Opinion
044-20
05-20-2021
Linda Magnano, Petitioner, v. Philip A. Stewart, JANE DOE and JOHN DOE, Respondents.
Anthony M. Giordano, Esq. 23 Spring Street Ossining, NY 10562 Attorney for the petitioner Philip A. Stewart Respondent
Anthony M. Giordano, Esq. 23 Spring Street Ossining, NY 10562 Attorney for the petitioner Philip A. Stewart Respondent Jeffrey W. Gasbarro, J.
The following papers were considered in connection with this holdover proceeding: Notice of petition, verified petition, two exhibits, affidavit of service 1-5 Affidavit of service 6 Exhibits offered at the April 29, 2021 inquest (five pages) 7 Hand-delivered submission filed by the petitioner on April 30, 2021 (after the hearing was closed) Not considered
This summary proceeding to recover possession of real property, for an award of damages representing unpaid rent, and for other incidental damages and attorney's fees is resolved as follows:
FACTUAL & PROCEDURAL HISTORY
The verified petition alleges that the parties entered into a residential lease with an initial term commencing March 10, 2019 and ending July 30, 2019. Thereafter, the leasehold allegedly became a month-to-month tenancy. On or about February 21, 2020, the petitioner allegedly served the respondent with a 30-day notice to quit. The petition alleges that the respondent thereafter held over.
On August 20, 2021, the petitioner commenced this holdover proceeding to recover possession of the premises, to recover rent then allegedly due and owing in the sum of $6,265, the respondent's portion of the electric bill then totalling $154, attorney's fees in the amount of $1000, plus costs and disbursements. After several adjournments, both parties appeared in court on April 15, 2021. The matter was adjourned to April 29, 2021 for a hearing on the petition.
On April 29, 2021, only the petitioner appeared in court for the hearing. The petitioner's counsel advised that the petitioner was no longer seeking possession of the premises, as the respondent voluntarily vacated the apartment after the proceeding had commenced, and was seeking only a money judgment for rental arrears plus other incidental costs.
Insofar as the petitioner is no longer seeking an award of possession of the premises, the Court finds that the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("CEEFPA") is not applicable to this matter.
Upon the respondent's default in appearing, the Court conducted an inquest at which the petitioner testified, under oath, that the respondent had rented an apartment under a lease and had failed to make the $875 payment due in February 2020. The respondent made no other payments or partial payments after that date.
The petitioner testified that in July 2020—a date which the Court notes was months after the respondent was served with a notice to quit—she served the respondent with a notice of "rent increase" purportedly increasing the base rent from $875 per month $920 per month. The petitioner offered a copy of this notice into evidence. The petitioner offered no testimony that the respondent ever agreed to this unilateral rent increase, or that he made any partial payments after the purported rent increase was served.
Additionally, the petitioner seeks to recover the respondent's portion of the electric bill, which the petitioner testified totaled $263.01. The petitioner testified that the respondent refused to return the keys to the apartment. The petitioner seeks to recover the sum of $142.22 for the cost to have a locksmith re-key the locks, and she offered into evidence a receipt for such costs. According to the receipt, the locks were changed on October 31, 2020. The petitioner also sought to recover for the costs of cleaning the apartment, the costs to replace shower curtains, and attorney's fees.
DISCUSSION
1. The petitioner is entitled to recover rent plus use and occupancy
For the reasons that follow, the Court finds that the petitioner is entitled to an award of rent, as well as use and occupancy, in the amount of only $875 per month for the nine-month period from February 1, 2021 to October 31, 2021 (the date the locks were re-keyed), for a total award in the principal sum of $7,875.
The 30-day notice to quit, served on or about February 21, 2020, had the legal effect of terminating the respondent's tenancy. From that date forward, the respondent became a holdover tenant. Any damages attributable to the respondent's continued possession of the premises were not due under the parties' lease, but rather were due as use and occupancy for the reasonable value of the apartment (see Matter of First Am. Tit. Ins. Co. v Cohen, 163 AD3d 814, 816 [2d Dept 2018]). "The obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant" (Eighteen Assocs. v Nanjim Leasing Corp., 257 AD2d 559, 559 [2d Dept 1999]). "Rather, an 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" (id. at 559-560 [internal quotation marks omitted]).
Under these circumstances, the Court finds that reasonable use and occupancy is the amount of rent the respondent was paying—$875 per month—prior to the petitioner's service of the notice to quit (see Diocese of Buffalo v McCarthy, 91 AD2d 213, 222 [4th Dept 1983]; Earl v Nalley, 273 AD 451 [3d Dept 1948]; see also Andrew Scherer & Fern Fisher, Residential Landlord Tenant Law in New York § 8:6 ["the best measure of an appropriate amount for use and occupancy is the amount of rent the tenant was liable for prior to the termination of the tenancy"]).
The Court declines to award the petitioner the greater sum of $920 per month for the purported "rent increase" the petitioner attempted to unilaterally impose beginning September 1, 2020. There is no proof that the respondent accepted the proposed rent increase. Absent a meeting of the minds, no contractual relationship was formed between the parties for the period of the purported rent increase (see Express Indus. & Term. Corp. v NY State DOT, 93 NY2d 584, 589 [1999] ["[C]ourts look to the basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract"]). Moreover, upon the termination of the tenancy, the petitioner's right to recovery was no longer governed by contract, but by the reasonable value of the monthly use and occupancy, which the Court has determined to be $875 per month (see Dezer Props. II v W. 20th Enters. Corp., 2021 NY Slip Op 31185[U], *6 [Sup Ct, NY County 2021] ["the plaintiff is only entitled to recover use and occupancy damages equal to the reasonable value of the premises . . . rather than the increased base rent offered in the extension option"]). 2. The respondent's portion of the electric bill, the other other damages sought by the petitioner, and attorney's fees are not recoverable in this proceeding
RPAPL 702, enacted as part of Housing Stability and Tenant Protection Act of 2019 ("HSTPA"), provides: "In a proceeding relating to a residential dwelling or housing accommodation, the term 'rent' shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement" (RPAPL 702). As relevant here, that statute further provides: "No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement" (RPAPL 702 [emphasis added]).
The instant matter is a summary proceeding pursuant to RPAPL article 7 and, therefore, RPAPL 702 is applicable insofar as this proceeding was commenced after that statute came into effect (see 744 E. 215 LLC v Simmonds, 65 Misc 3d 1234[A] [Civ Ct, Bronx County 2019]). Accordingly, since the petitioner may not recover any other fees, charges, or penalties within this summary proceeding, the Court has no power to award the petitioner the respondent's alleged unpaid portion of the electric bill, the locksmith costs, or any other damages sought by the petitioner to clean or repair the apartment (see Beco v Ritter, 190 AD3d 1150, 1152 [3d Dept 2021]).
Further, the Court has no authority to award the petitioner attorney's fees within the context of this proceeding. In addition to RPAPL 702, which on its own precludes an award of attorney's fees within a summary proceeding (see 744 E. 215 LLC v Simmonds, 65 Misc 3d 1234[A] [Civ Ct, Bronx County 2019]), a new amendment to Real Property Law § 234 provides that "[a] landlord may not recover attorneys' fees upon a default judgment" (see Dan M. Blumenthal, Practice Commentaries, McKinney's Cons Laws of NY, RPAPL 702 ["Read in conjunction with newly amended RPL 234, it would appear that landlords are prohibited from seeking legal fees in a residential summary proceeding and, under any circumstances where a tenant default ends in a possessory judgment"]).
The Court's denial of the petitioner's requests for an award of damages pertaining to the electric bill, the locksmith costs, other costs of cleaning and repairing the apartment, and attorney's fees is without prejudice to the petitioner attempting to seek recovery of those damages, if she be so advised, in a separate plenary action (see 44 E. 215 LLC v Simmonds, 65 Misc 3d 1234[A]). The Court does not make any rulings or findings with regard to the merits of those matters.
Accordingly, it is
ORDERED that the petitioner is entitled to a judgment in her favor and against the respondent in the principal sum of $7,875, plus prejudgment interest at the statutory rate of 9% from October 31, 2020, plus statutory costs; and it is further,
ORDERED that petitioner's counsel shall serve respondent with notice of entry of this order within 10 days and provide proof of such service to the Court; and it is further,
ORDERED that petitioner's counsel shall submit a proposed judgment in conformity with this decision and order, on notice to the respondent.
All other relief requested and not herein decided is denied. This constitutes the decision and order of the Court. Dated: May 20, 2021 Ossining, New York HON. JEFFREY W. GASBARRO TOWN JUSTICE