Opinion
Index No.: L&T 86881/2012
03-05-2013
L.E.S.P.M.H.A., INC., Petitioner-Landlord v. ANDRES BIEL 295 East 10th Street, Apt. NEW YORK, NY 10009 Respondent "JOHN DOE" AND "JANE DOE" Respondents-Occupants
SPERBER DENENBERG & KAHAN PC Attorney for Petitioner ANDRES BIEL Respondent OLIVIA BIEL Respondent
DECISION & ORDER
HON. SABRINA B. KRAUS
BACKGROUND
The summary holdover proceeding was commenced by L.E.S.P.M.H.A., INC (Petitioner) against ANDRES BIEL (Respondent) based on allegation that Respondent has breached a substantial obligation of his tenancy by failing to pay the rent in a timely manner. The proceeding was originally returnable on November 27, 2012. Respondent did not appear but Olivia Biel did appear.
Ms. Biel submitted an answer orally, as noted on the file, which asserts that Petitioner failed to name her and that she is a necessary party, that she took over or succeeded to Mr. Biel's tenancy effective June 1, 2012 and that there have been no prior nonpayment proceedings brought against her, that Andres Biel surrendered possession of the subject premises in June 2012 and that she has the right to succeed to his tenancy.
The proceeding was adjourned to December 20, 2012, on which date it was adjourned to January 4, 2013, for Ms. Biel to obtain counsel. On January 4, 2013, Ms. Biel entered into an agreement with Petitioner which stated that she appeared in the proceeding and was substituted for Jane Doe as a party herein. Ms. Biel represented that Andres Biel was her son, and that he has permanently vacated the Subject Premises. The stipulation adjourned the proceeding to February 1, 2013, for Ms,. Biel to provide a notarized letter from her son confirming that he had permanently vacated, and for Ms. Biel to pay $7674.46 in arrears. The stipulation further provided "(a)lternatively, respondent may seek to resolve succession with landlord directly. Respondent was formerly on lease but she vacated to Puerto Rico in 07 but alleges she has returned."
On February 1, 2013, Respondent failed to appear and the proceeding was adjourned to February 26, 2013 for an inquest . On February 26, 2013, the Respondent failed to appear and the court held an inquest and reserved decision.
THE PLEADINGS
Petitioner issued a seven day notice of termination naming Respondent only on October 11, 2012. The notice asserted that Respondent was in violation of a July 29, 2004 lease agreement between Petitioner and Olivia Biel, which had been most recently renewed pursuant to a written agreement1 dated July 6, 2011 between Petitioner and Respondent. The notice asserted Respondent had paid rent late causing Petitioner to commence nonpayment proceedings, and specifically referenced Index Nos 80917/11, 62146/11, 56182/2010 as well as two proceedings from 2006 and 2007. The notice further asserted that as of October 2012, Respondent was in arrears in the amount of $4,732.81. The notice terminated Respondent's tenancy effective October 29, 2012 an was served by regular mail On October 16, 2012.
The petition is dated November 7, 2012, and the notice of petition has the stamp of the clerk on November 8, 2012. It was served on November 16, 2012. The affidavit of service is ambiguous. It asserts both personal service and service on a person of suitable age and discretion. It asserts that service was on Andres Biel personally, but describes Mr. Biel as a female aged 35-40 years old. A mailing was also done on November 16, 2012.
At the inquest the Petitioner offered the following documents into evidence:
- A deed between the City of New York and The People's Mutual Housing Association of the Lower East Side, Inc. (PMHALES) Dated September 13, 1990 indicating the grantee became the owner of the Subject Building as of said date.
- A certified MDR for the building dated September 14, 2012.
- A certified printout from DHCR for the building for 2008 through 2012.
-A Lease agreement between PMHALES and Olivia Biel dated July 1, 1992.
-April 17, 2007 letter from Petitioner to Respondent regarding move out of Olivia Biel and transfer of Section 8 voucher.
-October 25, 2007 approval of contract rent for Respondent.
-Package of documents dated July 2008 labeled Lease Renewal for Cross Subsidy program.
-Executed lease renewal dated July 28, 2010.
-Un-executed lease renewal offers dated July 2011 and July 2012.
- Rent history report dated Feb 25, 2013, two page version and one page version.
-Copy of a Marshal's notice of legal possession from index No 80917/11
Additionally, the court has requisitioned and takes judicial notice of the contents of the files from Index Nos. 56182/2010, 62146/2011, and 80917/2011.
Petitioner's counsel declined an opportunity to offer the court evidence from the 2006 and 2007 proceedings referenced in the predicate notice, and seeks instead to rely solely on the three proceedings from 2010 and 2011.
2010 PROCEEDING
In 2010, Petitioner sued Respondent for nonpayment of rent under Index Number 56182/2010. The petition sought $6,799.49 in arrears at a monthly rent of $885.20 for a period covering July 2009 through February 2010. Respondent filed an answer dated April 20, 2010 which asserted a Section 8 problem and a pending one shot deal application. The proceeding was initially returnable on April 27, 2010, and was adjourned by the parties pursuant to a stipulation to May 18, 2010 for Respondent to subpoena Section 8.
On May 18, 2010, the parties entered into a stipulation which provided that HPD Section 8 has appeared and asserted that Respondent no longer received a subsidy, and that the subsidy had been terminated in April 2009 for "no rent hardship." Respondent consented to the entry of a judgment in the amount of $9285.09 and agreed to pay by June 16, 2010. No repairs were asserted. On July 14, 2010, the parties entered a second stipulation to pay arrears of $6171.40 due through July by August 15, 2010. On October 1, 2010, Northern Manhattan Legal Services, appeared on behalf of Respondent and the parties through counsel stipulated to pay the remaining arrears of $3674.16 as of said date. That was the last court date in the proceeding.
INDEX NO 62146/2011
Petitioner served another three day notice dated February 25, 2011, which sought $2735.28 in arrears for a period covering December 2010 through February 2011, at a monthly rent of $911.76. On March 30, 2011, Petitioner filed a petition. Respondent never filed an answer or appeared in said proceeding and Petitioner never applied for a default judgment. The court does not find that this proceeding serves as a basis for the underlying cause of action.
INDEX NO 80917/2011
Petitioner served a three day demand dated August 10, 2011, seeking $5967.46 in arrears for a period covering February 2011 through August 2011, at a monthly rent of $932.27. The petition issued on September 6, 2011. Respondent failed to answer and Petitioner applied for and received a default judgment. The warrant of eviction issued November 29, 2011.
Respondent moved for an order to show cause returnable February 9, 2012 . On said date, the parties entered a stipulation agreeing that there was $11,561.08 in arrears and staying execution of the warrant through February 29, 2012 for payment of same. Respondent acknowledged no repairs were necessary in the stipulation.
Respondent was evicted on March 21, 2012. Respondent moved for a post eviction order to show cause on March 22, 2012. The court issued an order staying re-letting and removal through March 31, 2012, for Respondent to pay $13,193.35 in costs and arrears and be restored to possession. On March 30, 2012, Respondent moved for an extension and the request was granted pursuant to an order which provided that Respondent had paid $7694 in arrears to date and affording Respondent until April 21, 2012 to pay the remaining $3300 in costs and arrears. Respondent paid and his tenancy was reinstated.
DISCUSSION
To establish a prima facie case in a holdover proceeding based on chronic rent delinquency Petitioner must establish that it was require to commence frequent nonpayment proceedings in a relatively short period of time (2564 Co. v D'Addario 35 Misc.2d 176). However, the court must also consider the number and frequency of the proceedings in the context of the entire circumstances surrounding the nonpayment of rent (Green v Stone 160 AD2d 367).
The particular circumstances in this proceeding do not support petitioner's request for relief. Petitioner failed to name and serve Olivia Biel. Olivia Biel was the original tenant of record. Although there is a letter from Petitioner dated April 17, 2007, which references Ms. Biel departing, the agreements suggest Ms. Biel remained as a household member after 2007. Specifically, the renewal executed on July 3, 2008, was for a two year period through June 30, 2010. The occupants of the apartment on the annexed income certification were listed as Andres Biel, Head of household, Olivia his mother, and Kiana his sister. As of the date of said document Respondent was approximately 20 years old and his younger sister was approximately eight years old. At that time Petitioner submitted a request to section 8 HPD to process the increase for the renewal, both Respondent and his sister were listed as full time students with no income. Similarly, the income certification attached to the 2010 renewal asserts that Olivia remained in occupancy as a household member during this period.
No lease renewals were signed by Respondent or any member of the household for any period after June 30, 2011, and therefor it is unclear whether there was an agreement by Respondent to pay the rent sued for in the proceeding under Index Number 80917/2011.
The deed and the regulatory agreement for the Subject Premises indicate that it is designated as low income housing. The HAP Contract limits the Respondent's obligation to pay rent to her share of the contract rent. The HAP contract provides that Petitioner shall not terminate the tenancy of the Family except for serious or repeated violation of the terms and conditions of the lease, violation of law or other good cause.
The original lease agreement also has annexed to it a one page document labeled Section 8 Certificate Program labeled Landlord-Tenant Lease Agreement which provides that the tenant is only liable for their portion of the rent and further provides :
In the event that the Family Participation Certificate shall terminate pursuant to Paragraph 8 thereof prior to the expiration of this lease, then this lease shall terminate and the tenant shall be entitled to enter into a separate agreement with the Landlord for the remaining term of this lease at the total monthly rent provided herein ... . If the tenant fails to execute such lease within thirty days after tender thereof by landlord, then the Landlord may take possession of said premises by instituting summary proceedings.
However, no new lease agreement separate and apart from renewals of the original rent stabilized lease was ever executed by the parties. It is well settled that absent a showing by Petitioner of a new agreement to pay rent after the termination of a Section 8 subsidy a section 8 tenant protected by rent stabilization does not become liable for the full contract rent (835-37 Trinity Ave HDFC v Royal 26 Misc3d 1240(A); see also Pinnacle Bronx West LLC v Jennings 29 Misc3d 61). A renewal lease under rent stabilization must be on the same terms and conditions as the original lease and therefore a renewal lease can not constitute such an agreement (id).
Additionally, Petitioner offered no independent documentation at trial to prove that the section subsidy was terminated or establish the details regarding the termination of the section 8 subsidy. The only evidence in that regard is a hearsay statement incorporated in the stipulation in the 2010 proceeding.
Based on the totality of the circumstances described above, the court finds Petitioner has failed to establish a cause of action for chronic rent delinquency. Given: the failure to prove the termination of the section 8 subsidy; and the fact that this is a building designated for low income persons by deed and regulatory agreement; and the fact that Petitioner failed to name and serve all the adult members of the household; and the fact that Petitioner relied essentially only on two non-payment proceedings, each of which were resolved within three court dates with finality, and the first of which was the first time it was asserted that Respondent's subsidy had been terminated , the court finds that the total of the circumstances do not warrant termination of this long term regulated tenancy based on the two previous non-payment proceedings the court has considered.
Based on the forgoing the proceeding is dismissed.
This constitutes the decision and order of this court. Dated: March 5, 2013
Petitioner may pick up its exhibits from the courthouse, second Floor, Window 9 within 30 days. After said period the documents may be destroyed in accordance with administrative directives.
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New York, New York
________________________
Hon. Sabrina Kraus
SPERBER DENENBERG & KAHAN PC
Attorney for Petitioner
ANDRES BIEL
Respondent
OLIVIA BIEL
Respondent