Opinion
8901/19
10-10-2019
3510 REALTY CORP., Petitioner, v. Mirna MATOS, "John Doe" & "Jane Doe," Respondents-Tenants.
HERTZ, CHERSON & ROSENTHAL, P.C., Attorneys for Petitioner, 118-35 Queens Blvd., 9th Floor, Forest Hills, New York 11375 BRONX LEGAL SERVICES, Attorneys for Respondent, Attn: Nicole Kalum, 349 East 149th Street, 10th Floor, Bronx, New York 10451
HERTZ, CHERSON & ROSENTHAL, P.C., Attorneys for Petitioner, 118-35 Queens Blvd., 9th Floor, Forest Hills, New York 11375
BRONX LEGAL SERVICES, Attorneys for Respondent, Attn: Nicole Kalum, 349 East 149th Street, 10th Floor, Bronx, New York 10451
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion [With Exhibits A-K & Memorandum of Law] 1
Affirmation in Opposition [With Exhibit 1] 2
Reply Affirmation 3
Court Files: Index No. 87878/2006 & 71407/2017 4, 5
After oral argument held on October 2, 2019, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
This is a summary holdover proceeding wherein 3510 Realty Corp. ("Petitioner") seeks possession of 3510 Decatur Avenue, apt. 5B, Bronx, NY ("subject premises") based on allegations of chronic rent delinquency. The December 27, 2018 Notice of Default recites, by varying degrees, the details of eleven separate non-payment proceeding commenced against respondent over the past thirteen (13) years.
The "oldest" index number is 87878/2006.
This matter first appeared on the court's calendar on February 28, 2019. On or about April 29, 2019 respondent obtained counsel through the Universal Access to Counsel program ("UAC") and motion practice ensued. Respondent now seeks dismissal of the proceeding pursuant to CPLR § 3211(a)(1) and § 3211(a)(7) for failure to state a cause of action.
The Notice of Default alleges Mirna Matos ("Respondent") has violated a substantial obligation of her lease by failing to pay rent timely. The January 18, 2019 Notice of Termination incorporates the Notice of Default by reference. Both predicate notices refer to Rent Stabilization Code § 2524.3(a) and § 2524.3(b) ; however, the word "nuisance" is not mentioned in either notice, nor are any facts, other than details from the prior non-payment proceedings, offered.
DISCUSSION
On a motion to dismiss under CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v. Martinez , 84 NY2d 83, 87, 614 NYS2d 972 [1994] ; Breytman v. Olinville Realty, LLC , 54 AD3d 703, 703-704, 864 NYS2d 70 [2nd Dept 2008] ). Thus, "a motion to dismiss made pursuant to CPLR § 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" ( Shaya B. Pac. LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2nd Dept 2006] ; see Leon v. Martinez , 84 NY2d at 87-88 ).
The Nuisance Claim
Respondent first argues that petitioner has failed to properly plead a cause of action for nuisance. She asserts that the predicate notices "fail to provide any facts whatsoever that allege Respondent willfully, unjustifiably, or intentionally harassed the landlord."
Kallum August 5, 2019 affirmation at par. 18.
"A nuisance has been found to have been committed if it can be determined that the tenant chronically, and unjustifiably, refused to pay the rent when due and that as a result, the landlord was compelled to bring numerous nonpayment proceedings within a relatively short period of time." ( Sharp v. Norwood , 223 AD2d 6, 9, 643 NYS2d 39 [1st Dept 1996] ; 25th Realty Associates v. Griggs , (150 AD2d 155, 540 NYS2d 434 [1st Dept 1989] ) (eleven nonpayment proceedings brought in six years sufficient to state a cause of action)).
The leading cases hold that a landlord must show the tenant's conduct was "willful, unjustified ... or accompanied by an intent to harass the landlord." ( Sharp v. Norwood , 223 AD2d at 10 ). However, the leading appellate cases do not discuss predicate notices.
The history of Sharp v. Norwood is instructive. In Norwood , the Housing Part dismissed the chronic rent delinquency holdover, holding that petitioner failed to state a claim for nuisance. However, the Appellate Term reversed, holding that chronic late payment and non-payment of rent can constitute a nuisance if not adequately explained by the tenant. After a trial, the Housing Part again dismissed the proceeding and Appellate Term affirmed the trial courts holding that petitioner did not prove any conduct rising to the level of nuisance. The Court of Appeals affirmed noting that it was petitioner's burden to establish respondent's behavior interfered with the use or enjoyment of the property. The Court did not address any deficiency with the pleadings, but rather the lack of proof at trial. ( 89 NY2d 1068, 659 NYS2d 834 [1997] ).
In Green v. Stone , the Appellate Division, First Department, stated, "in view of respondent's alleged chronic late payment and nonpayment of rent, which petitioner claims necessitated repeated resort to legal process, including nonpayment and holdover actions, respondent's possession of the subject premises may constitute a nuisance warranting eviction if not adequately explained by the tenant." ( 160 AD2d 367, 368, 553 NYS2d 421 [1st Dept 1990] ). The Stone court reversed the civil court's after trial dismissal, finding that the landlord had established three nonpayment proceedings in the previous three years. In 25th Realty Associates v. Griggs , the Appellate Division, First Department, held, "[w]e think the frequency with which the landlord has had to resort to legal proceedings to extract rent, combined with the tenant's failure to prevail in any of these proceedings, sufficient to constitute a prima facie case." ( 150 AD2d at 156 [1st Dept 1989). This reasoning implies that the multiple proceedings commenced in a short time lays out a prima facie showing whether or not additional facts are alleged in a predicate notice. (but cf. Carol Management Corp. v. Mendoza , 197 AD2d 687, 602 NYS2d 941 [2nd Dept 1993] (dismissal appropriate where the notice of termination and holdover petition failed to allege additional aggravating circumstances as would sustain a claim of nuisance)).
In Carol Management Corp. v. Mendoza , the Second Department acknowledges a conflict with the First Department's holdings in Stone and Griggs .
As such, respondent's motion to dismiss the nuisance cause of action is denied. The predicate notice cites to RSC § 2524.3(b) and the facts alleged conceivably support the cause of action (see Oxford Towers Co., LLC v. Leites , 41 D3d 144, 837 NYS2d 131 [1st Dept 2007] ) and respondent has the ability to frame a defense. (see Jewish Theological Seminary of America v. Fitzer , 258 AD2d 337, 338, 685 NYS2d 215 [1st Dept. 1999] ).
Substantial Obligation of the Tenancy
It is well settled that 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. ( Adam's Tower Ltd. Partnership v. Richter , 186 Misc. 2d 620, 621, 717 NYS2d 825 [1st Dept. 2000] ).
Respondent challenges the RSC § 2524.3(a) claim on two grounds: first, that many of the predicate nonpayment proceedings are barred from consideration pursuant to a statue of limitations, and that the remaining proceedings cannot be considered due to respondent's bona fide defenses and counterclaims.
The court first addresses the statute of limitations argument. Respondent posits that any proceeding commenced more than six years ago must not be considered. This is a fundamental misunderstanding of statute of limitations law. The statute of limitations begins to run when a claim has accrued; it does not automatically sever any action more than six years old. ( Flatbush Builders, Inc. v. Dubresil , 57 Misc 3d 456, 460, 60 NYS3d 644 [Civ Ct, Kings County 2017], quoting the Hon. Peter Wendt in Chelsea Realty Development Corp. v. Couceiro, et. al. [Civ. Ct., New York County, Oct. 1, 2015, index no. 84549/14] (unreported decision) ("the statute of limitations could constitute a defense to this proceeding if petitioner's cause of action for chronic nonpayment were found to have accrued, but not continued, more than six years prior to the commencement of this proceeding"); ( Kalaja Realty LLC v. Morel , 56 Misc. 3d 1210[A], 2017 NY Slip Op. 50931[A] [Civ Ct, New York County 2017] ; Westminster Properties Ltd. v. Kass , 163 Misc. 2d 773, 775, 624 NYS2d 738 [App Term, 1st Dept. 1995] (statute of limitations is measured from when the claim accrues)).
There is no appellate authority supporting respondent's position. In fact, several appellate decisions implicitly permit the use of predicate proceedings commenced more than six years prior to the chronic rent delinquency holdover. (see Riverton Assoc. v. Garland , 13 Misc 3d 133[A], 2006 NY Slip Op 51982[U] [App Term, 1st Dept 2006] (9 non-payment proceedings over a 10-year period); Terrilee 97th St. LLC v. Alaharzi , 53 Misc. 3d 151[A], 2016 NY Slip Op. 51694[U] [App Term, 1st Dept. 2016] (9 non-payment proceedings over 16 year period considered); 31-67 Astoria Corp v. Cabezas , 55 Misc. 3d 132[A], 2017 NY Slip Op. 50432[U] [App Term, 2nd Dept 2017] (payment history dating to 2004 considered)). Respondent does not argue that petitioner failed to act on a claim that accrued more than six years ago. As such, this court finds that non-payment proceedings commenced more than six-years prior to the date this proceeding was commenced are not time barred.
Secondly, whether respondent had bona-fide defenses to the prior proceedings remain questions of fact. (see Zevrone Realty Corp. v. Gumaneh , 51 Misc 3d 142[A], 2016 NY Slip Op. 50653[U] [App Term, 1st Dept 2016] ) (tenant not entitled to dismissal pursuant to CPLR § 3211(a)(1), since the documentary evidence submitted did not conclusively establish as a matter of law (see Leon v. Martinez , 84 NY2d at 88 ) that tenant was justified in withholding rent during some or all of the relevant time periods)). Without conclusive proof that rent was withheld specifically because the tenant sought the opportunity to interpose a warranty of habitability defense, this pre-trial motion must be denied. ( Kalaja Realty LLC v. Morel , 56 Misc 3d 1210[A] at *4, 2017 NY Slip Op 50931[A] [Civ. Ct., New York County 2017] ); see also GIT LEB, LLC v. Golphin , 51 Misc 3d 144[A], 2016 NY Slip Op 50713[U] [App Term, 2nd Dept 2016] ).
The court is only in receipt of two court files for the prior non-payment proceedings, bearing index numbers 87878/2006 and 71407/2017. In the 2006 matter, respondent paid the arrears on the first court appearance and the proceeding was discontinued. Though the pro-se answer alleges conditions in need of repair, the January 17, 2007 stipulation does not mention repairs. There is no indication respondent withheld rent due to conditions in the apartment.
In the 2017 proceeding, petitioner obtained a possessory judgment based on respondent's failure to answer. On March 22, 2018, respondent executed a stipulation wherein the warrant was stayed through April 30, 2018 for respondent to pay $4172. The stipulation lists repairs as well, but there is no indication that respondent was withholding the rent until repairs were addressed. The May 16, 2018 Order, which afforded respondent further time to pay arrears, notes, "Respondent is seeking participation in the FHEPS program." This language suggests respondent was not withholding rent, but rather that she did not have it. Further time to make full payment was stipulated on July 10, 2019. There was no indication that payments were withheld due to repairs. The August 23, 2018 Order of the court again afforded respondent additional time to pay rent arrears. Once again, there is no indication respondent was withholding rent due to repairs. In fact, the Order states respondent "is on track to receive FHEPS benefits to preserve this 12 year tenancy." This strongly suggests that the arrears were not available. On October 17, 2018, the court further stayed execution of the warrant for payment of rent arrears. The Order notes that payments made in court were from Coalition for the Homeless and from Jewish Community Counsel. This suggests respondent did not withhold payment due to repairs. On November 29, 2018, the matter was discontinued. The stipulation notes that HELPUSA/HOMEBASE paid $1308.74 on respondent's behalf on or about November 29, 2018. This again suggests that respondent did not withhold rent due to repairs, but rather that she could not pay due to financial reasons. (see GIT LEB, LLC v. Golphin , 51 Misc. 3d 144[A] ).
From respondent's exhibits, it appears that respondent entered into a final judgment stipulation under index no. 15681/2014 (exhibit F). She also signed an affidavit on May 14, 2014 indicating she was requesting a loan to help pay arrears. This indicates she did not have the funds available. Respondent's April 7, 2016 answer under index no. 19327/16 notes "LOSS OF INCOME" which at least suggests respondent may not have had the ability to pay the rent. Even if the other predicate proceedings did not exist, the 2014, 2016, and 2017 proceedings are sufficient to withstand a CPLR § 3211(a)(7) motion. (see Ludor Properties LLC v. Brooks , 33 Misc 3d 139[A], 2011 NY Slip Op 52125[U] [App Term, 1st Dept 2011] ); Green v. Stone, supra ).
The fact that petitioner agreed to do repairs in prior proceedings is not dispositive. ( Golphin , 51 Misc. 3d 144[A] at *2 ). The dispositive issue is whether bona-fide habitability defenses caused the tenant to withhold rent. ( 156 East 37th Street LLC v. Eichner , 62 Misc. 3d 1216[A], 2019 NY Slip Op. 50146[U] [Civ. Ct., New York County 2019] ; Zevrone Realty Corp. v. Gumaneh , 51 Misc. 3d 142[A] )). These issues of fact require a trial. Consequently, the branch of respondent's motion seeking to dismiss the petition pursuant to CPLR § 3211(a)(7) on the ground that it fails to state a cause of action, is denied.
The court notes that Hudson St. Equities v. Circhi , 9 Misc 3d 138[A], 2005 NY Slip Op 51764[U] [App Term, 1st Dept 2005], upon which respondent relies, was an after-trial decision.
CONCLUSION
Based on the foregoing, it is So Ordered, respondent's motion to dismiss the proceeding is denied in all respects. Respondent is directed to file an answer by October 30, 2019. The proceeding is adjourned to November 6, 2019, 9:30 a.m., Part F, Room 320 for all purposes.
SO ORDERED,
Bronx, NY
October 10, 2019
SHORAB IBRAHIM, JHC