Opinion
L & T 066773/2018
01-29-2019
TIME EQUITIES ASSOCIATES LLC, Petitioner/Landlord, v. William MCKENITH, Respondent/Tenant, "John Doe" and/or "Jane Doe", Respondent(s)-Occupant(s).
Attorney for Petitioner: Thomas S. Fleishall & Assoc. P.C., Michael Stevens, Esq., 561 7th Ave, 19 FL., NY NY 10018 Attorney for Respondent: Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, Serge Joseph, Esq., 15 Maiden Lane, 17th Floor, New York, NY 10013
Attorney for Petitioner: Thomas S. Fleishall & Assoc. P.C., Michael Stevens, Esq., 561 7th Ave, 19 FL., NY NY 10018
Attorney for Respondent: Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, Serge Joseph, Esq., 15 Maiden Lane, 17th Floor, New York, NY 10013
Heela D. Capell, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of the petitioner's motion for summary judgment, and of respondent's cross-motion to strike portions of petitioner's motion and for summary judgment.
Papers/Numbered
Notice of Motion & Affidavits Annexed 1
Notice of Cross-Motion and Affidavits Annexed 2
Answering Affidavits 3
Replying Affidavits 4
Exhibits
Memorandum of law
After oral argument and upon the foregoing cited papers, petitioner's motion and respondent's cross-motion are consolidated for disposition purposes and decided as follows:
In this holdover proceeding, Time Equities Associates LLC ("Petitioner") seeks possession of the rent-stabilized apartment located at 66 West 84th Street, Apartment 2G, New York, New York 10024 ("Premises") from William McKenith ("Respondent") pursuant to 9 NYCRR § 2524.3(a) and/or § 2524.3(b), on the grounds that Respondent substantially breached his lease and/or created a nuisance condition by continuously failing to timely pay his rent to Petitioner. The proceeding first appeared on the court's calendar on July 31, 2018. Respondent, by his attorneys, Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, filed an answer to the proceeding dated August 22, 2018 alleging nine affirmative defenses and a counterclaim for attorneys' fees. After several adjournments, Petitioner filed the instant motion and Respondent filed this cross-motion.
Petitioner's Motion
In its motion Petitioner seeks summary judgment based upon Respondent's breach of a substantial obligation of his tenancy to timely pay rent to Petitioner. In support of the motion, Petitioner maintains that it was forced to commence seven nonpayment proceedings against Respondent within a seven year period, in order to collect rent payments. Specifically, Petitioner commenced nonpayment proceedings against Respondent under L & T Index Numbers 92559/10, 58435/11, 57748/14, 51802/15, 54675/16, 74387/16, and 83940/17 (collectively referred to as "Nonpayment Proceedings"). Petitioner also asserts that it served several rent demands on Respondent during this seven year period.
Respondent's Cross-Motion
Respondent's cross-motion seeks, inter alia, summary judgment in his favor and to dismiss the proceeding. Respondent mainly argues against Petitioner's case based upon the nuisance cause of action. Respondent alleges that Respondent's "occasional lateness" which resulted in the two nonpayment proceedings in 2016, was not wilful or malicious but rather due to illness and loss of employment. Respondent also posits that four of the seven proceedings are barred from consideration by the three year statute of limitations for nuisance. Respondent generally maintains that Petitioner commenced five of the seven Nonpayment Proceedings in bad faith and as a pretense for a chronic nonpayment proceeding. In support, Respondent contends that five of the seven cases "were settled on or about the first court date with respondent tendering in Court or soon thereafter payment of the rent in arrears ..." and that in those proceedings, only two months of rent were outstanding, which rent Petitioner improperly refused to accept from Respondent. Lastly, Respondent seeks to have portions of Petitioner's motion, which refer to a chronic nonpayment holdover proceeding commenced against the Respondent in 2005, stricken pursuant to CPLR § 3024(b) as they are "scandalous and prejudicial."
The Nonpayment Proceedings
L & T Index No. 92559/10
In the 2010 nonpayment proceeding, Time Equities Associates v. William McKenith , L & T Index No. 92559/10 ("2010 Nonpayment"), Petitioner sued Respondent for $ 1,270.98 at the monthly rate of $ 638.99. Respondent filed an answer alleging that a portion of the rent had been paid, a general denial and improper service. On December 22, 2010, the first court appearance, the parties entered into a stipulation of settlement whereby Respondent acknowledged owing two months of rent and paid the outstanding rent in court.
L & T Index No. 58435/11
In the 2011 nonpayment proceeding, Time Equities Associates v. William McKenith , L & T Index No. 58435/11 ("2011 Nonpayment"), Petitioner sued Respondent for $ 1,284.98 at the monthly rate of $ 638.99. Respondent filed an answer alleging that the rent had been paid and a general denial. On March 18, 2011, the first court appearance, the parties entered into a stipulation of settlement whereby Respondent acknowledged owing one month of rent and agreed to pay the outstanding month's rent within a week.
L & T Index No. 57748/14
In the 2014 nonpayment proceeding, Time Equities Associates v. William McKenith , L & T Index No. 57748/14 ("2014 Nonpayment"), Petitioner sued Respondent for $ 2,740.61 at the monthly rate of $ 685.32. While Petitioner's motion and Respondent's cross-motion both contain the notice of petition and petition for the 2014 Nonpayment, neither contain an answer nor a stipulation of settlement filed in the proceeding.
L & T Index No. 51802/15
In the 2015 nonpayment proceeding, Time Equities Associates v. William McKenith , L & T Index No. 51802/15 ("2015 Nonpayment"), Petitioner sued Respondent for $ 2,213.29 at the monthly rate of $ 738.43. Respondent filed an answer alleging that a portion of the rent had been paid and a general denial. On January 30, 2015, the first court appearance, the parties entered into a stipulation of settlement whereby Respondent acknowledged owing one month of rent and was given a month to pay the amount plus February rent. In the event of a breach the landlord could restore the proceeding to the calendar for a judgment and warrant. The stipulation of settlement provided that Petitioner would repair as required by law the bathroom sink and tiles in the Premises on certain access dates.
On June 10, 2015, Petitioner's motion to restore the proceeding was granted on default, as Respondent failed to appear, and Petitioner was awarded a judgment in the amount of $ 735.87. On June 14, 2015, the parties entered into a stipulation of settlement wherein Respondent consented a final judgment in the amount of $ 631.64 with the issuance of the warrant forthwith. Execution of the warrant was stayed through July 8, 2015 for Respondent to pay $ 631.64 plus July 2015 rent.
L & T Index No. 54675/16
In the first nonpayment proceeding filed in 2016, Time Equities Associates v. William McKenith , L & T Index No. 54675/16 ("2016 Nonpayment # 1"), Petitioner sued Respondent for $ 3,355.58 at the monthly rate of $ 738.43. Respondent filed an answer alleging that the rent and/or a portion of the rent had been paid and a general denial. On March 7, 2016, the first court appearance, the parties entered into a stipulation of settlement whereby Respondent acknowledged owing $ 3,350.63 (after payment in court of $ 743.38) and consented to a final judgment in the amount of $ 3,350.63 with execution of the warrant stayed through April 29, 2016 for payment. The stipulation provided that Petitioner would inspect and repair as required by law the kitchen floor, bedroom ceiling and leaks in the window on certain access dates.
L & T Index No. 74387/16
In the second nonpayment proceeding filed in 2016, Time Equities Associates v. William McKenith , L & T Index No. 74387/16 ("2016 Nonpayment # 2"), Petitioner sued Respondent for $ 2,372.05 at the monthly rate of $ 753.20. Respondent filed an answer alleging that the rent and/or a portion of the rent had been paid and that repairs were needed. On September 21, 2016, the first court appearance, the parties entered into a stipulation of settlement whereby Respondent consented to a final judgment in the amount of $ 753.70, and execution of the warrant was stayed through October 25, 2016 for payment.
L & T Index No. 83940/17
In the 2017 nonpayment proceeding, Time Equities Associates v. William McKenith , L & T Index No. 83940/17 ("2017 Nonpayment"), Petitioner sued Respondent for $ 9,008.76 at the monthly rate of $ 753.20. Respondent filed an answer alleging that the rent and/or a portion of the rent had been paid. On January 18, 2018, the first court appearance, the parties entered into a stipulation of settlement whereby the proceeding was discontinued as Respondent had paid all rent through January 2018.
DISCUSSION
Petitioner and Respondent both move for summary judgment, the standard for which is articulated in CPLR § 3212(b). CPLR § 3212(b) provides that "the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The function of summary judgment is issue finding, not issue determination. ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395, 404 [1957] ). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case. ( Winegrad v. New York University Medical Center , 64 NY2d 851, 853 [1985] ). Moreover, "when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims promptly adjudicated." ( Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ). The court must therefore examine whether either party is entitled to such relief in this chronic nonpayment holdover proceeding.
Petitioner maintains that Respondent has breached a substantial obligation of his tenancy and that Respondent has failed to rebut the claim with any facts. A chronic nonpayment proceeding based upon the breach of a substantial obligation of the tenancy must be predicated upon the commencement of numerous nonpayment proceedings to collect late rental payments. ( Adam's Tower Ltd. Pshp. v. Richter , 186 Misc 2d 620, 621 [1st Dept 2000] ; see Sharp v. Norwood, 89 NY2d 1068 [1997] ; 9 NYCRR § 2524.3 [a] ). However, "the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent." ( Greene v. Stone, 160 AD2d 367, 368 [1st Dept 1990] ). Rather, in a chronic non-payment holdover proceeding "there is no ‘magic number’ of prior proceedings required, as each case is sui generis ." ( Sharp v. Norwood, 223 AD2d 6, 9 [1st Dept 1996] aff'd 89 NY2d 1068 [1997] ). The commencement of frequent non-payment proceedings in a short amount of time, due to a tenant's "long term, unjustified and persistent failure to pay rent as it [becomes] due" meets the requirements in a chronic non-payment petition. ( Adam's Tower Ltd. Pshp., 186 Misc 2d 620 ).
Petitioner has established that it commenced seven non-payment proceedings against the Respondent in seven years due to Respondent's persistent and continuous failure to timely pay his rent. In each of the Nonpayment Proceedings, at least two months or more of rent were owed at the time the petitions were filed with the court. In five of the seven Nonpayment Proceedings, Respondent entered into a stipulation of settlement whereby he acknowledged owing outstanding rent to the Petitioner, and in four of the proceedings, Respondent was given additional time to pay. Petitioner also attaches several additional rent demands Petitioner allegedly served on Respondent during that period, which reflect that Respondent was repeatedly late in paying his rent. While not dispositive of chronic nonpayment, these rent demands bolster Petitioner's argument that Respondent continuously failed to timely pay his rent, breaching a material obligation of his lease.
Although a "magic number" of prior nonpayment proceedings does not exist, this court takes guidance from other decisional authority in this area to determine whether the landlord's commencement of seven nonpayment proceedings in seven years is sufficient to support this proceeding. (See Sharp v. Norwood, 223 AD2d 6 at 9 ). For example, in the oft cited, Adam's Tower Ltd. Pshp, supra, the landlord commenced nine nonpayment proceedings against the tenant in three years, all in which judgments were entered against the tenant and where no warranty of habitability defense was asserted. In (Pamela Equities Corp. v. Coverton, 7/18/90 N.Y.L.J. 18:1 [App Term 1st Dept] ), the landlord commenced seven nonpayment proceedings against the tenant in two years. In ( Riverton Assoc. v. Garland , 13 Misc 3d 133[A] [App Term 1st Dept 2006] ), the landlord commenced nine nonpayment proceedings against the tenant over a ten year period, which were resolved in the landlord's favor. (See also Definitions Personal Fitness, Inc. v. 133 E. 58th St. LLC. , 107 AD3d 617 [1st Dept 2013] (ten nonpayment proceedings against the tenant in seven years); ( Tenth St. Holdings, LLC v. McKowen , 50 Misc 3d 141[A] [App Term 1st Dept 2016] ) (summary judgment properly granted to landlord who successfully commenced five nonpayment proceedings against the tenant in three and half years).
An important consideration for the court is whether the tenant had advanced bona fide claims for repairs in the nonpayment proceedings which precipitated the chronic nonpayment holdover proceeding. (See e.g. Definitions Personal Fitness, Inc. v. 133 E. 58th St. LLC. , 107 AD3d 617 ). In (Bennett v. Mentis, 9/13/00 N.Y.L.J. 22:1 [App Term 1st Dept] ) the court found that in at least two of five nonpayment proceedings commenced by the landlord against the tenant in five years, the tenant had bona fide claims for repairs that caused him to withhold the rent and the proceeding was dismissed. (See also 25th Realty Assocs. v. Griggs, 150 AD2d 155 [1st Dept 1989] and East End Residences v. Dolen, 4/14/97 N.Y.L.J. 27:3 [App Term 1st Dept] ). In ( Chama Holding Corp. v. Taylor , 37 Misc 3d 70, 71[App Term 1st Dept 2012] ) the tenant's proper interposition of the defense that rent was withheld in two of four nonpayment proceedings because of bona fide warranty of habitability claims precluded an eviction in the holdover. (See also Hudson St. Equities v. Circhi , 9 Misc 3d 138[A] [App Term, 1st Dept 2005] ).
In his answer to this proceeding, Respondent asserts the defense that he was compelled to withhold rent to effectuate repairs, however, his cross-motion does not address this purported defense. Notably, Respondent does not state in his affidavit that he purposely withheld rent from Petitioner nor that any conditions in the Premises constituted rent impairing conditions. Moreover, of the six answers Respondent interposed in the Nonpayment Proceedings, Respondent only raised the issue of repairs in the one of the answers, to wit 2016 Nonpayment Proceeding # 2.
Respondent also maintains that the court should discard five of the seven Nonpayment Proceedings because they "were settled on or about the first court date with respondent tendering in Court or soon thereafter payment of the rent in arrears ..." and that in those proceedings, only two months of rent were outstanding, which rent Petitioner improperly refused to accept from Respondent. However, the Appellate Courts in this Department do not consider the date of settlement nor the amount of rent sued for as defenses to chronic nonpayment proceedings. Rather, the courts consider whether the proceedings were resolved in favor of the landlord i.e whether the landlord was forced to commence proceedings against the Respondent to collect the rent. Here, Respondent concedes that Petitioner commenced 2016 Nonpayment # 1 and 2016 Nonpayment # 2 because Respondent failed to timely pay his rent, and those nonpayment proceedings resulted in judgment stipulations in favor of the Petitioner. Moreover, while they did not result in judgments for the Petitioner, the 2010 Nonpayment, 2011 Nonpayment and 2015 Nonpayment were settled pursuant to stipulations of settlement wherein Respondent acknowledged owing rent to the Petitioner and was given additional time to pay the rent.
The court also recognizes that while the remaining two nonpayment proceedings (i.e. 2014 Nonpayment and 2017 Nonpayment) bear less weight because Petitioner did not take any further action in court in the 2014 Nonpayment, and the 2017 Nonpayment was commenced after a holdover proceeding was dismissed, Respondent failed to show that the proceedings were meritless. Indeed, in the 2017 Nonpayment, Respondent only satisfied the arrears due once the case appeared in court. Furthermore, none of the answers in the 2010 Nonpayment, 2011 Nonpayment, 2015 Nonpayment, 2016 Nonpayment # 1, 2016 Nonpayment # 2 and 2017 Nonpayment raise the defense that Petitioner refused to accept the rent from Respondent or from someone on Respondent's behalf, which is an available defense on the form answer that he filed with the court.
Moreover, Respondent only generally alleges that he had offered to pay the rent to Petitioner (either in person or by mail) and that Petitioner refused to accept his payments. Respondent does not specify dates on which he tried pay, the individual who rejected the payments or the amount tendered. Respondent further alleges that he attached two letters to the cross-motion, dated December 8, 2016 and June 8, 2018, which evidence that Petitioner returned his rent. However, these letters are not attached to the cross-motion and appear to have been sent prior to the commencement this proceeding as well as an earlier chronic nonpayment holdover proceeding, Time Equities Associates v. William McKenith , L & T 084305/2016 ("2016 Holdover"). As it appears that Petitioner was in the process of commencing holdover proceedings against the Respondent, the Petitioner would have been legally obligated to return the rent to Respondent prior to the proceedings. (See generally Associated Realties v. Brown , 146 Misc 2d 1069 [Civil Court NY County 1990] ).
An opponent to a motion for summary judgment bears the burden of producing evidence in admissible form to raise the existence of a disputed material issue of fact to warrant a trial. ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000] ). The law is well-settled that a party, in opposing a motion for summary judgment, must assemble and "lay bare" affirmative proof to establish meritorious defenses that require a trial. ( Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l., 78 AD3d 137, 142 [1st Dept 2010] ; Thompson v. Olsen , 177 AD2d 449 [1991] ). Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat summary judgment. ( Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533 (1991] ). Accordingly, Respondent's unsubstantiated claims fail to establish that Petitioner purposefully refused his rent payments or that Respondent withheld rent payments from Petitioner because of repairs.
Petitioner has therefore set forth a prima facie showing that it is entitled to summary judgment on the basis that Respondent has substantially breached a substantial obligation of his tenancy under 9 NYCRR § 2524.3(a), which Respondent has failed to rebut. Accordingly, Petitioner's motion for summary judgment is granted and Petitioner is awarded a final judgment of possession against the Respondent. Respondent's cross-motion for summary judgment with respect to the cause of action based upon his breach of a substantial obligation of his tenancy is denied.
Nuisance Cause of Action
Respondent's cross-motion to dismiss the cause of action based upon nuisance is granted. "A respondent's chronic nonpayment of rent on its own is insufficient to establish an actionable nuisance. The petitioner must also prove ‘aggravating circumstances’ to support an eviction based on such ground." ( Wonforo Assocs. v. Maloof , 2002 NY Slip Op 50316[U], [Civil Court NY County, 2012] ; Sharp v. Norwood , supra; see also Century Apts. Assocs. v. Postel , 1999 NY App. Div. LEXIS 14015 [App Term 1st Dept] ). Here, Petitioner has failed to establish that the rent defaults by Respondent caused aggravating circumstances or "interfere[d] with the use or enjoyment" of its property as required to support a nuisance cause of action. (See e.g., Copart Indus. v. Consolidated Edison Co., 41 NY2d 564, 568 [1977] ). Notably, Petitioner does not seek summary judgment on the grounds that Respondent's chronic failure to timely tender his rent created a nuisance. Accordingly, the cause of action based on nuisance is dismissed.
Prejudgment Stay
In ( 326-330 E. 35th St. Assoc. v. Sofizade , 191 Misc 2d 329, 332 [App Term 2002] ) the Appellate Term held that where a landlord is entitled to a judgment against the tenant based upon chronic rent delinquency, the court should assess whether to issue a pre-judgment stay. When determining whether to issue a stay, courts may consider the "length of the tenancy, the tenant's payment history prior to the rent defaults complained of, the circumstances and severity of the rent defaults, and the tenant's present financial status or other relevant indicia of creditworthiness." Id. (See also 1720 Unico, Inc. v. Fournier , 40 Misc 3d 138[A], 2013 NY Slip Op 51397[U] [App Term 2013] ).
In this thirty-one year tenancy, it is undisputed that Petitioner commenced thirty-three non-payment proceedings against the Respondent in order to collect rent payments. As noted above, Petitioner commenced seven nonpayment proceedings against the Respondent in the past seven years, as Respondent was repeatedly late paying his rent. Petitioner also served Respondent with additional rent demands during this time. While this court is particularly sensitive to the length of Respondent's tenancy, it is clear that Respondent cannot timely pay rent, which has caused Petitioner to repeatedly commence proceedings against him. As stated in ( Adam's Tower Ltd. Pshp. v. Richter , 186 Misc 2d 620, 622 ), while remaining sympathetic to the tenant's situation, "a landlord in a regulated tenancy cannot be expected to meet its obligations when rent is tendered only as a consequence of eviction proceedings." Here, the Respondent's repeated late payments and the protracted history of litigation have posed an undue burden on the Petitioner during this lengthy rent regulated tenancy.
Moreover, in his affidavit Respondent does not set forth any factors that would enable him to tender his rent timely going forward. (See Sofizade , 191 Misc 2d 329 ; Tenth St. Holdings, LLC v. McKowen , 50 Misc 3d 141[A] and Riverton Assoc. v. Garland , 13 Misc 3d 133[A] ). Respondent's affidavit does not provide proof that his current employment ("a line cook") or desired future employment ("a higher paying Chef position with a stable and well established restaurant") will permit him to timely pay the monthly rent on an ongoing basis. Respondent also fails to assert that the income from his current job is sufficient to timely pay future rent. After careful consideration, the court finds that a stay of the judgment is not warranted in this proceeding.
Strike Portions of Petitioner's Motion
Respondent also moves to strike any reference in the motion to a 2005 chronic nonpayment holdover proceeding pursuant to CPLR § 3024(b) because such references are "scandalous and prejudicial." This branch of Respondent's cross-motion is based upon a stipulation by the parties which settled a previous chronic nonpayment holdover proceeding, Time Equities Associates v. William McKenith , L & T Index No. 105531/05 ("2005 Holdover"). In the stipulation the parties agreed that "[u]pon compliance with all the foregoing provisions, petitioner agrees that none of the allegations contained in the Termination Notice and/or Petition shall serve as a basis for any subsequent or further action, proceeding or Termination Notice of another matter." Indeed, the 2017 Holdover was dismissed by the Honorable Timmie Elsner in a Decision and Order dated December 7, 2017 because Petitioner had relied on the allegations from the 2005 Holdover in the termination notice. Here, however, Petitioner does not utilize any of the Index Numbers that supported the 2005 Holdover in the termination notice. Indeed, the termination notice specifically provides that this proceeding does not rely on any of the nonpayment cases from the 2005 Holdover. Rather, Petitioner refers to the prior proceeding in its motion papers to emphasize that Respondent has a history of chronically paying his rent late which has caused Petitioner to expend thousands of dollars in legal fees to collect the rent. This reference to the parties' history is not barred by the terms of the stipulation as it does not form a basis for this proceeding. Accordingly, this branch of Respondent's cross-motion is denied.
For the reasons stated above Petitioner's motion is granted and Respondent's cross-motion is denied in part and granted in part, to the extent that Petitioner's cause of action based upon nuisance is dismissed without prejudice. Petitioner is granted a final judgment of possession against Respondent on its cause of action based upon breach of a substantial obligation of the tenancy. The warrant of eviction may issue forthwith. However, execution of the warrant is stayed through March 31, 2019 as follows: Respondent shall tender all outstanding arrears through December 2018, in the amount of $ 4,390.59, plus January 2019 and February 2019 use and occupancy by February 10, 2019. Execution of the warrant is further stayed through March 5, 2019 for payment of March 2019 use and occupancy. Upon full and timely payments, execution of the warrant shall be stayed through March 31, 2019 so that
Respondent may vacate the Premises with dignity.
This constitutes the decision and order of this court.