Opinion
90/04.
Decided October 20, 2004.
Bruce H. Lederman, Esq., (Attorney for Plaintiff).
Jeanne S. Schieck, Esq., (Attorney for Defendant).
DECISION AFTER TRIAL
In this non payment proceeding relating to the lease of a residential building, Petitioner seeks judgment in the amount of $9,900.00 in rent for the months of April, May and June, 2004 plus late fees and legal expenses. Respondent, in his verified answer, denied that a demand for rent had been made and asserted counterclaims consisting of a 100% rent abatement based upon the uninhabitable condition of the property, costs of services of "repairs and services" made by the Respondent, moving expenses incurred by the Respondent and return of the security deposit.
Following Petitioner's presentation of his prima facia case, Respondent made a motion to dismiss based upon failure by Petitioner to testify and present evidence of proper demand for rent as required by state law. The court reserved decision on that issue, requested that counsel for both parties provide the court with post-trial briefs on the requirements of proper demand in a non-payment proceeding and then allowed the trial to continue.
At the close of Respondent's case Petitioner moved to dismiss Respondent's counterclaims relating to the condition of the demised premises based upon the lease provision that required the Respondent to make all repairs (other than structural) and his assertion that any such conditions were insignificant as a matter of law and/or created by the Respondent himself. In opposition Respondent argued that RPAPL section 235 does not allow for waiver in the lease of habitability requirements and that the conditions do require abatement of rent and reimbursement of expenses incurred by the respondent in making repairs. Additionally, respondent moved to dismiss the late fee provision of the lease as unenforceable. The court reserved decision on these additional issues and again requested that counsel for both parties brief the applicability of the Real Property Law 235-b to the subject premises; the applicability of the doctrine of partial actual eviction to this matter; and whether the late fee required in the lease is a penalty and therefore unenforceable.
The Applicability of the RPAPL Demand Notice Provisions to Petitioner's Claim for Rent, Late Fees and Legal Fees
The minimum statutory requirements for a rent demand required by R.P.A.P.L. Section 711 in order to maintain a summary proceeding are that petitioner make either a three day personal demand or serve a written demand on the tenant for rent alleged to be owed. If a written demand is made, the demand must be served pursuant to the provisions of R.P.A.P.L. Section 735 which requires the written notice be personally delivered to the respondent. If, after reasonable application, personal delivery of the demand cannot be effectuated, then the demand must be served by substituted service on a person of suitable age and discretion or by conspicuous placement on the entrance door of the premises at issue followed within one day by first class and certified or registered mailing. R.P.A.P.L. 735(1). The parties, however, may contract to different and more stringent demand provisions in their lease than those contained in the statute. Hendrickson v. Lexington Oil Co., Inc., 41 AD2d 672 (2nd Dept. 1973); Margis Realty Co. v. Belaguer, N.Y.L.J., 3/24/92, p. 21, Civ. Ct., J. Wendt); PAK Realty Associates v. RE/MAX Universal, Inc., 157 Misc 2d 985 (Civ.Ct. Queens Co. 1993). Pursuant to the parties' written lease the Petitioner was required to serve a five day written demand for rent on the Respondent prior to the commencement of the summary proceeding. Paragraph 19 of the lease requires as follows:
It is expressly understood and agreed that in case the demised premises shall be deserted or vacated, or if default be made in the payment of rent or any part thereof as herein specified. . . . the Landlord may, if the Landlord so elects, at any time thereafter terminate this lease and the term hereof on giving to the Tenant five days' notice in writing of the Landlord's intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof. Such notice may be given by mail to the Tenant addressed to the demised premises (emphasis added).
At trial the Petitioner failed to provide any evidence that such written demand notice was ever made.
ARGUMENTS of the PARTIES
Respondent argued that the failure here to serve a proper written predicate demand notice in accordance with the terms of the written lease requires dismissal of this proceeding, citing Pepe vs. Miller Miller Consulting Actuaries, Inc., 221 AD2d 545 (2nd Dept. 1995) and Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786 (1980).
Petitioner agrees that, although ordinarily the respondent would be correct, in this case, "by stipulation, prior to the trial, the respondent voluntarily surrendered possession of property [and] [e]ssentially, the stipulation transmuted this case into a plenary action on a contract claim for rent and a statutory counterclaim for alleged breach of warranty of habitability and a contract counterclaim for return of a down payment" and therefore, presumably, vitiated the requirements of the notice provisions.
FINDINGS of LAW
When the Petitioner commenced this action he was required to provide written five day notice to the Respondent. The primary purpose of summary proceedings is the speedy and expeditious disposition of the right of the landlord to the immediate possession of his property. While a landlord my seek a judgment for back rent, the summary proceeding is to reclaim possession of his real property and not the collection of overdue rent. Barstow Road Owners, Inc. v. Billing et al., 179 Misc 2d 958 (First Dist. Ct. Nassau Co. 1998); Tivoli Associates v. Wing, 122 Misc 2d 901 (Civ.Ct. Kings Co. 1984). In an action to recover allegedly unpaid rent the Court of Appeals held that the issuance and service of the notice of petition and petition by a landlord is an election and declaration by the landlord that the tenant should remove himself from the premises and that the lease should be canceled. The issuance and service of the petition upon the tenant cancels the lease and annuls the relation of landlord and tenant as of the time of the removal from the premises by the tenant. Cornwell v. Sanford, 222 NY 248 (1917); See also, Reich v. Cochran, 201 NY 450 (1911).
The petition in this case alleges in paragraph "6" that: "(s)aid rent has been duly demanded personally from the tenant since the same became due." Paragraph "19" of the lease recited above requires five days written notice to the respondent before an eviction proceeding may be maintained. The essentials of the notice of petition and petition are specifically regulated and are strictly construed. R.P.A.P.L. 741.
Petitioner failed to offer any testimony or documentary evidence at trial that a five day written demand as required by the lease was served on the respondent. In any summary proceeding the petitioner must allege and prove that he has served the proper notice on the tenant. Kepo, Inc. V. Romano, 85 AD2d 621 (2nd Dept. 1981) appeal denied 56 NY2d 505; Oberlies v. Oliva, 45 Misc 2d 533 (App. Term First Dept. 1964). Respondent is correct in his assertion that "Proof of a demand for rent is a . . . requisite to maintain a summary proceeding and failure to provide proof calls for dismissal of the action." Although in some situations defects in pleadings are amendable, defects in the content or service of the predicate notice are not subject to cure and require that the proceeding be dismissed. Solack Estates v. Goodman, 102 Misc 2d 504 (App. Term 1st Dept. 1979) aff'd 78 AD2d 512 (1st Dept. 1980); 25-35 Equity Holdings, Inc. V. Toles, 2001 NY Slip Op. 40036U, 2000 NY Misc. LEXIS 619 (Civ.Ct. New York). In Fitzgerald v. Washington, 80 Misc 2d 861 (Civ.Ct. New York 1975) the court held that if a petitioner fails at trial to cure a defect in his pleading and fails to testify at trial as to the facts and offer documentary evidence of proper demand of rent arrears the petition must be dismissed based upon the failure by the petitioner to state a claim on which relief could be granted. R.P.A.P.L. 741.
Moreover, Petitioner did not offer any testimony during trial that he had made a even the personal three day demand of the respondent for the alleged rent arrears that he alleged in paragraph "6" of his petition.
In the instant case the respondent's attorney made a motion to the court following the completion of the petitioner's case and immediately after the petitioner had rested in which she requested dismissal of petitioner's claims based upon the petitioner's failure to establish a prima facia case by his lack of any testimony and proof of proper demand for rent. Petitioner's argument that somehow, after he commenced this summary proceeding and after issue was joined, Petitioner was able free himself from the requirements of these demand notice provisions and confer jurisdiction upon this court by way of a stipulation, which by the way makes no mention, explicit or otherwise of a waiver by the respondent of his affirmative defense of no notice, seems specious at best. Petitioner cites no authority supporting this theory and the court could find none on it's own.
The Petitioner's failure to strictly comply with the statutes governing summary proceeding mandates dismissal of petitioner's claims. In the Matter of Wallace Oil Company, Inc. v. Clarke, 284 AD2d 492 (2nd Dept. 2001)
Respondent's motion for same is now granted.
RESPONDENT'S COUNTERCLAIMS
Respondent's first counterclaim is for abatement of the rent. As this court has just dismissed petitioner's claims for rent, respondent's counterclaim for abatement is rendered moot.
Respondent's second counterclaim is for the repairs and services for which respondent paid during his brief possession of the premises. During the course of the presentation of his case, the respondent testified to and entered into evidence documentary proof that he made and paid for certain repairs. They included a bill for repair and relighting of the pilot light for the heating unit: $86.94, and the installation of new gutters: $575.00. The respondent as well as his witness, a Mr. Frank Balko, of WeBuild Inc. (WeBuild), a construction firm admittedly unlicenced in Nassau County, testified that WeBuild sent two men to the premises for six or seven day to perform certain services. These included: 1. Hallway bathrooms — reattach vanities to wall and reseal, caulking at tub and clean marble and re-grout, 2. Master Bathroom — Reattach vanity, seal vanity, clean and re-grout marble, 3. Powder room — reattach sink, clean and re-grout marble, 4. First Floor entrance — clean and re-grout marble, 5. Kitchen — clean and re-grout marble, 6. Living Room — Seal gap at front window, and, 7. Front yard — Re-attach fence and clean rubbish (remove approximately 150 30 gallon bags of trash). Respondent admitted, however, that although he was billed $2,250.00 for these services from this unlicenced contractor, he had not yet paid for them.
Petitioner's position is that he is not responsible for these expenses because the respondent saw the premises as it existed prior to the lease, agreed to take it in that condition and then acknowledged same by signing the lease which contained a provision that stated, "Tenant acknowledges receipt of house in a renovate [sic] clean and presentable fashion . . ." Further, the petitioner posits that he is not responsible for any subsequently needed repairs because of another lease provision that states, "Tenant shall . . . make all necessary repairs in every way, other than structural repairs."
Respondent's reply to petitioner's argument is that Real Property Law Section 235-b provides that a landlord will not be relieved of his responsibility to make repairs to residential rental property and to provide habitable space that is fit for human occupancy, citing to R.P.A.P.L 235-b; Koch v. McQueen, 192 Misc 2d 342 (App. Term 2nd Dept. 2002).
Real Property Law Section 235-b provides that in every written or oral lease or rental agreement for residential premises that the landlord shall be deemed to covenant and warrant that the premises leased or rented and all areas used in connected therewith are fit for human habitation and for the uses reasonably intended by the parties. Section 235-b(1) additionally provides that the occupants of such premises shall not be subjected to any conditions which would be dangerous hazardous or detrimental to their life, health and safety. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. RPL 235-b(2); see also, Houston Realty Corp., v. Castro, 94 Misc 2d 115 (Civ.Ct. New York Co. 1978); Semans Family Limited Partnership v. Kennedy, 177 Misc 2d 345 (Civ.Ct. New York Co. 1998).
The problem with respondent's argument in the case at bar, however, is that it does not appear germane to the great majority of conditions corrected by the tenant. All of the cleaning, scrubbing, re-grouting, re-attaching and rubbish clean-up, while certainly desirable, do not appear of such significance to invoke R.P.A.P.L 235-b. Furthermore, as previously noted, WeBuild's bill was not, at the time of trial, paid.
As for the replaced gutters and the repaired heater, however, it is clear from the evidence adduced at trial that the former was necessary to keep rain water from further entering the house and the latter was necessary to provide the respondent with warmth and, thus well within the ambit of R.P.A.P.L 235-b. Respondent's second counterclaim is granted to the extent of $86.94 for the repair to the heating system and $575.00 for the replacement of the gutters.
Respondent's third counterclaim for moving and storage charges incurred by the respondent to prevent damage to the respondent's belongings in the amount of $871.72 as well as his forth counterclaim for the return of his security deposit in the amount of $3,700.00 is also granted based upon all this court's findings that, taken together, the condition of the premises gave rise to, at the very least, a partial actual eviction.
This constitutes the decision and order of this Court.
So ordered.