Opinion
Index No. LT-302018-23/NY
11-14-2023
Birdie 141 Broadway Associates, LLC, Petitioner, v. Diana Cruz, John Doe, Jane Doe, Respondents.
Cullen & Associates PC (Robert J. Marino, Esq.), for the petitioner Manhattan Legal Services (Sagar Sharma, Esq.), for the respondent Diana Cruz
Unpublished Opinion
Cullen & Associates PC (Robert J. Marino, Esq.), for the petitioner
Manhattan Legal Services (Sagar Sharma, Esq.), for the respondent Diana Cruz
HON. KAREN MAY BACDAYAN, JUDGE
Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc No.: 15-31.
PROCEDURAL POSTURE AND BACKGROUND
This is a holdover proceeding commenced by petitioner on January 26, 2023, against Diana Cruz ("respondent") by the filing of a notice of petition and petition; the petition was first noticed to be heard on March 2, 2023. (NYSCEF Doc Nos. 1-2, petition and notice of petition, respectively.) Prior to commencement of the proceeding, on October 12, 2022, petitioner served a predicate notice of termination pursuant to Rent Stabilization Code (9 NYCRR) § 2524.3 (a), alleging respondent violated and continues to violate a substantial obligation of her lease by "consistently, chronically, and unjustifiably fail[ing] to timely pay [her] rent," which has led to "numerous" housing court proceedings. (NYSCEF Doc No. 1 at 4, notice of termination.) The notice of termination recites the procedural history for eight prior nonpayment proceedings commenced by petitioner against respondent; the most recent of said proceedings was filed in June 2021, while the oldest proceeding was filed in June 2010. (Id.) The notice of termination directed respondent to vacate the subject premises on or before October 31, 2022. (Id. at 8.)
Respondent went through the Universal Access to Counsel legal intake process on the initial March 2, 2023 court date, and the proceeding was adjourned to May 2, 2023. Prior to the return date, petitioner filed a motion for use and occupancy pendente lite, while respondent's attorney filed a notice of appearance. (NYSCEF Doc No. 5, notice of motion [sequence 1]; NYSCEF Doc No. 10, notice of appearance.) On May 2, 2023, the court denied petitioner's motion without prejudice as premature and issued an order adjourning the proceeding to August 7, 2023, requiring respondent's answer to be filed by May 31, 2023, and setting forth a briefing schedule for any motion or cross motion. (NYSCEF Doc No. 12, May 2, 2023 decision/order denying petitioner's motion; NYSCEF Doc No. 11, May 2, 2023 adjournment and briefing schedule order.)
Respondent filed their answer on May 31, 2023, setting forth four defenses (failure to properly set forth facts pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 741 (4); violation of the statute of limitations for a breach of contract claim; and two defenses based upon failure to state a cause of action (one for failing to allege that respondent did not assert a warranty of habitability defense in the prior nonpayment proceedings that lay the basis for the instant chronic rent delinquency holdover proceeding, and one for failing to cite to a sufficient number of cases to demonstrate repeated rent delinquency), and a counterclaim of harassment; petitioner filed a reply to respondent's counterclaims on June 5, 2023. (NYSCEF Doc No. 13, answer; NYSCEF Doc No. 14, reply to counterclaim.)
Respondent's motion seeks summary judgment to dismiss the petition but permit respondent to move forward with her counterclaim, or in the alternative, dismissing the proceeding with prejudice pursuant to CPLR 3211 (a) (1), (a) (7) for failure to state a cause of action. (NYSCEF Doc No. 15, notice of motion [sequence 2].) Respondent cites to three Appellate Term, First Department proceedings - Adam's Tower Ltd. Partnership v Richter, 186 Misc.2d 620, 2000 NY Slip Op 20539 (App Term, 1st Dept 2000); Hudson St. Equities v Circhi, 9 Misc.3d 130 (A), 2005 NY Slip Op 51764 (U) (App Term, 1st Dept 2005), and Terrilee 97th St. LLC v Alaharzi, 53 Misc.3d 151 (A), 2016 NY Slip Op 51694 (U) (App Term, 1st Dept 2016) - and several lower court proceedings to argue that there is a "clear trend that where a tenant asserts a good faith claim for breach of the warranty of habitability in a nonpayment case, or a dispute as to the amount of the arrears, that case may not be used to form the basis of a chronic nonpayment holdover." (NYSCEF Doc No. 16, respondent's attorney's affirmation ¶ 41.) Respondent contends that the court filings in each of the eight underlying nonpayment proceedings demonstrates respondent's claims of petitioner's breach of the warranty of habitability, as well as her disputes regarding the amounts owed, thus respondent did not breach a substantial lease obligation and therefore "nearly all of the" underlying nonpayment proceedings "are disqualified from consideration." (Id. ¶ 24.)
The motion is denied to the extent respondent seeks dismissal pursuant to CPLR 3211 (a) (1). Respondent did not assert in her answer a defense founded upon documentary evidence, nor did she file a pre-answer motion to dismiss. Pursuant to CPLR 3211 (e), respondent waived any defense founded upon documentary evidence.
The following is a review of the court filings for the eight nonpayment proceedings, attached to respondent's motion as Exhibits A-G:
• In LT-072662-10/NY (the "2010 proceeding"), petitioner sued respondent for $1,336.26 in rent owed for May 2010 through June 2010, $750.00 in legal fees, and $200.00 in late fees. Respondent filed a pro se answer alleging the rent or a portion thereof had already been paid to petitioner. Respondent requested a judicial inspection order subsequent to the first court appearance; the inspection resulted in violations issued by the Department of Housing Preservation and Development ("HPD"). The court filings indicate Adult Protective Services ("APS") provided financial management for respondent. The attached court filings indicate respondent filed a motion in 2011, but no copy of the motion is included in Exhibit A. The January 2011, February 2011, April 2011, March 2012, and April 2012 stipulations of adjournment all included access dates for inspections and repairs. Both the September 2011 and October 2011 stipulations of adjournment referred to checks from APS that were being withheld; the September 2011 stipulation is not clear as to who was withholding the checks, while the October 2011 stipulation stated "[p]etitoner will give respondent's attorney a letter for respondent to try to obtain the checks that respondent is withholding to be reissued but she will be not [sic] responsible for the checks if they are not reissued." The parties settled the proceeding in November 2012, with petitioner accepting $7,500.00 as all rent owed through November 30, 2012, "[i]n consideration of respondent's claim for a rent abatement due to petitioner's alleged breach of the warranty of habitability[,]" amounting to a $2,938.03 rent abatement. Respondent agreed to pay the remaining balance by January 31, 2013; upon default, petitioner could move to restore for appropriate relief. The stipulation also included a list of alleged conditions and petitioner's agreement to inspect and repair the conditions as required by law within thirty days of execution of the stipulation. Petitioner filed a motion seeking a final judgment and warrant in February 2013, but the attached court documents do not include a disposition of petitioner's motion. (NYSCEF Doc No. 18, respondent's exhibit A.)
• Respondent's Exhibit B, purportedly the case file for LT-064811-13/NY (the "First 2013 proceeding"), only contains two documents pertaining to that proceeding: the petition, whereby petitioner sought $5,296.48 in rent owed from October 2012 through April 2013, $750.00 in legal fees, and $25.00 for insufficient funds fees; and a voluntary notice of discontinuance filed in May 2013. The remaining documents attached to Exhibit B pertain to a different nonpayment proceeding between the parties, LT-063691-14/NY, discussed infra. (NYSCEF Doc No. 19, respondent's exhibit B at 1-2.)
• In LT-078717-13/NY (the "Second 2013 proceeding"), petitioner commenced a nonpayment alleging $3,030.90 in rent owed from April 2013 through August 2013, and $750.00 in legal fees. Petitioner obtained a default judgment in September 2013, based on respondent's failure to answer the petition. Respondent filed a pro se order to show cause in October 2013, claiming the amount sought in the petition is incorrect, that the rent had been partially paid, and that she had been harassed. She did not claim in her order to show cause that there were conditions in need of repair or services not provided. The parties settled the order to show cause in November 2013, with respondent agreeing to a final judgment of $3,743.64, and execution of the warrant stayed through December 31, 2013, for respondent to pay $3,743.64, with December 2013 rent payable when due. The stipulation stated respondent was working on a one-shot deal application, as well as with Catholic Charities. The stipulation included a list of conditions which petitioner agreed to inspect and repair as required by law on an agreed-upon access date. Though the attached court filings do not include any other orders to show cause, the filings clearly show respondent filed three subsequent orders to show cause: a January 2014 decision/order granted an order to show cause, noting respondent made payments to petitioner by money order in court and staying execution through January 31, 2014, for respondent to pay $4,347.87. A February 2014 stipulation settled respondent's third order to show cause by staying execution through February 28, 2014, for respondent to pay $4,347.00 as all rent owed through February 2014, and noted respondent had a one shot deal approval. The parties agreed to access dates for "repair from prior stip of [November 29, 2013] not complete...." A March 2014 stipulation settled a fourth order to show cause, acknowledging petitioner received DSS checks in court totaling $4,347.00, bringing respondent to a zero balance through February 2014, vacating the judgment and warrant, and discontinuing the proceeding, with another agreed-upon access date to address conditions. (NYSCEF Doc No. 20, respondent's exhibit C.)
• In LT-063691-14/NY (the "2014 proceeding"), petitioner commenced a nonpayment alleging $5,290.05 in rent owed from October 2013 through April 2014, and $25.00 in insufficient funds fees. (NYSCEF Doc No. 21, respondent's exhibit D at 2.) Petitioner obtained a default judgment in June 2014, based on respondent's failure to answer the petition. (NYSCEF Doc No. 19, respondent's exhibit B at 10.) Respondent's Exhibits B and D do not include a copy of any order to show cause filed by respondent, but the file contains a July 2014 judicial inspection request from respondent, and an August 2014 stipulation settling an order to show cause by staying execution through September 30, 2014, for respondent to pay $3,040.65 plus September 2014 rent; respondent alleged to have paid March 2014 rent. The parties agreed to access dates for petitioner to repair the HPD violations resulting from respondent's inspection request. (NYSCEF Doc No. 21, respondent's exhibit D at 7-8.) The file also includes stipulations of adjournment in June 2015, July 2015, and October 2015, all of which included language regarding access dates for petitioner to make repairs as required by law. (NYSCEF Doc No. 19, respondent's exhibit B at 5-7.) The January 2016 stipulation appears to have settled the proceeding, with respondent receiving a 17.5 percent abatement "[i]n accordance with building wide settlement offer[,]" and respondent agreeing to pay $3,589.54 by February 29, 2016, along with February 2016 rent. The agreement included access dates for repairs. (NYSCEF Doc No. 19, respondent's exhibit B at 3.) Respondent asserts in her affidavit in support of the motion that she withheld rent for petitioner to commence the proceeding; she fails to note, however, that she defaulted in the proceeding and had to file an order to show cause to place the proceeding back on the court's calendar. (NYSCEF Doc No. 17, Cruz affidavit ¶ 12.)
• In LT-068262-16/NY ("the 2016 proceeding"), petitioner commenced a nonpayment alleging $2,432.52 in rent owed from March 2016 through June 2016. Petitioner obtained a default judgment in August 2016, based on respondent's failure to answer the petition. Respondent filed an order to show cause to vacate the default judgment in September 2016; respondent's affidavit in support of her order to show cause is conspicuously absent from the court filings attached as Exhibit E. The order to show cause was adjourned four times before respondent for the first time raised the issue of repairs in the February 2017 stipulation, which vacated the default judgment and warrant and set forth access dates for repairs to be performed as required by law; the copy of the stipulation attached to the exhibit does not contain the entire list of repairs or the agreed upon list of alleged conditions. (NYSCEF Doc No. 22, respondent's exhibit E at 8.) Five months later, respondent requested a judicial inspection order. The parties settled the proceeding in August 2017, whereby respondent agreed to a final judgment of $11,554.47 as all rent owed through September 2017, with a warrant of eviction issued forthwith and stayed through November 9, 2017, for respondent to pay $11,554.47. Petitioner agreed to inspect and repair respondent's list of alleged conditions as required by law; the copy of the stipulation attached to Exhibit E does not appear to show an actual access date. (Id. at 6.)
• In LT-066700-18/NY (the "First 2018 proceeding"), petitioner commenced a nonpayment alleging $2,542.66 in rent owed from April 2018 through June 2018. Petitioner obtained a default judgment in August 2018, based on respondent's failure to answer the petition. Respondent filed an order to show cause to vacate the default judgment that same month; in her affidavit in support of her order to show cause, respondent did not allege there were conditions in need of repairs, but rather that she was seeking assistance with the rental arrears "due to lost [sic] of income." The parties entered into a stipulation of discontinuance on the return date, with no mention of alleged repairs. (NYSCEF Doc No. 24, respondent's exhibit F.)
• In LT-075916-18/NY (the "Second 2018 proceeding"), petitioner commenced a nonpayment proceeding alleging $5,318.76 in rent owed from March 2018 through October 2018. Respondent filed a pro se answer in November 2018, alleging that the rent or a part thereof had already been paid and there were conditions or services in the subject premises which petitioner did not repair or provide. In her affidavit in support of the motion, respondent acknowledges she "needed an accurate rent ledger to apply for a one-shot deal." (NYSCEF Doc No. 17, Cruz affidavit ¶ 15.) Respondent appears to have defaulted on the initial court appearance, but the court adjourned the proceeding rather than enter a judgment due to petitioner's failure to provide a rent breakdown. On the December 2018 adjournment date, petitioner represented in the stipulation of adjournment that it was "in the process of amending the rent record." The parties settled the proceeding on the January 2019 adjournment date, with respondent consenting to a final judgment for $6,051.35 as all rent owed through January 2019, with a warrant to issue forthwith and stayed through March 15, 2019, for respondent to pay $6,051.35, along with February 2019 and March 2019 rent. The parties agreed to two access dates for petitioner to repair respondent's list of alleged conditions as required by law. The court jacket file does not indicate any further court dates. (NYSCEF Doc No. 25, respondent's exhibit G.)
• Lastly, respondent contends that LT-304704-21/NY (the "2021 proceeding") is an active, ongoing nonpayment proceeding, in which respondent has raised a warranty of habitability defense and a rent abatement claim. (NYSCEF Doc No. 16, respondent's attorney's affirmation ¶ 55.) Respondent attached a copy of a proposed amended answer, with no mention as to whether the proposed answer was deemed served and filed in the proceeding. (NYSCEF Doc No. 26, respondent's exhibit H.) Although only respondent's proposed amended answer in this nonpayment proceeding is attached to respondent's motion, the court takes judicial notice of the court filings on NYSCEF, which show respondent did not assert a warranty of habitability defense or counterclaim in her pro se answer in August 2021, and that her amended answer including said defense was not deemed served and filed (with respondent withdrawing her harassment counterclaim) until October 2023, nearly three months subsequent to the filing of the instant motion. (NY St Cts Elec Filing [NYSCEF] Doc No. 30, stipulation, https://iapps.courts.state.ny.us/nyscef/CaseSearch [complete CAPTCHA, search by case index No. LT-304704-21/NY, click on index No. LT-304704-21/NY].)
This contradicts the proceeding's summary provided by respondent and her attorney, who both claim respondent filed an answer. NYSCEF Doc No. 16, respondent's attorney's affirmation ¶ 48; NYSCEF Doc No. 17, Cruz affidavit ¶ 9-11.
Respondent acknowledges in her affidavit in the support of her motion that she "needed a one-shot deal because I was facing financial hardship. I cared for my sick mother for the last fifteen years and had to pay for all her medical bills. Some expense included having a hospital bed in the apartment, an oxygen tank, and a tube feeding system. I was even forced into early retirement to take care of my mom. As a result of increased medical expenses and not having a job, I fell behind on my utilities and rent." NYSCEF Doc No. 17, Cruz affidavit ¶ 10.
The amount tendered to petitioner is illegible.
Respondent's attorney incorrectly claims the proceeding was commenced one month after the parties settled the prior nonpayment proceeding; the prior proceeding was discontinued in March 2014, and petitioner commence the subsequent proceeding in May 2014, two months later. Respondent, meanwhile, claims petitioner commenced the proceeding while the First 2013 proceeding remained pending. NYSCEF Doc No. 17, Cruz affidavit ¶ 12. Petitioner, however, discontinued the First 2013 proceeding in May 2013, one year prior to petitioner's commencement of the 2014 proceeding. NYSCEF Doc No. 19, respondent's exhibit C at 2.
Respondent again incorrectly states that petitioner commenced this proceeding while the First 2013 was still active; that proceeding was discontinued by petitioner in May 2013, more than three years prior to the commencement of this proceeding. See NYSCEF Doc No. 17, Cruz affidavit ¶ 13.
Both Respondent and her attorney incorrectly state, again, that respondent filed an answer to the proceeding. NYSCEF Doc No. 17, Cruz affidavit ¶ 14; NYSCEF Doc No. 16, respondent's attorney's affirmation ¶ 53.
In support of her alternative requested relief for dismissal, respondent cites to several lower court proceedings to argue that the six-year statute of limitations under CPLR 213 [2] applies to chronic rent delinquency holdovers premised upon a tenant's breach of a substantial lease obligation, and thus bars from consideration five of the eight nonpayment proceedings petitioner filed against respondent, all of which were filed prior to 2017, six years prior to the commencement of the instant proceeding. (NYSCEF Doc No . 16, respondent's attorney's affirmation ¶¶ 58-59, 64.) As for the remaining three proceedings, respondent contends "three cases over the course of three years is not sufficient to demonstrate long-term breach of lease obligations." (Id. ¶ 65.) More specifically, the First 2018 proceeding should not be considered, "because it was discontinued by the first appearance" and there was no agreement as to whether payments were made or what arrears, if any, were owing at that time. Nor should the court consider the 2021 proceeding, as it is ongoing and respondent has raised the issue of petitioner's breach of the warranty of habitability. (Id. ¶¶ 66-67.) Respondent contends that the Second 2018 proceeding is insufficient to prove a "long-term pattern of delinquent payments," thus respondent argues the petition fails to state a cause of action and must be dismissed. (Id. ¶¶ 68-69.)
In opposition, petitioner contends there is no "bright line test" for which underlying nonpayment proceedings may or may not form the basis of a chronic rent delinquency holdover, and thus respondent is not entitled to summary judgment as a matter of law. (NYSCEF Doc No. 29, petitioner's attorney's affirmation ¶ 12.) Petitioner further argues that the statute of limitations does not preclude petitioner from presenting evidence from prior nonpayment proceedings to demonstrate respondent's repeated failure to timely pay her rent. (Id. ¶¶ 48-49, 51.) Petitioner asserts there remains a triable issue of fact, namely whether respondent's purported claims of petitioner's breach of the warranty of habitability precipitated her withholding of rent, given that she did not assert the claim in the underlying proceedings in which she filed either an answer or an order to show cause. (Id. ¶¶ 22-26, 59.) In reply, respondent argues her failure to pay rent that led to the underlying nonpayment proceedings, including the need for her to apply for rental arrears assistance in two of the proceedings, should be considered "in the context of the entire circumstances surrounding the alleged withholding of rent (internal quotation marks omitted)." (NYSCEF Doc No. 31, respondent's attorney's reply affirmation ¶¶ 11, 32.)
The court held oral argument on October 31, 2023, and reserved decision. The court will first discuss the branch of respondent's motion seeking dismissal of the proceeding, then will discuss the branch seeking summary judgment.
DISCUSSION
Respondent's Motion to Dismiss
On a motion to dismiss for failure to state a cause of action, the court must accept as true all of the factual allegations in the petition. (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994].) "The sole criterion is whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977].) "Whether a [petitioner] can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (EBCI, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005].)
"The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed." (CPLR 203 [a]; CPLR 105 [b] ["The word 'action includes a special proceeding...."].) "While the question of when a cause of action accrues often proves to be difficult in particular applications, it is governed, in theory, by a simple principle: A cause of action does not accrue until its enforcement becomes possible[.] In other words, a particular cause of action accrues as soon as a claimant is able to state the elements of that cause of action, and hence, to assert a valid right to some sort of legal relief[.] It would seem to be a logical corollary to this rule that the Statute of Limitations may not begin to run before all the elements of a cause of action may truthfully be alleged, nor may it continue to run for any period of time during which an element of the cause of action can no longer be truthfully alleged (internal citations and quotations marks omitted)." (Roldan v Allstate Ins. Co., 149 A.D.2d 20, 26 [2d Dept 1989].)
Though there is no clear holding from the appellate courts as to the statute of limitations in a chronic rent delinquency holdover proceeding, the court finds the Honorable Peter Wendt's reasoning in Adam's Tower LP v Lynch, NYLJ, Jan 24, 2007 at 22, col 3 (Civ Ct, New York County 2007), and Chelsea Realty Dev. Corp. v Couceiro, et al., Civ Ct, New York County, Oct. 1, 2015,,Wendt, J., index No. 84549/14, expounded on by the Honorable Michael L. Weisberg in Flatbush Builders, Inc. v Dubresil, 57 Misc.3d 456, 2017 NY Slip Op 27250 (Civ Ct, Kings County 2017), persuasive. In Adam's Tower LP, the landlord commenced a holdover proceeding in 2006, premised upon nine nonpayment proceedings against the tenant, including four proceedings between 1987 and 1994. Judge Wendt dismissed the portion of the holdover petition premised upon the four nonpayment proceedings filed against the tenant between 1987 and 1994, noting that had petitioner commenced the proceeding in 2001, the six-year statute of limitations under CPLR 213 [2] would lead to dismissal of the petition, as more than six years had passed since the most recent nonpayment proceeding in 1994. Judge Wendt expanded upon his reasoning in Chelsea Realty Dev. Corp., quoted at length by Judge Weisberg in Dubresil:
"The time within which to commence [a holdover based on breach of lease] 'shall be computed from the time the cause of action accrued to the time the claim is interposed' (CPLR 203). A statute of limitations provides a party with an affirmative defense to prevent the prosecution of a claim that was not pursued within the allotted time after its accrual. Here, respondent fundamentally misconstrues the purpose and function of a statute of limitations. It is not a rule of evidence, barring as irrelevant evidence of occurrences or transactions occurring outside the specified period. Rather it is a provision permitting respondent to raise a defense to a cause of action that accrued more remotely in time than the statute permits. The salient question, then, is not whether any of the occurrences or transactions upon which petitioner relies occurred more than six years prior to the commencement of this proceeding, but whether all of them did (emphasis added).
The fundamental characteristic of a claim of chronic rent delinquency is that there must be a cumulative pattern of unexcused rent delinquency (see 326-330 East 35th Street Assocs. v. Sofizade, 191 Misc.2d 329, 333 [App.Term, 1st Dept.2002]). The statute of limitations does not function as a rule of evidence to automatically prevent consideration of cases commenced more than six years prior to the commencement of this action. Although the trier of fact may well ultimately decide[] that the earlier proceedings were too remote in time to be part of the continuing rent delinquency pattern claimed herein by the landlord, the earlier proceedings may be considered as a matter of evidence. Rather, 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 (internal citation omitted) (emphasis added)." (Dubresil, 57 Misc.3d 456, 459-460.)
Here, the court finds that the instant holdover proceeding is not barred by CPLR 213 [2]. Had petitioner commenced all of the proceedings more than six years prior to commencing the instant proceeding, there may be an argument that all of the occurrences or transactions relied upon by petitioner fell outside the scope of the statute of limitations, and that petitioner's claim "accrued, but [did] not continue[], more than six years prior to the commencement of this proceeding." (Dubresil, 57 Misc.3d 456, 459-460, quoting Chelsea Realty Dev. Corp.) However, that is simply not the case in the case at bar. Moreover, as Judge Wendt noted in Chelsea Realty Dev. Corp., the court may very well find that some of the underlying nonpayment proceedings "were too remote in time to be part of the continuing rent delinquency pattern claimed herein by" petitioner, but that is an issue of fact for trial, not a basis for dismissal. The branch of respondent's motion to dismiss the proceeding is therefore denied.
Here, petitioner commenced a nonpayment proceeding in 2010, two proceedings in 2013, one proceeding in 2014, one proceeding in 2016, two proceedings in 2018, and one proceeding in 2021. The 2010 proceeding appears to have concluded in either February 2013 or March 2013. Petitioner commenced the first 2013 proceeding in April 2013 and was voluntarily discontinued by petitioner in May 2013. Petitioner commenced the second 2013 proceeding three months later, in August 2013, which concluded in March 2014. Two months later, petitioner commenced the 2014 proceeding, which concluded in January 2016. Five months later, petitioner commenced the 2016 proceeding; the last stipulation in that proceeding is from August 2017. One year later, petitioner commenced the first 2018 nonpayment proceeding in July 2018, which the parties agreed to discontinue the following month. Two months later, petitioner commenced the second 2018 nonpayment proceeding; the last stipulation in that proceeding is from January 2019. Petitioner commenced the 2021 proceeding in July 2021.
Respondent's Motion for Summary Judgment
A court may employ the drastic remedy of summary judgment only where there is no doubt as to the absence of triable issues. (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974].) On such a motion, a court's function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v Renda, 21 Misc.3d 1138 [A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008], citing Epstein v Scally, 99 A.D.2d 713 [1st Dept 1984].) The facts must be considered "in the light most favorable to the non-moving party." (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011].) To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in their favor. (GTF Mktg., Inc. v Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967 [1985].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of fact requiring a trial. (Vega v Restani Const. Corp., 18 N.Y.3d 499, 503 [2012] [internal citations and quotation marks omitted].) When determining a summary judgment motion, courts should not decide issues of credibility. (See Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968].) If an issue is "fairly debatable a motion for summary judgment must be denied." (Stone v Goodson, 8 N.Y.2d 8, 12 [1960].)
"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 (internal citation and quotation marks omitted)." (Adam's Tower Ltd. Partnership v Richter, 186 Misc.2d 620, 621 [App Term, 1st Dept 2000] [modifying lower court's denial of landlord's motion for summary judgment by granting said motion, due to "the absence of a bona fide habitability claim or dispute as to the amount of rent owed.") "A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency." (Id.) However, where a tenant either raises a "bona fide claim" that the landlord is seeking an incorrect amount of arrears, or that the landlord's breach of the warranty of habitability "precipitat[ed] the withholding of rent, a holdover petition based upon chronic nonpayment will not lie." (Hudson St. Equities v Circhi, 9 Misc.3d 138 [A], 2005 NY Slip Op 51764 [U] [App Term, 1st Dept 2005]; Chama Holding Corp. v Taylor, 37 Misc.3d 70, 2012 NY Slip Op 22255 [App Term, 1st Dept 2012]; Bennett v Mentis, NYLJ, Sept. 13, 2000 at 22, col 1 [App Term, 1st Dept 2000].)
A further examination of appellate case law leads this court to conclude that the questions of whether a tenant had a bona fide claim of a landlord's breach of the warranty of habitability, and whether the landlord's purported breach of same "precipitated" the tenant's withholding of rent, are questions of fact not susceptible to summary judgment. In Greene v Stone, 160 A.D.2d 367 (App Term, 1st Dept 1961), the Appellate Division, First Department reversed the lower court's dismissal of a holdover premised on the tenant's chronic rent delinquency after the landlord presented its prima facie case at trial without continuing the trial to take testimony from the tenant to "adequately explain[]" a justification for withholding rent. The Appellate Division held:
"[I]n 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. In that regard, although the evidence educed [sic] at trial may well demonstrate that respondent was justified in withholding rent (for example, there was a valid dispute with the landlord concerning the failure to make repairs), it was certainly error to dismiss the petition following the owner's presentation of a prima facie case (emphasis added)." (Greene, 160 A.D.2d 367, 368.)
The Appellate Division ruled similarly in 25th Realty Assoc. v Griggs, 150 A.D.2d 155 (1st Dept 1989), where it modified the lower court's grant of summary judgment for the tenant and remanded for further proceedings. The Appellate Division found summary judgment inappropriate, as the tenant's allegations in several of the underlying nonpayment proceedings that there were conditions and violations in their apartment and that there were bona fide disputes as to whether tenant was entitled to a rent abatement "raise questions of fact concerning the tenant's motives which we think impossible to resolve on the present record. It may be that the circumstances cited by the tenant will, after closer inquiry, be found sufficiently serious to justify or, at least explain, his refusal to tender rent. But it may also be that these circumstances are advanced as a mere pretext to justify what was, in reality, a pattern of rent delinquency whose only discernible purpose was to harass the landlord." (Griggs, 150 A.D.2d 155, 156-57).
Respondent's reliance on two Appellate Term, First Department cases is misplaced, as those rulings - Hudson St. Equities v Circhi, 9 Misc.3d 138 (A), 2005 NY Slip Op 51764 (U) (App Term, 1st Dept 2005), and Terrilee 97th St. LLC v Alaharzi, 53 Misc.3d 151 (A), 2016 NY Slip Op 51694 (U) (App Term, 1st Dept 2016) - affirmed the lower courts' dismissal of chronic rent delinquency proceedings after trial, not on a motion for summary judgment. "On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact." (S. J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974].) If an issue is "fairly debatable a motion for summary judgment must be denied." (Stone v Goodson, 8 N.Y.2d 8, 12 [1960].)
The Appellate Term, First Department's holding in Time Equities Assocs LLC v McKenith, 66 Misc.3d 140 (A), NY Slip Op 50128 (U) (App Term, 1st Dept 2020), aligns with the prior appellate case law, as there appeared to be triable issues of fact as to whether the tenant had a bona fide claim of the landlord's breach of the warrant of habitability. There, the court reversed the lower court's grant of summary judgment; citing to Hudson St. Equities v Circhi, 9 Misc.3d 130 (A), 2005 NY Slip Op 51764 (U) (App Term, 1st Dept 2005), the court noted "at least two of the nonpayment proceedings were settled by so-ordered stipulations requiring landlord to make repairs (internal citation omitted.)" (McKenith, 66 Misc.3d 140 [A], NY Slip Op 50128 [U], *1.) A review of the procedural history outlined by the lower court reveals that the two nonpayment proceedings noted by the Appellate Term had settled proceedings in which the tenant did not raise a claim of the landlord's breach of the warranty of habitability in their answer. (Time Equities Assocs LLC v McKenith, 62 Misc.3d 1212 [A], NY Slip Op 50123 [U] *2 [Civ Ct, New York County 2019].) However, The Appellate Term remanded the matter for further proceedings, finding the landlord "failed to establish, prima facie, a pattern of unjustified rent defaults" by the tenant. (McKenith, 66 Misc.3d 140 [A]. NY Slip Op 50128 [U], *1.)
The court notes petitioner cites to the lower court decision in McKenith, without providing any indication that the decision was reversed by the Appellate Term.
In the instant proceeding, respondent has failed to demonstrate a prima facie entitlement to summary judgment. As discussed supra, the statute of limitations does not bar consideration of any of the eight underlying nonpayment proceedings. However, whether or not petitioner's alleged failure to make repairs in the subject premises precipitated respondent's withholding of rent is a triable issue of fact involving motive and intent that cannot be resolved on the moving papers. Respondent's exhibits reveal respondent only filed an answer in three of the eight underlying nonpayment proceedings. In four of the other five proceedings, respondent defaulted by failing to file an answer and was required to file orders to show cause to restore the proceedings to the court calendar. Moreover, in two of those proceedings in which she moved to vacate her default (the 2013 proceeding and the First 2018 proceeding), she did not allege any repairs in her affidavits in support of the orders to show cause. As for the other two proceedings, she omits from her moving papers the order to show cause and supporting affidavit in the 2014 proceeding, and the supporting affidavit of her order to show cause in the 2016 proceeding.
It is unclear from the documents attached as Exhibit B whether respondent filed an answer in LT-064811-13/NY.
In addition, respondent's own admissions in the underlying nonpayment proceedings, as well as in her affidavit in support of the motion, raise questions of fact as to whether petitioner's alleged failure to perform repairs precipitated her withholding of rent, thus leading petitioner to commence nonpayment proceedings, or whether such assertions are "mere pretext to justify what was, in reality, a pattern of rent delinquency...." (25th Realty Assoc. v Griggs, 150 A.D.2d 155, 156 [1st Dept 1989]; Adam's Tower Ltd. Partnership v Richter, 186 Misc.2d 620, 621 [App Term, 1st Dept 2000] ["A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency."]) In the context of the Second 2013 proceeding, the court filings show respondent applied for rental arrears assistance, and respondent acknowledges in her affidavit in support of the motion that she could not afford the rent due to medical expenses related to her mother's failing health. (NYSCEF Doc No. 17, Cruz affidavit ¶ 10.) In the First 2018 proceeding, her affidavit in support of her order to show cause to vacate the default judgment included her representation that she was seeking assistance with the rental arrears "due to lost [sic] of income." Respondent states in her affidavit in support of the motion that in the Second 2018 proceeding, she "needed an accurate rent ledger to apply for a one-shot deal." (Id. ¶ 15.) Based on the record now before the court, respondent has not eliminated all triable issues of material fact and is therefore not entitled to summary judgment. The branch of respondent's motion seeking summary judgment to dismiss the proceeding is denied.
CONCLUSION
Accordingly, it is
ORDERED that respondent's motion is DENIED in its entirety for the reasons set forth above.
The parties are to appear in Part F, Room 523, of the New York County Civil Courthouse on December 4, 2023 at 9:30 for a pre-trial conference.
This constitutes the decision and order of this court.