Opinion
No. 2022-50525 Index No. 2021-52320
03-15-2022
Edwin Carino, Plaintiff, v. Kristy Lee Mertens, Stephen Mertens & Stephen Cornell, Defendants.
Catalano & O'Fallon, LLP Kristy Mertens pro se Stephen Mertens pro se Stephen Cornell pro se
Unpublished Opinion
Catalano & O'Fallon, LLP Kristy Mertens pro se
Stephen Mertens pro se
Stephen Cornell pro se
Maria G. Rosa, J.
The following papers were read on Plaintiff's motion for summary judgment:
NOTICE OF MOTION
AFFIRMATION IN SUPPORT
AFFIDAVIT IN SUPPORT
EXHIBITS A - D
Plaintiff commenced this action to recover unpaid rent in the amount of $17,830.00 together with attorney's fees and costs. Defendants executed a lease for residential premises located at 529 Violet Avenue, Hyde Park, New York in the amount of $1,750.00 per month. The lease term expired on September 30, 2019. Pursuant to the terms of the lease, should the lessees remain in possession of the premises with the consent of the lessor after the expiration of the lease, a new month-to-month tenancy was created subject to all the terms and conditions of the lease. Plaintiff contends that Defendants failed to pay rent for the months of February 2020 through December 2020. Pro se Defendants Kristy Mertens and Stephen Cornell submitted an Answer to the Complaint with supporting documentation. Defendants admit that the rent was not paid, but also allege that Plaintiff retained a two months security deposit, and that the residence was in an uninhabitable condition which lead to them withholding rent. Pro se Defendant Stephen Mertens submitted an answer denying that he ever resided at or was in possession of the premises and stating that he was merely a co-signor to the lease agreement.
Plaintiff now moves for summary judgment. The pro se Defendants have not submitted any opposition.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of a triable issue of fact (see Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]). In deciding a motion for summary judgment, "the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered favorable to the nonmovant" (Szczerbiak v Pilat, 90 N.Y.2d 553 [1997]).
As an initial matter, Plaintiff failed to comply with Uniform Rule 202.8-g which requires that a statement of material facts be submitted with a motion for summary judgment. While there is some authority for the proposition that the failure to submit a statement of material facts requires the denial of a motion for summary judgment (see Alexander v B. N.C. M., Inc., 73 Misc.3d 1125 [A] [Sup Ct, NY County 2021]; Amos Fin, LLC v Crapanzano, 73 Misc.3d 448 [Sup Ct, Rockland County 2021]), the Court will excuse this failure under CPLR 2001 (see Disarli v TEFAF NY, LLC, 2022 NY Slip Op 30029 [U] [Sup Ct, Kings County 2022]).
As to Defendant Stephen Mertens, Plaintiff has failed to establish his prima facie entitlement to judgment as a matter of law. After the lease expired in September 2019, the provisions in the lease remained in force for as long as Mertens remained in possession of the premises (see Logan v Johnson, 34 A.D.3d 758, 759 [2d Dept 2006]). Plaintiff failed to establish that Mertens was in possession of the premises following the expiration of the lease term, and would therefore be obligated to its terms. The Court searching the record before it grants summary judgment to non-moving Defendant Mertens (see Goldstein v County of Suffolk, 300 A.D.2d 441, 442 [2d Dept 2002]).
As to Defendants Kristy Mertens and Stephen Cornell, Plaintiff has established his prima facie entitlement to judgment that Defendants were in possession of the premises and failed to pay rent from February 2020 to December 2020. However, the Answer and supporting documentation attached to the Answer filed by Defendants raises a triable issue of fact as to whether Defendants rightfully withheld rent given the condition of the premises (see Real Property Law §235-b; Law v Franco, 180 Misc.2d 737 [Sup Ct, Bronx County 1999]). In addition, Defendants have raised an issue of fact as to the amount for unpaid rent owed as they attest that Plaintiff retained their two months security deposit for unpaid rent.
Based upon the foregoing, it is hereby
ORDERED that Plaintiff's motion for summary judgment is denied; and it is further
ORDERED that summary judgment is granted to Stephen Mertens and the complaint is dismissed as against him; and it is further
ORDERED that the caption be amended to remove defendant Stephen Mertens as the claims against him are dismissed; and it is further
ORDERED that the parties are to appear for a virtual conference on April 14, 2022 at 9:15a.m., and it is further
ORDERED that Plaintiff is to serve a copy of this Decision and Order with Notice of its entry upon Defendants via first class mail. The affidavit of mailing shall be filed with the Court.
The foregoing constitutes the decision and order of the Court.
Scanned to the E-File System only
Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.