its chronic rent delinquency claim against Tenant. Via admissible evidence, Landlord has sufficiently demonstrated that Tenant's failure to pay rent in those proceeding was prompted mostly—if not, solely—by her lack of funds. Contrary to her arguments, Tenant's habitability claims would not appear to have clearly “precipitate[d] the withholding of rent” (Hudson St. Equities v. Circhi, 9 Misc.3d 138[A] ), but rather were never mentioned or seemed to have been an afterthought raised during the pendency of the proceedings. It is up to the trial court to determine whether Landlord has alleged enough frequency and number of proceedings to show that Tenant has substantially violated a material obligation of her 28–year tenancy.
In accordance with the foregoing, Tenant's motion for summary judgment dismissing the instant chronic rent delinquency proceeding is denied, and the matter is hereby referred for an immediate trial to the Trial Part on November 10, 2014 at 9:30 a.m. That portion of Tenant's motion seeking dismissal of claims outside the statutory period is granted. The foregoing constitutes the decision and order of the Court.