Opinion
76346/2015
03-28-2016
St. Romero HDFC, Petitioner, v. Roberto Mercado, Respondent.
Counsel for Petitioner/Landlord Barry Mallin & Associates, P.C. 132 Nassau StreetNew York, NY 10038 (212) 285-12000 Counsel for Respondent/Tenant Alberto M. Gonzalez., of counsel to Jeanette Zelhof, Esq. MFY Legal Services, Inc. 299 Broadway, 4th Floor New York, NY 10007 (212) 417-3886
Counsel for Petitioner/Landlord
Barry Mallin & Associates, P.C. 132 Nassau StreetNew York, NY 10038
(212) 285-12000 Counsel for Respondent/Tenant
Alberto M. Gonzalez., of counsel to
Jeanette Zelhof, Esq.
MFY Legal Services, Inc.
299 Broadway, 4th Floor
New York, NY 10007
(212) 417-3886 Jack Stoller, J.
St Romero HDFC, the petitioner in this proceeding ("Petitioner"), commenced this summary proceeding against Roberto Mercado, the respondent in this proceeding ("Respondent"), seeking possession of 635 East 11th Street, Apt. 11, New York, New York ("the subject premises") on the basis of nonpayment of rent. Respondent now moves to dismiss the proceeding and for other relief.
Prior to the commencement of this proceeding, Petitioner effectuated service on Respondent of a predicate rent demand ("the demand"), which demanded payment of $2,781.00 in rent/maintenance, $65.00 in late fees, and $2,466.71 as a charge the demand identifies as "additional maintenance." Respondent argues, inter alia, that the inclusion of undifferentiated "additional maintenance" renders the demand defective. Petitioner argues, inter alia, that the $2,466.71 charge of "additional maintenance" consists of legal fees Petitioner incurred in part from a prior nonpayment proceeding between the parties ("the prior proceeding").
Both parties annex to their papers a stipulation dated May 7, 2015 settling the prior proceeding ("the stipulation"). The stipulation states an amount of arrears owed through May of 2015, memorializes tender of that arrears amount, and states, "this settles the above matter for any and all arrears for monies owed up to May 2015." The stipulation does not contain any reference to attorneys' fees.
Inclusion of attorneys' fees in a rent demand does not automatically render the demand defective. Brusco v. Miller, 167 Misc 2d 54, 55-56 (App. Term 1st Dept. 1995). However, a rent demand that includes attorneys' fees should detail the pertinent information therein. John Washington, Ltd. v. Gulbreath, 171 Misc 2d 337, 339 (App. Term 2nd Dept. 1997). The demand does not identify the amount demanded as "attorneys' fees"; rather, it demands payment of the same as "additional maintenance." However, this designation of the charge is not the biggest problem with the inclusion of attorneys' fees in the demand. The bigger problem is that the evidence of the motion, undisputed by both parties, demonstrates that Respondent does not owe these attorneys' fees.
The prohibition against the splitting of causes of action requires Petitioner to seek attorneys' fees within the action in which the fees were incurred, i.e., the prior proceeding, not a subsequent action. O'Connell v. 1205-15 First Ave. Assoc., LLC, 28 AD3d 233, 234 (1st Dept. 2006). See Also 67-25 Dartmouth St. Corp. v. Syllman, 29 AD3d 888 (2nd Dept. 2006) (a claim for attorney's fees is waived unless it is raised in the proceeding in which they are at issue). Moreover, unless a party to a settlement stipulation reserves its right to sue for attorney's fees, it waives that right. Gaisi v. Gaisi, 48 AD3d 744, 745 (2nd Dept. 2008), J.D. Realty Assocs. v. Stanley, 288 AD2d 27,28 (1st Dept. 2001), Harmir Realty Co. v. Tesa, 2003 NY Slip Op. 50015U (App. Term 1st Dept. 2003), Joralemon Assoc., LLC v. Barrett, 2011 NY Slip Op 32713(U), 8 (Sup. Ct. NY Co. 2011). Petitioner did not reserve its right to collect attorneys' fees in the stipulation, and even if it did, Petitioner was restricted to pursuit of those fees in the prior proceeding. Accordingly, Petitioner could not have collected attorneys' fees accrued in the prior proceeding in the instant proceeding.
Our purpose of the requirement to demand payment of rent pursuant to RPAPL §711(2) prior to the commencement of a nonpayment proceeding is to afford a tenant an opportunity to avoid litigation by paying the amount due. Strong L.P. v. Dakar Rest., Inc., 28 Misc 3d 1213(A) (Civ. Ct. Kings Co. 2010), 545 W. Co. v. Schachter, 16 Misc 3d 431, 432 (Civ. Ct. NY Co. 2007). Accordingly, the sum demanded needs to be, at the very least, a good faith approximation of the rent that a tenant would have to pay to prevent litigation. 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 310 (1st Dept. 2007). Failure to demand such a good faith approximation in the predicate notice render such notice defective. IG Second Generation Partners, LP v. 166 Enterprises Corp. & Urban Outfitters, Inc., N.Y.L.J. Aug. 5, 2003 at 18:1 (App. Term 1st Dept.), Dendy v. McAlpine, 27 Misc 3d 138 (A) (App. Term 2nd Dept. 2010). As $2,466.71 of the $5,312.71 payment sought in the demand was not collectible, and as that charge was not even delineated as "attorneys' fees" to apprise Respondent of Petitioner's position regarding what the "additional maintenance" was, the demand is not clear as to what amount Respondent should have paid to avoid litigation: $5,312.17 or $2,846.00? The difference between these two amounts is substantial enough that the demand fails in its statutory purpose of guiding Respondent as to the amount to be paid to avoid litigation.
Respondent did not cite a provision of the CPLR in its notice of motion. As a defective rent demand is not a recognized ground upon which to move to dismiss a proceeding, the Court deems the motion to be made pursuant to CPLR §3211(a)(l). Fontanetta v. John Doe 1, 73 AD3d 78,84 (2nd Dept. 2010) (CPLR §3211(a)(l) was enacted to cover any defenses other than those listed in CPLR §3211(a)(5) that may arise). A defense based on documentary evidence can succeed if the documents submitted resolve factual issues as a matter of law. Gephardt v. Morgan Guar. Trust Co., 191 AD2d 229 (1st Dept.), leave to appeal denied, 82 NY2d 656 (1993). As neither party disputes on the record on this motion practice as a factual matter that the demand sought payment of $2,466.71 as "additional maintenance" that consisted of attorneys' fees, the bulk of which would have accrued in the prior proceeding and was not reserved by the stipulation and thus not collectible in this proceeding, and as neither party disputes that the demand did not apprise Respondent that the "additional maintenance" in fact consisted of such attorneys' fees, the document submitted on the motion practice indeed resolve relevant factual issues as a matter of law.
Accordingly, the Court grants Respondent's motion to the extent of dismissing this proceeding, without prejudice to the recommencement if based upon a proper notice pursuant to RPAPL §711(2). The Court denies the balance of Respondent's motion as moot. This constitutes the decision and order of this. Dated: New York, New York March 28, 2016