Opinion
18734/2009.
Decided December 21, 2010.
Glenn Backer, Esq., New York, New York, for the Plaintiff.
Defendant Alina R. Rosenthal, Esq., pro se.
Plaintiff Ideal Parking Corp., as landlord, entered into an agreement with defendant Alina Rosenthal, as tenant, on June 1, 1993, to lease a commercial property identified as corner store number one and middle office, located at 903 Sheridan Avenue, Bronx, New York. The lease states that the premises were leased for "professional offices for licensed attorney" and Ms. Rosenthal is an attorney admitted to practice in New York.
The lease term was from June 1, 1993 thorough May 31, 1997, and provided for two five-year extensions. The final extension of the lease term expired on June 1, 2007, at which time Ms. Rosenthal continued to occupy the subject premises. Plaintiff asserts that Ms. Rosenthal failed to pay the rent for the period of October 1, 2008 through April 30, 2009, except for $3000.00 which was paid in December 2008. Ms. Rosenthal was served with a 30 day notice to terminate the month-to-month tenancy dated March 6, 2009, which required her to vacate the premises on April 30, 2009.
Ms. Rosenthal did not the vacate the premises on April 30, 2009, and the Ideal Parking Corp. commenced a holdover proceeding against her in Civil Court, Bronx County on May 5, 2009. The Civil Court action was settled pursuant to a stipulation dated June 4, 2009, whereby Ms. Rosenthal surrendered possession of the premises on that date, without prejudice to pay the landlord's right to pursue all claims for rent arrears, additional rent, use and occupancy and attorney's fees, and without prejudice to Ms. Rosenthal's right to interpose any and all defenses with respect to such claims.
Plaintiff Ideal Parking Corp. commenced the within action on July 15, 2009 and alleges that Ms. Rosenthal became a holdover tenant on June 1, 2007, following the expiration of the lease on May 31, 2007; that she became a month-to-month tenant on December 28, 2007 when she tendered a rent payment of $5,950.51 which the landlord accepted; that the month-to-month tenancy was terminated on April 30, 2009, and that she became a holdover tenant from May 1, 2009 through June 4, 2009.
Plaintiff alleges in its first cause of action that defendant failed to pay all of the base rent, real estate taxes and water charges from the period of December 2007 through April 30, 2009, that a demand for payment was made and seeks to recover the sum of $43,728.13, together with interest.
The second cause of action alleges that defendant was a holdover tenant at the premises, without the landlord's consent for the period of June 1, 2007 through November 30, 2007, and from May 1, 2009 through June 4, 2009 and seeks to recover use and occupancy, based upon paragraph 58 of the lease, for these periods in the sum of $97,903.93.
The third cause of action seeks to recover use and occupancy in the sum of $40,000.00 together with interest, for the same two holdover periods.
The fourth cause of action alleges that the plaintiff breached her obligations under the lease by failing to pay real estate taxes for the period of 2004 through 2007, in the sum of $13,113.00, and seeks to recover this sum together with interest.
The fifth cause of action alleges that the defendant breached the lease by removing certain fixtures from the premises and seeks to recover the sum of $50,000.00 together with interest.
The sixth cause of action for conversion of the same property seeks to recover the sum of $50,000.00 together with interest.
The seventh cause of action seeks to recover legal fees and disbursements, based upon the alleged breach of the lease.
The eighth cause of action for an account stated alleges that plaintiff issued to defendant monthly invoices during the two holdover periods, which were received and retained by defendant without objection, and seeks to recover the sum of $43,728.13.
Defendant served an answer and interposed the affirmative defense of failure to state a cause of action. Plaintiff Ideal Parking Corp., upon the foregoing papers, moves for an order: granting summary judgment on the first, third, and fourth causes of action, severing the second, fifth, sixth, seventh and eighth causes of action, and awarding costs and disbursements.
Plaintiff's motion for summary judgment on the first, third, and fourth causes of action is timely, as the note of issue was filed on April 14, 2010.
With respect to the first cause of action to recover unpaid rent and additional rent for the period of October 1, 2008 through April 30, 2009, plaintiff asserts that Ms. Rosenthal was a month-to-month tenant and that the total amount due and owing is $42,988.25, together with interest. Plaintiff's president, Nelson Tuchman, states in his affidavit that according to a "spreadsheet" defendant sent to counsel, Ms. Rosenthal paid rent from June 2007 through September 2008, plus the sum of $3000.00, which was paid in December 2008. He states that, commencing in July 2008, the agreed upon monthly rent was $6,109.18, with an additional rent of $460.57 in real estate taxes, for a total of $6,569.75.
Ms. Rosenthal, in opposition, states in her affidavit that she was unable to pay rent for the period of October 2008 to April 2009, except for the $3000.00 she paid in December 2008. She asserts that as the landlord accepted monthly rent payments in the amount of $5,489.94 for over a year, it is only entitled to recover the sum of $38,429.58 for rent due from October 1, 2008 through April 30, 2009. She further asserts that a triable issue of fact exists with respect to the amount of the unpaid rent.
Mr. Tuchman, in his reply affidavit, asserts that defendant admission that she owes rent and additional rent for the period of October 1, 2008 through April 30, 2009, constitutes a consent to judgment on the first cause of action in the undisputed amount of $38,429.58. Plaintiff, therefore, requests a judgment in its favor in the sum of $38,429.58, together with interest, and requests that its claim for the balance of $4,558.67 be severed for trial, along with the remaining causes of action that are not the subject of this motion.
In view of plaintiff's admission that she made no rent payments for the months of October 1, 2008 through April 30, 2009 with the sole exception of a single payment of $3000.00 in December 2008, plaintiff's request for summary judgment on the first cause of action is granted solely on the issue of liability. However, as the parties sharply dispute the amount due for said period, a triable issue of fact exists with respect to damages, and the court therefore declines, to enter a judgment in the sum of $38,429.58, together with interest, and sever the remainder of plaintiff's its claim for the balance of $4,558.67. The amount of rent and additional rent due to plaintiff for said period shall be determined at trial.
Plaintiff, in its complaint, seeks to recover the sum of $7,445.72, plus interest, on the third cause of action for use and occupancy for the period of May 1, 2009 through June 4, 2009. Although Ms. Rosenthal does not dispute that she was a holdover tenant for said period, she asserts that the reasonable value of use and occupancy must be determined by the court. She asserts that after she vacated the premises, the landlord re-let it for $3,300.00 a month, renovated the space to include a new HVAC unit, and included all utilities in the monthly rent.
Plaintiff, in its reply, asserts that the value of the use and occupancy for the subject holdover period is based upon the rent and additional rent of $6,596.75 a month, which defendant had paid for the months of July, August and September 2008. Plaintiff further asserts that the defendant has failed to produce any evidentiary facts in admissible form which establish that the fair value of the use and occupancy for the holdover period of May 1, 2009 through June 4, 2009 is less than $6,596.75.
It is well settled that "[a]n occupant's duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties." ( Eighteen Associates, LLC v Nanjim Leasing Corp., 257 AD2d 559, 559-60 [internal quotation marks and citations omitted]; see also, De Camp v Bullard, 159 NY 450, 454 [1899]; BGB Realty, LLC v Annunziata, 2006 WL 1844064, 2006 NY Slip Op 51270[U] [App T 2nd Dept. 2006]).
In determining the value of use and occupancy, the rent reserved under the lease is not conclusive, although it is certainly of some probative value. "Reasonable value" is fair market value ( see, Beacway Operating Corporation v Concert Arts Society, Inc., 123 Misc 2d 452 [NYC Civ. Ct. New York County 1984]). It is the landlord's burden to prove the reasonable value ( 438 W. 19th St. Operating Corp. v Metropolitan Oldsmobile, Inc., 142 Misc 2d 170 [NYC Civ. Ct. New York County 1989]), and the Court may only fix a figure after having received competent evidence of the value of the premises. ( see Zombek v Williams, 124 AD2d 524 [1st Dept. 1986]).
Here, the landlord has only submitted evidence of the amount the tenant was paying during the period she was a month-to-month tenant, which was based upon the expired lease. Plaintiff has failed submit any other evidence of the reasonable value of the subject property. Since plaintiff has failed to satisfy its initial burden of proof with respect to the reasonable value of use and occupancy of the subject premises for the period of May 5, 2009 through June 4, 2009, it is unnecessary to analyze the sufficiency of the defendant's opposition papers with respect to this issue ( see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Sut v City Cinemas Corp. , 71 AD3d 759 [2nd Dept. 2010]; Vera v Soohoo , 41 AD3d 586 , 588 [2nd Dept. 2007]; Picart v Brookhaven Country Day School , 37 AD3d 798 , 799 [2nd Dept. 2007]; South v K-Mart Corp. , 24 AD3d 748 [2nd Dept. 2005]; Nationwide Prop. Cas. v Nestor , 6 AD3d 409 [2nd Dept. 2004]).
Therefore, that branch of the plaintiff's motion which seeks summary judgment on the third cause of action for use and occupancy is granted solely as to liability and the value of said use and occupancy shall be determined at trial.
That branch of plaintiff's motion which seeks summary judgment on the fourth cause of action for breach of the lease for failure to pay real estate taxes for the period of 2004 through 2007, in the sum of $13,113.00, is denied. Plaintiff, in support of this branch of the motion seeks to rely upon a document dated November 19, 2007, and addressed to Ms. Rosenthal, setting forth amounts representing 15 percent of the real estate tax for 2006/2007, 2005/2006 and 2004/2005, and states that there is a total outstanding balance of $13,113.02. This document makes no demand for payment.
The parties' lease provides that "a copy of the tax bill of the City of New York shall be sufficient evidence of the amount of the Real Estate Taxes and for calculation of the amount to be paid by tenant." Plaintiff has failed to establish that it provided the tenant with a copy of the tax bill for the relevant years, and that it billed the defendant for the appropriate amount for the period in question.
Plaintiff's moving papers indicate that the defendant paid at least some portion of the real estate taxes in 2007. Plaintiff does not state whether these payments were for the 2006/2007 tax year or any other tax year. Defendant in opposition asserts that she provided the plaintiff with a breakdown of all payments made during the relevant period, including payments for real estate taxes. The Court finds that the evidence submitted by plaintiff is insufficient to establish that defendant failed to pay the real estate taxes as required under the lease for the entire period in question. Therefore, the court need not consider the sufficiency of the defendant's opposing papers ( see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, supra). That branch of plaintiff's motion which seeks summary judgment on the fourth cause of action is denied.
That branch of plaintiff's motion seeking dismissal of defendant's affirmative defense of failure to state a cause of action, is granted, as all of the causes of action set forth in the complaint are sufficiently pled. In view of the foregoing, plaintiff's motion is granted to the extent that plaintiff is granted summary judgment on the issue of liability on the first and third causes of action, and the amount of damages on these causes of action shall be determined at the trial of the remaining claims.
That branch of plaintiff's motion which seeks summary judgment on the fourth cause of action is denied.
That branch of the plaintiff's motion which seeks to dismiss defendant's affirmative defense of failure to state a cause of action is granted.
The foregoing represents the decision, opinion, and order of the Court.