Summary
affirming denial of landlord's motion for summary judgment
Summary of this case from Flatbush Builders, Inc. v. DubresilOpinion
2012-09-11
CHAMA HOLDING CORP., Petitioner–Landlord–Appellant, v. James TAYLOR, Respondent–Tenant–Respondent.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York City (David B. Rosenbaum of counsel), for appellant. Northern Manhattan Improvement Corp. Legal Services, New York City (Rodrigo Sanchez-Camus of counsel), for respondent.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York City (David B. Rosenbaum of counsel), for appellant. Northern Manhattan Improvement Corp. Legal Services, New York City (Rodrigo Sanchez-Camus of counsel), for respondent.
PRESENT: LOWE, III, P.J., SCHOENFELD, HUNTER, JJ.
PER CURIAM.
Order (Jean T. Schneider, J.), dated October 12, 2011, affirmed, with $10 costs.
We agree that landlord's summary judgment evidence failed to establish, prima facie, a pattern of unjustified rent defaults on the tenant's part sufficient to constitute a violation of a substantial obligation of the tenancy ( seeRent Stabilization Code [9 NYCRR] § 2524.3[a] ). While the record demonstrates that tenant's rent defaults led to the commencement of four nonpayment proceedings between October 2007 and June 2010, two of those proceedings were shown to have arisen from legitimate disputes as to the propriety of the monthly rent sought by landlord and the existence of rent impairing conditions in the apartment. Each of those two proceedings yielded settlement stipulations awarding landlord rent in amounts substantially less than that sought in the underlying petitions, with the stipulation settling the second matter requiring landlord to attend to specified repairs. The bona fide claims raised by tenant in the two contested nonpayment proceedings as to the rental amounts demanded and/or the habitability of the apartment premises, precipitating the withholding of rent, preclude an eviction remedy based upon chronic nonpayment ( see Hudson St. Equities v. Circhi, 9 Misc.3d 138[A], 2005 WL 2850931 [App.Term, 1st Dept.2005] ). Nor, on this record, was such an eviction remedy triggered by the two remaining nonpayment proceedings, instituted, respectively, in October 2007 and January 2008, more than three and a half years prior to service of the within holdover petition ( cf. Greene v. Stone, 160 A.D.2d 367, 553 N.Y.S.2d 421 [1990] ).
In deciding this appeal, we do not consider the three nonpayment proceedings said to have been commenced by landlord in 1994 and 1995—the “Early Proceedings” as landlord presently describes them—the “exact details” of which, landlord now concedes, are unknown. Nor do we consider the nonpayment proceeding ostensibly commenced by landlord in August 2009, there being no showing that service of the underlying petition was properly effectuated upon tenant or that the case was pursued by landlord.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.