Opinion
No. LT–11–3439.
2012-05-4
RIP VAN WINKLE HOUSE, Petitioner, v. Alison BETTERTON, Respondent.
Anna E. Remet, Esq., Van DeWater & Van DeWater, LLP, Poughkeepsie, for Petitioner. Alison M. Betterton, Respondent, pro se.
Anna E. Remet, Esq., Van DeWater & Van DeWater, LLP, Poughkeepsie, for Petitioner. Alison M. Betterton, Respondent, pro se.
KATHERINE A. MOLONEY, J.
By Affirmation dated March 28, 2012, petitioner seeks to have this Court issue a new warrant of eviction on the grounds that the respondent has violated the stipulation of settlement entered into on November 2, 2011. The respondent has filed opposition to petitioner's application which is dated March 31, 2012. This Court having examined the application, the respondent's opposition, together will all of the papers and proceedings held herein and before, and the Court having duly deliberated herein, determines the application seeking a new warrant as follows:
On October 24, 2011, the petitioner filed a summary eviction proceeding alleging nonpayment of rent against the respondent, ALISON BETTERTON, at the above premises, which premises are part of a performance-based Housing and Urban Development (“HUD”)—subsidized housing project. The matter was scheduled to be heard on November 2, 2011, at which time the parties entered into a consent judgment for $1,761.00, plus $550.00 in attorneys fees. The Court made it clear that no warrant of eviction would be issued for failure to pay attorney fees. On March 29, 2012, the petitioner filed the instant application for breach of the stipulation of settlement. The respondent has opposed the application. Petitioner's application reveals that the respondent has paid a total amount of $1,805.00 in connection with the stipulation of settlement. Again, the total rental arrears amounted to $1,761.00. The $506.00 balance owed to petitioner represents attorneys fees, for which petitioner is not entitled to a warrant of eviction.
The rule of law in a special proceeding pursuant to article 7 of the R.P.A.P.L., is that a court has no jurisdiction to adjudicate a monetary claim other than rent allegedly owed. Tivoli Assoc. v. Wing, 122 Misc.2d 901, 903, 471 N.Y.S.2d 1018 (Civil Ct 1984)citing RASCH, N.Y. Landlord & Tenant [2d ed], Summary Proceedings, § 995; Allyn v. Markowitz, 83 Misc.2d 250, 373 N.Y.S.2d 293 (Rockland County 1975). In the case of a rent regulated tenant, attorney's fees cannot be imposed as “rent” because the rent regulation laws do not permit a landlord to unilaterally charge rents outside the permissible limits of the rent laws. Tivoli Associates v. Wing, 122 Misc.2d 901, 471 N.Y.S.2d 1018 (N.Y.City Civ.Ct.1984). Likewise, tenants whose apartments are subject to housing subsidy programs that limit the amount of rent that can be charged can not be awarded attorney's fees as “additional rent” in order to enable the landlord to obtain a possessory judgment. Crystal World Realty Corp. v. Lei Lei Sze et al, 2001 N.Y. Misc. LEXIS 999, 2001 WL 1635430 (App. Term 1st Dept.2001)citing Newshan v. Baranowski, N.Y.L.J., May 31, 1995, p. 31, col. 6 (App. Term, 2nf Dept.). C. Silber et al., v. Schwartzman, 150 Misc.2d 1, 2, 575 N.Y.S.2d 226 (App.Term, 1st Dept.1991). As such, since a lease involving a subsidized housing program can not make attorney's fees or other charges part of the “rent”, such fees can not be the basis of a possessory judgment. Crystal World Realty Corp., supra; 4220 Broadway Assoc. v. Perez, 187 Misc.2d 602, 723 N.Y.S.2d 816 (App.Term, 1st Dept.2000)(Court vacated judgment and warrant where the landlord's applied tenant's payments toward attorneys' fees instead of rental arrears); C. Silber et al., v. Schwartzman, supra; Park Towers Tenants Corp v. Gashi, N.Y.L.J., Sept. 21, 1994, col. 1 (App.Term, 1st Dept.). Instead, a successful petitioner will have to resort to a plenary action to recover the attorney fees. Michetti, as Receiver v.Mendez and Vega, 2003 N.Y. Misc. LEXIS 571 (Kings County 2003)(the non-rent air conditioning charges were dismissed without prejudice to a plenary action); TRB Cuttermill v. Bigman, N.Y.L.J., Nov. 25, 1994, p. 32, col. 2 (App.Term, 2d Dept.). Here, the respondent has paid the outstanding rental arrears, yet petitioner seeks to obtain a possessory judgment based upon the outstanding legal fees respondent still owes petitioner. This Court declines to issue a judgment and warrant of eviction based upon these facts.
THEREFORE, it is now
ORDERED that the petitioner's request for a judgment and warrant of eviction is DENIED.
SO ORDERED.