Opinion
Index No. 49428/11
01-09-2013
SEDGWICK AVENUE REALTY ASSOCIATES, L.L.C., Petitioner, v. JOAQUIN TORRES, Respondent.
DECISION/ORDER
Background
Petitioner Sedgwick Avenue Realty Associates L.L.C. commenced this nonpayment proceeding against respondent Joaquin Torres in September 2011. The petition alleges, among other things, that petitioner is the "landlord and Owner of the premises"; that respondent's apartment is subject to the Rent Stabilization Law; that respondent is in possession of his apartment pursuant to a written lease agreement in which he promised to pay "landlord or landlord(s) [sic] predecessor" $1,152.00 per month for rent; and that as of August 29, 2011, the date of the petition, respondent owed petitioner rent in the amount of $1,327.00, consisting of $175.00 for July 2011 and $1,152.00 for August 2011.
Respondent, who was not represented by counsel, filed an answer on September 15, 2011, using the pre-printed pro se answer form provided by the Housing Court Clerk's office. His answer asserts a general denial and, in addition, alleges that he "did not receive a copy of the Notice of Petition and Petition."
Because respondent appeared to be incapable of adequately defending his rights, the Hon. Louis Villella appointed a guardian ad litem to assist him. After that guardian resigned for personal reasons, Judge Villella appointed a new guardian ad litem.
The Trial
The trial of this case began on September 28, 2012, more than a year after the first court date, and continued on October 10 and December 3, 2012.
Traverse
Although respondent alleged in his answer that he did not receive a copy of the notice of petition and petition, petitioner argued that he was not entitled to a traverse hearing because his answer was neither verified nor sworn to, and because a bare denial of receipt of pleadings, without more, is insufficient as a matter of law to overcome the prima facie showing of proper service demonstrated by petitioner's process server's affidavit of service. The Court reserved decision on petitioner's application to dispense with traverse, and the hearing proceeded.
The owner of the process serving company testified that the person who claimed to have served copies of the notice of petition and petition in this case was no longer a process server; that he had left the company in July 2012; that he had moved "35 minutes outside of Groton, Connecticut"; that although he (the owner of the process serving company) had asked him to come to court to testify, he (the process server) had failed to come to court on the first scheduled hearing date; and that since that date, the process server had stopped returning his telephone calls. Nevertheless, the witness offered in evidence the process server's log book and a certified mail receipt postmarked September 8, 2011, the mailing date set forth in the process server's affidavit of service.
Petitioner also called respondent as a witness. He testified that he came to court to file an answer on September 15, 2011 because the landlord was trying to remove him from his apartment. When petitioner's attorney showed him the petition, he claimed that he had never received one.
Respondent's guardian ad litem elected not to call respondent as a witness to respond to petitioner's proof that service of the notice of petition and petition was proper.
Petitioner's Evidence Regarding Its Claim for Rent
Although the petition made no mention of the fact that respondent formerly received a Section 8 rental subsidy for his apartment, petitioner's first witness was a representative from the New York City Department of Housing Preservation and Development ("HPD"). He testified that respondent had, in fact, received such a subsidy from HPD, but it was terminated effective July 31, 2011 because he had misrepresented his household composition and income. The witness further testified that from November 2010 until the date the subsidy was terminated, respondent's share of the rent was $175.00 per month and Section 8's share was $977.00 per month. He supported his testimony with a number of documents regarding respondent's subsidy history and termination.
An employee of petitioner's managing agent testified that petitioner was the owner of the subject building; that she had worked for that managing agent for more than three years; that respondent had moved into the subject apartment in June 2004; and that his last lease, dated February 8, 2010, was a deemed renewal lease, having been deemed renewed by petitioner on June 4, 2010 for a two-year term commencing June 1, 2010 at a rent of $1,152.00 per month. The witness further testified that she was familiar with the managing agent's rent record keeping practices; that respondent owed $175.00 in rent at the time his Section 8 subsidy was terminated; that in August 2011, respondent paid no rent; that in September 2011, petitioner received three money orders totaling $1,152.00; and that petitioner received no rent since then. She supported her testimony with a number of documents, including a copy of the last deed, dated May 13, 1985 (which showed the owner as Sedgwick Avenue Associates); a printout from the New York State Department of State website (showing that Sedgwick Avenue Realty Associates LLC made its initial filing with the Department of State on December 19, 1995; that the first name listed under its "Name History" was Sedgwick Avenue Associates, with a filing date of December 19, 1995; that the second name listed under its "Name History" was Sedgwick Avenue Realty Associates, L.P., also with a filing date of December 19, 1995; and that the third name listed was Sedgwick Avenue Realty Associates LLC); respondent's first lease, dated June 1, 2004 (which was made between him and Sedgwick Avenue Associates); the deemed renewal lease from 2010; and respondent's "Tenant Profile," showing rents charged and paid from July 1999through October 9, 2012.
The Court notes that the first page of the lease states that it is "between Sedgwick Ave Associates as Landlord . . . and Joaquin Torres as Tenant." However, "Sedgwick Ave Realty Assoc. LLC" is handwritten above a line entitled "Landlord" on the signature page.
Although the Tenant Profile goes back to July 1999, it includes a comment that respondent moved into his apartment in 2004. Neither the Profile itself nor petitioner's witness explained why the records contain rent information for several years prior to June 2004.
Finally, petitioner called respondent as its own witness. Shown a letter dated August 4, 2011, respondent identified his signature but did not recall sending it to the landlord. That letter, which was admitted in evidence, is written in English, is addressed to petitioner, and reads as follows:
Throughout the trial, respondent had the assistance of a Spanish interpreter.
Please be advised that I, Joaquin Torres, resident of 2719 Sedgwick Avenue, Apt. 3G, Bronx, NY 10468, am writing you this letter in order to request that you please make a reduction in my Monthly Rent Payment, due to the fact that I am a disable [sic]person and it is difficult for me to pay the amount of US$1,152.00, which you will charge me starting August 2011.
Enclosed [with] this letter I am sending you a copy of a letter from my Doctor in order that you verify my disability.
Waiting for response,
Yours truly,
Joaquin Torres
Respondent's Evidence Regarding Petitioner's Claim for Rent
Respondent testified that he has lived in his apartment for 10 years; that his income consists of SSI "and what the government sends me"; that he remembered he borrowed three "promissory notes" totaling 1,200 "pesos" to pay the rent he owed; that he paid the 1,200 pesos because the landlord told him that he had to pay "1,000 pesos and change, so I got afraid"; and that after his Section 8 subsidy was terminated, he sent someone to tell the landlord that he was unable to pay the rent.
On cross-examination, respondent identified his signature on a second copy of the 2010 deemed renewal lease, which was admitted in evidence. Regarding the August 2011 letter, he testified that he had sent someone to ask his doctor to prepare a letter for his landlord saying that he was not able to pay the rent in full and asking the landlord to lower the rent if he could; that the doctor prepared the letter; that although he did not read the letter himself and no one read it to him, he signed it; that he spoke to his doctor about this in Spanish; that his doctor said he would send the letter; and that the doctor did not give him a copy. He further testified that he sent the landlord two money orders for "what I owed as rent"; that at the time he sent them, he knew how much they were for, but now does not remember; that he went to his bank himself and bought the money orders in person; and that he bought them in the amount he did "because I owed rent."
Discussion
In her closing argument, respondent's guardian ad litem raised three defenses. First, the Court lacked personal jurisdiction over respondent; second, petitioner lacked standing to maintain this proceeding; and third, respondent never agreed to pay petitioner the rent of $1,152.00 per month demanded in the petition.
Personal Jurisdiction
As noted above, although the Court conducted a traverse hearing, it reserved decision on petitioner's claim that no hearing was required because respondent's bare denial of receipt of the pleadings, without more, was insufficient as a matter of law to overcome the prima facie showing of proper service demonstrated by petitioner's process server's affidavit of service.
"The affidavit of [a] process server constitutes prima facie evidence of proper service and the mere conclusory denial of receipt of service is insufficient to rebut the presumption that service was proper," (Grinshpun v. Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], citing Matter of de Sanchez, 57 AD3d 452, 454 [1st Dept 2008]; NYCTL 1998-1 Trust & Bank of N.Y. v. Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]), at least where the affidavit contains the requisite factual and descriptive information required by Section 306 of the CPLR. (See Matter of Shaune TT, 251 AD2d 758 [3d Dept 1998]). Thus, if an affidavit of service provides the information required by the CPLR, no hearing is required unless the party challenging service alleges specific facts to rebut the statements made in that affidavit. (See City of New York v. Miller, 72 AD3d 726 [2d Dept 2010]).
Here, the Court finds that the process server's affidavit of service provided the information required by the CPLR. Consequently, respondent's bare denial of receipt of the notice of petition and petition was insufficient to merit a traverse hearing. Accordingly, respondent's personal jurisdiction defense is dismissed.
Standing
Only those persons described in Section 721 of the RPAPL have standing to maintain a special proceeding to recover possession of real property. They include a "landlord or lessor." (RPAPL § 721[1]). While many petitioners attempt to establish standing by demonstrating that they own the property in which an apartment is located, proof of fee ownership is not required. (See Ferber v. Salon Moderne, 174 Misc 2d 945 [App Term, 1st Dept 1997]). Indeed, proof of ownership is not a necessary element of proof of a petitioner's prima facie case. (See e.g. Mason v. Foxcroft Vil., 67 AD2d 1012 [3d Dept 1979]; K.R.F. Management Corp. v. Bartle, NYLJ, Oct. 19, 1987 at 9, col 2 [App Term, 1st Dept]; Z. Management Co. v. J.E.B.M. Launders, Inc., NYLJ, Oct. 29, 1980 at 6, col 1 [App Term, 1st Dept], affd 83 AD2d 998 [1st Dept 1981]).
Here, the petition alleges that petitioner "is the landlord and Owner of the premises." At trial, it sought to prove ownership by submitting the last deed, from 1985, which, it acknowledges, is in the name of Sedgwick Avenue Associates. It now argues that Sedgwick Avenue Realty Associates, LLC, which was created in December 1995, is merely a change of name from Sedgwick Avenue Associates and, as a result, it owns the subject building.
The Court finds that petitioner failed to establish that it owns the building. Although the printout from the Department of State website lists petitioner's name as the last entity in a "Name History" that begins with Sedgwick Avenue Associates, it does not state that the entities are the same, and petitioner, which easily could have done so, neither submitted other documents to support its claim nor explained how Sedgwick Avenue Associates, which, according to the last deed, is a limited partnership, and petitioner, a limited liability company, can be identical companies. Moreover, other documents offered in evidence by petitioner show that Sedgwick Avenue Associates is a separate entity, which continued in existence after December 1995: Respondent's vacancy lease from 2004 is with "Sedgwick Ave Associates" and, according to HPD's Section 8 records, "Sedgwick Ave Assoc." was the owner of respondent's building and a party to the Housing Assistance Payments contracts for respondent's subsidy from 2005 until it was terminated in 2011.
As stated at n 1, supra, while the first page of the lease states that it is "between Sedgwick Ave Associates as Landlord . . . and Joaquin Torres as Tenant," the name "Sedgwick Ave Realty Assoc. LLC" is handwritten above a line entitled "Landlord" on the signature page.
Although the Court finds that petitioner failed to prove it owns the subject building, it would still have standing to maintain this proceeding if it were respondent's lessor and either had the authority to lease the apartment to him at the time that it did so (see K.R.F. Management Corp. v. Bartle, supra, NYLJ, Oct. 19, 1987 at 9, col 2) or the owner ratified its authority to do so thereafter. (See Ferber v. Salon Moderne, supra, 174 Misc 2d 945).
Here, respondent signed his 2010 renewal lease with "Sedgwick Ave. Rlty Assoc." and, in August 2011, wrote a letter to "Sedgwick Avenue Realty Assoc LLC," the petitioner, asking if it would reduce his rent. Given that respondent recognized petitioner as his lessor; that there appears to be an ongoing relationship between the owner of the building, Sedgwick Avenue Associates, and petitioner; and petitioner is listed with HPD as the owner of the building for Housing Maintenance Code enforcement purposes, the Court finds that it is respondent's lessor and, therefore, has standing to maintain this proceeding.
What Rent May Petitioner Seek in this Case?
"It is elementary that a nonpayment proceeding must be predicated upon an agreement by the tenant to pay the rents demanded." (Licht v. Moses, 11 Misc 3d 76, 78 [App Term, 2d Dept, 2d and 11th Jud Dists 2006]). Because a tenant with a Section 8 subsidy only agrees to pay his share of the rent, "[a]bsent a showing by [the] landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as 'rent' even after termination of the subsidy." (Prospect Place HDFC v. Gaildon, 6 Misc 3d 135[A], 2005 NY Slip Op 50232[U] [App Term, 1st Dept 2005], quoting Rainbow Assoc. v. Culkin, 2003 NY Slip Op 50771[U][App Term, 2d Dept, 2d and 11th Jud Dists 2003]). Consequently, unless petitioner proves that respondent entered into a new agreement to pay the full rent for the apartment, it may, in this case, only seek his prior share of the rent.
Although respondent has not signed a new lease since his Section 8 subsidy was terminated, petitioner argues that he has impliedly agreed to pay the full rent for his apartment by continuing to occupy it after his subsidy was terminated; by recognizing, in his August 2011 letter, that his rent was $1,152.00 per month; and by paying that amount for one month in September 2011.
For a rental agreement to be implied in fact, there must be proof of a meeting of the minds. (See I.G. Second Generation Partners, L.P. v. Duane Reade, 17 AD3d 206, 208 [1st Dept 2005]). "The assent of the person to be charged is necessary and unless he has conducted himself in such a manner that his assent may fairly be inferred he has not contracted." (Miller v. Schloss, 218 NY 400, 407 [1916]). Thus, in a commercial holdover proceeding, an implied year-to-year tenancy was found where there was an unexecuted 10-year lease, bi-monthly rent payments, an annual sum fixed for certain services, the premises was occupied for six years, and the tenant made extensive improvements. (See 28 Mott St. Co. v. Summit Import Corp., 34 AD2d 144 [1st Dept 1970], affd 28 NY2d 508 [1971]). While an implied rental agreement might be inferred where, for example, a commercial tenant's expired lease provided for a two-year renewal term and the tenant paid the increased figure specified for the renewal term for 10 months (see United Mut. Life Ins. Co. v. ICBC Corp., 64 AD2d 506 [1st Dept 1978]), where a Rent Stabilized tenant fails to execute a renewal lease, his agreement to renew the expiring lease may not be inferred solely from the fact that he continued to occupy his apartment for five months after the lease expired and paid the increased rent for those months. (See Samson Mgt., LLC v. Hubert, 92 AD3d 932 [2d Dept 2012]). Indeed, because a landlord's prior acceptance of a Section 8 subsidy constitutes a term and condition of a Rent Stabilized tenant's lease (see Rent Stabilization Code [9 NYCRR] § 2522.5[g][1]) so that any subsequent renewal lease is required to continue with that term and condition (see Rosario v. Diagonal Realty, LLC, 8 NY3d 755 [2007]), if the tenant's subsidy is terminated, "a renewal lease purporting to obligate [him] to pay the full lease rent cannot be considered such a 'new agreement' sufficient to change or modify the terms and conditions of [his] expired . . . lease." (Pinnacle Bronx W., LLC v. Jennings, 29 Misc 3d 61, 62 [App Term, 1st Dept 1010]). Consequently, in a nonpayment proceeding brought against such tenant, the landlord may seek only his former share of the rent. (See id.).
Here, petitioner failed to meet its burden of proving a meeting of the minds in which respondent agreed to pay the entire rent for his apartment. At the time this proceeding was commenced, respondent's 2010 renewal lease was still in effect, and since it expired on May 31, 2012 he has not signed another renewal. His payment of only one month's rent at the full amount, in September 2011, does not evidence an intent to pay that amount for the balance of his lease term or thereafter. Nor did his August 2011 letter evidence an intent to be so bound. Indeed, it merely acknowledged petitioner's intent to charge him the full amount and expressed a desire for petitioner to charge him less because he is disabled and it would be difficult for him to pay the entire rent. There being no new agreement by respondent to pay the full lease amount, petitioner is barred, in this case, from seeking any arrears in excess of $175.00 per month, respondent's last share of the rent.
Calculation of Respondent's Rent Arrears
According to petitioner's rent records, as of July 31, 2011, when respondent's Section 8 subsidy was terminated, he owed $175.00. From August 2011 through December 2012, he owed an additional $2,975.00 (at $175.00 per month) and paid only $1,152.00, leaving a balance of $1,823.00 due for that period. Thus, for purposes of this case, respondent owed $1,998.00 in rent through December 31, 2012.
Those arrears resulted from respondent underpaying his rent by $65.00 per month in November and December 2010, and by $45.00 in January 2011.
--------
Relief
Accordingly, the Court grants the petition to the extent of directing the Clerk of the Court to enter a final judgment of possession and money judgment in the amount of $1,998.00 in favor of petitioner and against respondent. Issuance of the warrant of eviction shall be stayed for five days.
This constitutes the decision and order of the Court.
Petitioner is requested to pick up its exhibits from Part T by February 8, 2013. Dated: Bronx, New York
January 9, 2013
______________
Hon. Andrew Lehrer
Judge, Housing Court