Opinion
70391/2011
01-03-2012
Jamsol Realty, LLC, Petitioner, v. Yvelisse German, "John Doe" and "Jane Doe", Respondents.
Attorney for Petitioner: Rosenblaum & Bianco, LLC (Joan Rubel, Esq., Of Counsel) Attorney for Respondents: Bushwick Housing & Legal Assistance (Joanna A. Sorocki, Esq., Of Counsel)
Attorney for Petitioner: Rosenblaum & Bianco, LLC (Joan Rubel, Esq., Of Counsel)
Attorney for Respondents: Bushwick Housing & Legal Assistance (Joanna A. Sorocki, Esq., Of Counsel)
Phyllis K. Saxe, J.
A lease is a contract, that is, a form of agreement made by a landlord with a tenant for the occupation of real property (See 74 NY Jur Landlord and Tenant § 2). And thus, the principles of contracts govern landlord-tenant actions (see generally, 219 Broadway Corp. v. Alexander's Inc., 46 NY2d 506 [1979]). However, when contract law intersects with a 28-year, rent stabilized senior citizen who, as in this case, initially advises the landlord in writing that she will vacate at the end of her lease but attempts to change her mind some weeks later, the principles of equity may be considered.
The underlying facts are these. Petition is the landlord of the building known as 174-176 Linden Street, Brooklyn, New York. As it was required by the Rent Stabilization Code (9 NYCRR § 2523.5), petitioner timely offered the tenant a renewal option in connection with the lease, set to expire on September 15, 2010. This option to renew was provided to the tenant in standard written format which offered a choice of 3 options: a 2 year lease, a 1 year lease or vacate options. Respondent responded by checking the box on the form indicating that she did not intend to renew her lease and would vacate the premises at the end of her term which was on September 15, 2010. She mailed the form to the landlord who received it in due course.
The renewal option offered by the landlord and the tenant's acceptance of one of the options offered constituted a written modification of the lease or contract between the landlord and tenant - the modified term being the date of the tenant's surrender of the premises and consequently her tenancy rights. Put even more succinctly, by agreement with the landlord, the tenant agree to vacate her apartment on or before the end of her lease- September 15, 2010.
About 3 weeks before the vacate date, the tenant changed her mind and in a letter from the managing agent of petitioner dated September 1, 2010, the agent stated: "The other day you informed me that you had changed your mind and wanted to stay in the apartment." This communication from the tenant came well after she returned the Lease Renewal offer in June 2010 indicating that she was not going to renew the lease and would vacate the apartment on or before September 15, 2010.
The petitioner-landlord attempted to "set the record straight" by writing the letter to the tenant in which he re-affirmed that they had "accepted" her refusal to renew and thus expected her to vacate by September 15, 2010.
In July 2010, Ms. German stopped paying rent and the petitioner-landlord commenced a nonpayment action, which was ultimately resolved in March 2011. In that nonpayment proceeding, the landlord's counsel repeatedly indicated that the payment of rent and thereafter use and occupancy, did not prejudice his right to commence a holdover action. Thereafter, the landlord commenced this holdover action and now seeks summary judgment on the tenant's non-renewal letter. The tenant cross-moves to dismiss the Petition stating that through its nonpayment action a tenancy by estoppel was created in favor of the tenant, and seeks to vitiate the non-renewal letter by way of seeking the appointment of a Guardian ad litem ("GAL") for the tenant on alleged "incapacity".
If one applies principles of contract law to this transaction, it is evident that the terms of the lease as modified, negate any further lease term for the tenant and seemingly mandates her departure at the end of her lease term.
The tenant's attempt to change her mind and rescind what she had written can be described as a mistake and due to the fact the tenant, a somewhat elderly woman, was confused as to her plans for the future. This is aptly termed mistake, but of a unilateral variety, from what the law does not generally offer relief absent fraud or inequitable conduct (see Angel v. Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 369 [2007]). Respondent's cross-motion to appoint a Guardian ad litem ("GAL") however is denied. There is simply an insufficient basis offered for such appointment. Respondent's assertion that she has a mental disability and suffers from depression is not sufficient to grant the GAL. There is no other documentation, such as the input of a psychiatrist. In any event, respondent has counsel in place who can adequately defend her. The decision not to renew may have been imprudent but not evidence of incapacity.
In addition to the foregoing analysis, it is appropriate to consider in this context the application of the doctrine of waiver, which was been defined as the intentional abandonment or relinquishment of a known right or advantage (see NY Jur 2d Waiver § 379). Here, the tenant's act of signing that part of the renewal option form indicating a desire not to renew her lease and to surrender possession at the end of her lease term constituted a waiver of her existing rights under the Rent Stabilization Law.
But, the tenant here is not without remedy, and although her excuse is somewhat thin, principles of equity have often been invoked when a tenant has failed, through neglect or inadvertence, to adhere to certain notice requirements contained in the lease and the result would be a forfeiture (J.N.A. Realty Corp. v. Cross Bay, 42 NY2d 392 [1977]).
In commercial leases, the requirements for granting such equitable relief from forfeiture have been set out as follows:
"Equity will relieve a tenant from a failure to timely exercise an option in a lease to renew or purchase if (1) the tenant in good standing made substantial improvements to the premises and would otherwise suffer a forfeiture, (2) the tenant's delay was the result of an excusable default, and (3) the landlord was not prejudiced by the delay" (Vitarellie v. Excel Automotive Teach, Ctr., Inc., 25 AD3d 69 [2006]).Even the above cited requirement of substantial improvements has been overlooked where the commercial tenant demonstrated that a loss of good will would result from the forfeiture (see Sy Jack Realty Co. v Pergament Sysosset Corp., 27 NY2d 449 [1971]; 135 East 57th Street LLC v. Daffy's Inc., (2011 WL 5839575).
While courts have recognized the application of equity to avoid forfeiture in commercial leases, courts have likewise recognized the importance of preventing the forfeiture in rent regulated tenancies (see Jillandrea Realty Assoc. V. Brown, NYLJ Oct. 18, 1994, at 11, col 1 [App Term 1st Dept]); 5700-5900 Arlington Ave. Assoc v. Dogan, 135 Misc 2d 338 [Civ. Ct., Bronx Co. 1987].
The landlord here points to the case of Livbros v Vanderburgh (179 Misc 2d 736 [Civ. Ct., Kings Co. 1999]), in which the tenant, having made known to the landlord his intention to vacate the Rent Stabilized premises upon termination of the lease, was held to have terminated his tenancy and was not permitted to retract his voluntary termination.
The difference between that case and this one is that a decision for the tenant in Livbros would have prejudiced the landlord, who has already re-rented the subject apartment, and also the new tenant, who had already abandoned his apartment in order to move into the subject premises. Here, on the other hand, the landlord has not as yet re-let the subject apartment so there was no demonstration of prejudice. In fact, the petitioner brought a 6-month nonpayment action which was finally settled in March 2011 and only after 6 months of litigation, did the landlord institute the holdover proceeding.
Accordingly, there is little reason to believe that the landlord has been prejudiced and based upon the foregoing analysis, I deny the petition and based upon the foregoing analysis, I deny both the petition and the cross motion.
Rather, I accept the tenant's excuse and to avoid forfeiture, I direct the landlord to re-serve the previously served renewal option upon the tenant who shall within ten days from receipt, check off a renewal of either one year or two years. Upon transmitting that renewal notice to the owner with the applicable increase in security deposit, the tenant's renewal lease shall be deemed to have continued from September 15, 2010. If the tenant fails to return the corrected renewal option within ten days from receipt, the landlord may move this Court for immediate possession based upon these papers. So Ordered.
Phyllis K. Saxe
J.H.C.