Opinion
Index No. 151602/2022 MOTION SEQ. No. 002
01-16-2024
71 WASHINGTON PLACE OWNERS, INC., Plaintiff, v. NORMAN RESNICOW, BARBARA RESNICOW Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
Joel M. Cohen Judge:
HON. JOEL M.COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 52, 53, 54, 55, 56, 57,58,59,60,61, 108, 118, 120, 165, 166,213,214,215 were read on this motion for PAYMENTS PENDENTE LITE
This is an ejectment action brought by Plaintiff 71 Washington Place Owners, Inc. (the "Co-op" or "Plaintiff) against shareholder-tenants Defendants Norman and Barbara Resnicows (the "Resnicows" or "Defendants"). In this motion, the Co-op requests that the Resnicows pay their existing rent arrears, ongoing maintenance at the current rate of $4,780.80, plus the reoccurring assessment in the sum of $938.09, from June 1, 2023, and on the first day of each month thereafter, pendente lite. This motion is granted.
Real Property Law §220 provides, in its pertinent part, the following: "The landlord may recover a reasonable compensation for the use and occupation of real property..." (RPL §220). It is well-settled that the Court has broad discretion to award a landlord rent and/or use and occupancy pendente lite when the premises is being used and occupied during the pendency of an action (see Eli Haddad Corp. v Cal Redmond Studio, 102 A.D.2d 730, 731 [1st Dept 1984], quoting Lipkis v Pikus, 99 Misc.2d 518, 520 [App Term 1979], affd, 72 A.D.2d 697 [1st Dept 1979] ["Having entered into possession fully cognizant of the existing realities, tenants should not now be permitted to reap the benefits of occupancy and, at the same time, avoid the payment of rent"]; see also 43rd St. Deli, Inc. v Paramount Leasehold, L.P., 107 A.D.3d 501 [1st Dept 2013] [landlord granted use and occupancy during pendency of action]).
Pursuant to the Proprietary Lease, Defendants are obligated to pay monthly rent (or maintenance) in equal monthly installments in advance on the first day of each month without any offset or deduction (see NYSCEF 9, Art. 12 ["The Lessee will pay the rent to the Lessor upon the terms and at the times herein provided, without any deduction on account of any setoff or claim which the Lessee may have against the Lessor."]). Article 32(a) of the Proprietary Lease provides that Defendants continue to be responsible for Rent notwithstanding any termination of their tenancy (id. At ¶ 32[a]). Plaintiff submits that the Maintenance for the Premises is currently $4,780.80 per month, and Defendants do not dispute the amount sought by the Co-op for the Rent Arrears or ongoing maintenance.
Defendants are also required to pay their pro rata share of any special maintenance charge ("Special Assessment") (id., Art. 1 ["The Lessee shall also pay the Lessee's pro rata share (determined in the same manner as maintenance) of any special maintenance charge that may be levied by the Lessor from time to time to pay for any repair, alteration, or improvement to the corporate property, or any deficit from operations for a prior period, or other cash requirements. Such special maintenance charge shall be deemed additional rent and shall be payable in a lump sum or in periodic installments as the Directors shall determine."]). Plaintiff submits that in accordance with Article 1 of the Proprietary Lease, the Co-op has imposed an assessment to be paid by all shareholders, and Defendants' proportionate share of the Assessment is $938.09 per month. Defendants do not dispute this amount, rather Defendants argue that they should not have to pay any of the Special Assessment due to Defendants' allegations of disparate treatment and violations of the implied warranty of habitability. However, this claim is not supported. Defendants have not pointed to a provision of the Proprietary Lease that provides them with a right to offset the Special Assessment for allegations of defective conditions in the Premises. Rather, the Proprietary Lease states that Defendants must pay the Maintenance and Assessment on the first day of each month "without any deduction on account of any set-off or claim which the Lessee may have against the Lessor." (NYSCEF 9, ¶¶1 and 12). Nor have Defendants cited any case law that supports their position.
Finally, the Co-op seeks a late fee in accordance with a late fee policy adopted by the Coop (see NYSCEF 9, Art 12 ["The Directors have the right to assess a late charge if the Lessee shall fail to pay any installment of rent promptly, and to assess a charge for a "dishonored check" from the Lessee, such charges and period of time after which a payment shall be deemed late to be determined by the Directors in their sole discretion. Any such additional charges shall be deemed additional rent hereunder."]). However, Plaintiff has not demonstrated that charging Defendants a late fee is appropriate here, particularly since Defendants attempted to pay rent on several occasions, which was previously raised in Defendants' motion to dismiss (NYSCEF 41 [Decision and Order on Mot. Seq. 001]). Therefore, the request to charge the Resnicows a late fee is denied.
Accordingly, it is
ORDERED that Plaintiffs motion for use and occupancy pendente lite is GRANTED IN PART; it is further
ORDERED that Plaintiff file an affidavit with supporting documentation outlining the past-due use and occupancy, ongoing maintenance, and the reoccurring assessment currently owed by Defendants, without any late fees; and it is further
ORDERED that Defendants must pay Plaintiff all future use and occupancy, on the first day of each month thereafter, pendente lite.
Summary judgment on this issue will be addressed in this Court's Decision and Order on Mot. Seq. 003 and 004.