Opinion
No. 2013–1905 N C.
02-23-2015
Margaret A. MADDEN, Appellant–Respondent, and Donna Bernardino, Plaintiff, v. Sherlyne JUILLET, Respondent–Appellant.
Opinion
ORDERED that the judgment is modified by reducing the amount of the award to plaintiff Margaret A. Madden to the principal sum of $476.67; as so modified, the judgment is affirmed, without costs.
In this small claims action, Margaret A. Madden (plaintiff) appeals, on the ground of inadequacy, from a judgment of the District Court, which, after a nonjury trial, awarded her the principal sum of $875 against defendant, the former tenant of the lower level of plaintiff's house, but failed to award plaintiff $1,200 that she had sought for the attorney's fees she had allegedly incurred in bringing a prior nonpayment proceeding against defendant. Defendant cross-appeals from the judgment, arguing that she does not owe the $800 which was awarded to plaintiff for April 2012 rent because the premises was an illegal basement apartment and because plaintiff breached the warranty of habitability.
In our view, the District Court properly declined to award plaintiff the attorney's fees she sought, as plaintiff failed to prove that she had paid the fees. In any event, in view of the mixed outcome of the prior nonpayment proceeding—plaintiff had sued defendant for $2,400 and had been awarded only $800—it cannot be said that plaintiff was the prevailing party in that proceeding (see e.g. Mosesson v. 288/98 W. End Terrace Corp., 294 A.D.2d 283 [2002] ).
Contrary to defendant's contention, the absence of a certificate of occupancy for the lower-level apartment does not bar the recovery of rent (see Sinclair v. Ramnarace, 36 Misc.3d 150[A], 2012 N.Y. Slip Op 51671[U] [App Term, 9th & 10th Jud Dists 2012] ; Pickering v. Chappe, 29 Misc.3d 6 [App Term, 2d, 11th & 13th Jud Dists 2010] ; Schweighofer v. Straub, 23 Misc.3d 132[A], 2009 N.Y. Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2009] ; Corbin v. Briley, 192 Misc.2d 503 [App Term, 9th & 10th Jud Dists 2002] ; Tuzel v. Reilert, NYLJ, Dec. 3, 1996 [App Term, 9th & 10th Jud Dists] ).
With respect to the amount due for April 2012, we note that the issuance of a warrant in a nonpayment proceeding cancels the rental agreement (RPAPL 749 [3 ] ) as of the date that the proceeding was commenced (see Priegue v. Paulus, 43 Misc.3d 135[A], 2014 N.Y. Slip Op 50662[U] [App Term, 9th & 10th Jud Dists 2014] ; Schulte, Inc. v. Cross, 146 Misc. 763 [App Term, 1st Dept 1933] ; 3 Robert F. Dolan, Rasch's Landlord and Tenant–Summary Proceedings § 46:18, at 205 [4th ed 1988] ). Thus, the amounts due plaintiff for the period after the commencement of the prior nonpayment proceeding constitute use and occupancy, not rent. As the rule against apportionment which applies to rent does not apply to use and occupancy (e.g. Vacca v. Balbuena, 25 Misc.3d 132 [A], 2009 N.Y. Slip Op 52176[U] [App Term, 9th & 10th Jud Dists 2009] ; see Towne Partners, LLC v. RJZM, LLC, 79 AD3d 489 [2010] ), defendant is liable only for the portion of April 2012 during which she remained in possession, which, in the circumstances presented, we find was until April 16, 2012. As a result, defendant owes only $426.67 for use and occupancy, which is 16/30 of the $800 monthly rent, and she does not owe the $25 which the District Court awarded plaintiff as a late fee. Consequently, in order to do substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807 ), we reduce the amount of the award to plaintiff by the principal sum of $373.33 ($800 less $426.67) plus $25, for a total reduction of $398.33.
Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $476.67 ($875 less $398.33). We note that defendant's claim that there was a breach of the warranty of habitability in April 2012 was not adequately proven (see Sinclair v. Ramnarace, 36 Misc.3d 150[A], 2012 N.Y. Slip Op 51671[U] ).
MARANO, J.P., TOLBERT and GARGUILO, JJ., concur.