Opinion
No. 2013–1069 Q C.
2014-10-3
PARK HAVEN, LLC, Respondent, v. Terry ROBINSON, Appellant.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated May 15, 2013. The order denied tenant's motion to vacate a default final judgment in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, tenant's motion to vacate the default final judgment is granted, and the matter is remitted to the Civil Court for all further proceedings.
In this nonpayment proceeding, tenant pro se appeals from an order denying her motion to vacate a default final judgment awarding landlord possession and the sum of $11,150.45, and dismissing tenant's counterclaims.
In support of her motion to vacate the default final judgment, tenant asserted, among other things, that her rent was $1,449 per month and that the award to landlord of the sum of $11,150.45 was predicated on a lease provision which improperly allowed landlord to charge her an alleged “legal regulated rent” of $2,509 if she failed to timely pay her rent by the fifth of the month. The Civil Court denied tenant's motion, noting, among other things, that tenant admitted owing $2,096 and that tenant did not have the $2,096.
In our view, the Civil Court improvidently exercised its discretion in allowing the default final judgment in the amount of $11,150.45 to stand, as the lease's rent “discount” scheme provides for an increase that is, in fact, nothing more than an unconscionable late charge and penalty, in that the increase is excessive and grossly disproportionate to any damages that could be sustained as a result of tenant's failure to pay rent on time ( cf. Sandra's Jewel Box v. 401 Hotel, 273 A.D.2d 1 [2000]; 943 Lexington Ave. v. Niarchos, 83 Misc.2d 803 [App Term, 1st Dept 1975]; VP Vil. Park, LLC v. Victor, 40 Misc.3d 1233[A], 2013 N.Y. Slip Op 51418[U] [Pleasant Valley Just Ct 2013]; see also Millenium Envtl., Inc. v. City of Long Beach of State of NY, 35 AD3d 408 [2006]; contra 190 Washington Ave. Assoc., Inc v. Velasquez, 10 Misc.3d 1060 [A], 2005 N.Y. Slip Op 52038[U] [Nassau Dist Ct 2005]; Clinton Realty, LLC v. Beazer, 195 Misc.2d 786 [Nassau Dist Ct 2001] ).
Accordingly, the order is reversed, tenant's motion to vacate the default final judgment is granted “for sufficient reason and in the interests of substantial justice” ( Woodson v. Mendon Leasing Corp ., 100 N.Y.2d 62, 68 [2003] ) and the matter is remitted to the Civil Court for all further proceedings.