Opinion
No. L & T 68504/14.
09-12-2014
A.L. HOLDINGS INC., Petitioners–Landlord v. Todd MONTANEZ, Respondent–Tenant.
Sperber, Denenberg & Kahan, P.C. by Steven Sperber, Esq., New York City, Attorneys for Petitioner. Todd Montanez, New York City, Respondent Pro Se.
Sperber, Denenberg & Kahan, P.C. by Steven Sperber, Esq., New York City, Attorneys for Petitioner.
Todd Montanez, New York City, Respondent Pro Se.
Opinion
SABRINA B. KRAUS, J.
This summary nonpayment proceeding was commenced by AL HOLDINGS INC. (Petitioner) and seeks to recover possession of Apartment 4C at 833 MADISON AVENUE, NEW YORK, N.Y. 10032 (Subject Premises) based on the allegation that TODD MONTANEZ(Respondent) the rent stabilized tenant of record, had failed to pay rent due for the Subject Premises.
PROCEDURAL HISTORY
Petitioner issued a three day rent demand dated May 22, 2014, seeking rent for April and May 2014 at a monthly rent of $1,227.86. The Petition and Notice of Petition issued on June 18, 2014, proof of service was filed July 9, 2014. Respondent filed an answer on July 15, 2014, asserting a breach of warranty of habitability and harassment. Respondent asserted a counterclaim based on breach of warranty of habitability for $3888.22.
The proceeding was initially returnable on July 23, 2014. On September 9, 2014, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date, and at the conclusion of the trial, the Court reserved decision.
PRIOR RELATED PROCEEDINGS
The court takes judicial notice of three prior related nonpayment proceedings between the parties, as well as the contents of said files which have been requisitioned and reviewed by the court.
Index Number 66330/2012
This proceeding was originally returnable June 12, 2012 and sought arrears of $15,348.32 for a period covering May 2011 through May 2012. The proceeding was settled on December 13, 2012, pursuant to a stipulation wherein Respondent received an abatement in the sum of $4,722.56, and acknowledged a remaining balance of $18,890.24. There were no repairs requested in the stimulation of settlement by Respondent.
Index Number 73520/2013
This proceeding was initially returnable July 30, 2013, and sought $2361.28 in rent through May 2013, at a monthly rent of $1180 .64. The court ordered an inspection which took place on August 11, 2013 and resulted in two class “A”: violations and two Class “B” violations being placed on the premises. The violations were defective painting and plastering, deflective wood floors, and a leak in the ceiling. The proceeding was discontinued by Petitioner without prejudice on October 31, 2013, based on alleged defects in service.
Index Number 92114/2013
This proceeding was initially returnable January 14, 2014, and the pleadings sought $9,822.88 in arrears for a period covering April through November 2013. The proceeding was settled on February 27, 2014, pursuant to a stipulation that provided Respondent would pay $10,178.60, on or before March 6, 2014, and that said figure provided Respondent with an abatement in the amount of $2100.00. The stipulation also provided for Petitioner to correct the violation issued in the previous proceeding pertaining to the defective wood floor.
FINDIGS OF FACT
Petitioner is the owner of the subject building pursuant to a certified deed dated January 15, 1993 (Ex.1). Petitioner offered a certified multiple dwelling registration (Ex. 2) in evidence. The MDR was filed on or about July 24, 2014, and is certified as of August 28, 2014. It lists Cindy Fleisher as the Registered Managing Agent (RMA), with an office at 352 Seventh Avenue, 12th floor, New York, N.Y. 10001. However, it was acknowledged by Gina Baranowske (Baranowske), the only witness to testify on behalf of Petitioner that Petitioner does not actually maintain an office at 352 Seventh Avenue, and that Baranowske has never been to said location, but alleged she actually works from an office located at 9 Sycamore Lane, Montebello, New York 10901.
Upon being sworn in Baranowske stated her business address was 352 Seventh Avenue, but later upon further inquiry acknowledged that Petitioner maintains no office at that address, but can rent a conference room at that address, and that she herself had never been to that address.
Respondent is the rent stabilized tenant of record, pursuant to an original lease dated November 29, 1999 (Ex 5), which was most recently renewed on January 28, 2013, for a period through and including March 31, 2015 (Ex 4). The legal registered rent for the Subject Premises is $1227.86 (Ex. 3), prior to April 1, 2013, the legal regulated rent was $1180.64.
It was uncontested at trial that Respondent did not pay rent for the months April, May and June 2014, and that Respondent did pay rent for the months of July through September 2014, but the July through September Payments were all returned to Respondent by Petitioner (Exs M–P).
Respondent first notified Petitioner of an alleged lack of hot water in his bathroom by letter dated March 27, 2014 (Ex. B). Petitioner did not receive any complaints from other tenants in this regard, nor are there any violations of record or complaint registered with HPD for insufficient hot water. In the same letter, Respondent first complained of insufficient of hot water, he also indicated he would be out of town until April 22, 2014, and that any requests for access had to be by certified or registered mail.
On April 25, 2014, Respondent sent a letter to Petitioner's prior counsel that he would provide access to the Subject Premises on May 21, 2014 at 9:00 am for Petitioner to address the alleged lack of hot water (Ex 10). Petitioner did not appear for the scheduled access date on May 21, 2014. Baranowske offered no satisfactory or credible explanation as to why Petitioner failed to appear for said access date.
Petitioner requested another access date for June 20, 2014, at 10:00 am. Petitioner chose this date because Petitioner's plumber was already scheduled to be at the Subject Building on said date for the purpose of shutting down the heat in the building.
Respondent testified that as of June 20, 2014, hot water was restored to his bathroom.
Petitioner offered no witness with first hand knowledge as to what happened on June 20, 2014, but Baranowske alleged that access was not provided to the Subject Premises by Respondent.
Respondent alleged he tested the temperature of the hot water in the bathtub on 14 dates between March 17, 2014, and June 3, 2014, and that he recorded the temperature on each of those dates as being under 120 degrees Fahrenheit (Ex T).
DISCUSSION
Baranowske never testified by whom she was employed or what her position is. It is presumed that she is employed as a managing agent for Petitioner based on the testimony elicited, although she is not listed as the registered managing agent. Baranowske's false testimony upon being sworn in that her business address is at 352 Seventh Avenue is troubling to the Court. Respondent had made a point during the trial of the fact that Petitioner did not maintain any actual office at that address. A point conceded by Baranowske at trial. Moreover, the address that Baranowske did allege as her actual business address was 9 Sycamore Lane, Montebello, N.Y. 10901. In addition to the fact that this address is not in the City of New York, The Court takes judicial notice that this address is indicated to be a four bedroom, single family home in a residential neighborhood on the internet (www.zillow.com/homedetails/ 9–Sycamore–Ln–Montebellow–NY–10901/53428040_zpid/). § 325 of the multiple dwelling law provides for the requirement of annual registrations for multiple dwellings. Subsection 2 precludes the collection of rent in New York City where there is no valid registration filed. § 27–2098 of the Housing Maintenance Code provides the requirements for an MDR. This includes a requirement that a registered managing agent reside within the city or customarily and regularly attend a business office maintained within the city. The seventh avenue address does meet this requirement.
While the MDR does list an owner who appears to reside in the city of New York, Perry Haberman, at 687 Greenwich Street, and the Housing Maintenance Code allows such an owner to be designated as the registered managing agent, Haberman is not registered as such on the MDR submitted into evidence. Additionally, the MDR should list both a residence and business address for the owner but the MDR for the Subject Premises does not, listing the Greenwich Avenue address as both Haberman's residence and business address.
The purpose of the registration requirement is to enable tenants and government authorities to readily contact owners and other persons responsible for the operation of the building. A registration that provides an address for the registered managing agent which is not regularly attended by the agent, does meet the statutory requirements (Amsterdam v. Goldstick 136 Misc.2d 946 ). Where a registration has been filed, but does not comply with the specifics provided for in the Administrative Code, the authorities have held that dismissal of the proceeding is not warranted and that Petitioner should be permitted to amend the MDR (390 W. End Assoc. v. Raiff 166 Misc.2d 730 ).
Real Property Law § 235–b requires landlords of a residential premises to make repairs and to keep the premises free from conditions that are dangerous or detrimental to the life health or safety of the tenants and occupants residing in the premises (Park West Management Corp. v. Mitchell, 47 N.Y.2d 316 ). If there is a breach of that warranty, the tenant may be awarded damages in the form of a rent abatement. In determining the amount of the abatement, “the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (Id. at p. 9).”
Respondent's evidence of insufficient hot water was uncontested by Petitioner. Thus the court must find that on the 14 days specified by Respondent, the hot water in the bathroom was not 120 degrees Fahrenheit. However of those dates, six occurred before Respondent gave any notice at all to Petitioner of the condition. Thereafter, Respondent asserted he could not provide ready access until late April 2014, and the Respondent did not give Petitioner an actual access date until May 21, 2014. The court finds because of Respondent's limited ability to provide access between March 27 and May 21, Respondent is not entitled to any abatement for this period (Ele v. Ayanru NYLJ Mar 20, 2002, p. 22, col. 4). Petitioner's last minute cancellation of the May 21, 2014 access date was not justified. Therefore, Respondent is entitled to an abatement for the three dates between May 21, 2014 and June 21, 2014, when it is uncontested that the water in the bathroom was less then 120 degrees.
Respondent's monthly rent pro-rated over thirty days breaks down to approximately $41 per day. The court awards Respondent a $41 abatement for each of the three days totaling $123 through and including June 2014.
Petitioner made no motion to amend the petition to date at trial. Even had such an application been made, Petitioner is not entitled to a judgment for rent for the months of July through September, as in each of these months Respondent tendered the rent and Petitioner rejected it (Windemere Owners LLC v. Mullu 2013 N.Y. Slip Op 31714 ; Janes v. Paddell 74 Misc. 409 ; Albany v. White 46 Misc.2d 915 ). There was no basis for Petitioner to reject these tenders, as Respondent was clear that he was not seeking any abatement for any period after June 2014 when he acknowledged the hot water was restored. Petitioner's refusal of these prior tenders does not relieve Respondent of the obligation to pay the rent for these months, and if not promptly tendered Petitioner may institute a plenary action for said sums (Cinemas Francais Inc. v. Higgins 116 N.Y.S.2d 60 ).
Petitioner is entitled to a final judgment of possession in the amount of $3560.58 for all rent due through June 2014. However, issuance of the warrant is stayed for Petitioner to file an amended MDR that complies with the statute, and provide proof of same to the Court by submission of a certified amended registration. Upon proof of same, if the judgment amount remains unpaid, the warrant of eviction may issue forthwith.
Parties may pick up their exhibits from Window 9 in the clerk's office on the second floor within 30 days of the date of this decision. After said date, the documents may be destroyed in accordance with administrative directives.
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The court finds that Respondent failed to establish his claim of harassment and is not entitled to any relief based on that allegation.This constitutes the decision and order of this Court.