Opinion
3020-18
01-16-2019
VERNON MANOR COOPERATIVE APARTMENTS, SECTION II, INC., Petitioner, v. Marjan BRISPORT and Troy Brisport, Respondents.
Kurman Eisenberg Corbin & Lever, LLP, 1 North Broadway, White Plains, New York 10601, Attorneys for Petitioner Novick, Edelstein, Lubell, Reisman, Wasserman & Levanthal, P.C.,733 Yonkers Avenue, Yonkers, NY 10704, Attorneys for Respondents
Kurman Eisenberg Corbin & Lever, LLP, 1 North Broadway, White Plains, New York 10601, Attorneys for Petitioner
Novick, Edelstein, Lubell, Reisman, Wasserman & Levanthal, P.C.,733 Yonkers Avenue, Yonkers, NY 10704, Attorneys for Respondents
Adrian N. Armstrong, J.
Petitioner commenced this nonpayment summary proceeding seeking to recover arrears and late fees in the amount of $1,885.00 as of November 1, 2018 from respondents. Petitioner now moves for an Order granting summary judgment pursuant to CPLR § 3212 awarding a judgment for possession and a money judgment for unpaid arrears and legal fees against respondents.
Petitioner is a cooperative corporation which owns the building located at 30 Ehrbar Avenue, Mount Vernon, New York. The premises are a cooperative apartment, Unit F-114 at the aforementioned location. Respondents are the occupants of the premises who entered into possession of the premises pursuant to an Occupancy Agreement with petitioner dated September 22, 2005. A copy of the Occupancy Agreement is annexed to the moving papers as Exhibit B.
Paragraph 4 of the Occupancy Agreement provides that respondents shall pay to petitioner in equal installments, on the first day of each month after occupancy, sums referred to as Carrying Charges, equal to the respondents' proportionate share of the sum required by the petitioner.
Paragraph 3 of the Occupancy Agreement provides that the right of occupancy of the premises is delivered subject to the terms and condition hereinafter set forth, to the Certificate of Incorporation and the By-Laws of the petitioner, in effect or hereafter amended, and any rules or regulations now or hereafter promulgated by the petitioner. Rule 21 of the House Rules states that petitioner reserves the right to impose from time to time such charges as it may deem appropriate for any violation, default or breach of the Occupancy Agreement, or for any violation by a member of petitioner's Certificate of Incorporation, By-Laws, or rules and regulations. A copy of the House Rules and Regulations is attached annexed in the moving papers as Exhibit C.
Petitioner's Board of Directors passed a resolution approving the institution of late fees when a member fails to timely pay their monthly carrying charges. The Board imposed a fee of $25.00 for payments received from the 11th to the 15th of each month. Then, it jumps to a late fee of $150.00 for payments received after the 15th of each month. A copy of the Board Resolution is annexed to the moving papers as Exhibit D.The carrying charges related to the premises are maintained in a ledger kept by petitioner. A copy of the ledger is annexed to the moving papers as Exhibit E. The ledger indicates that respondents failed to make payments on the first day of the month starting in February 2018. In addition, beginning in February 2018, respondents either made no payment of their maintenance charges or paid less than the amount due, and failed to make timely payments in direct violation of the Occupancy Agreement. As a result of respondents' missed, partial, and untimely payments, as authorized by petitioner's governing documents, including the resolution, a late fee was invoiced to respondents, from April 2018 to October 2018.
As an initial matter, the Court notes that the Second Department has held that the relationship between a cooperative and its shareholder is that of landlord and tenant ( Jimerson Housing, Co., Inc. v. Butler , 102 Misc 2d 423 (2d Dept 1979) ; see also Chatham Square Owners Corp. v. Roth , 2017 NY Misc LEXIS 583; 2017 Slip Op. 50236[U] ). The monthly payments made by the tenant-stockholder, often times referred to as "monthly carrying charges" or "maintenance," "are in reality rent in every senses of the word, the nonpayment of which subjects the tenant-stockholder to eviction by way of a summary proceeding for nonpayment of rent" ( Southridge Cooperative Section No. 3, Inc. v. Menendez , 141 Misc 2d 823 [Civ Ct. Queens Co. 1988] ). As such, the instant summary proceeding has been commenced pursuant to RPAPL § 711 and is subject to all applicable landlord-tenant law.
A review of respondents's maintenance ledger indicates the imposition of a $150.00 late charge on a $494.00 maintenance. That is essentially thirty percent of the monthly maintenance. This Court finds that the provision in the House Rules charging respondents late fees of thirty percent of the monthly maintenance is unenforceable as a penalty, since it is clearly disproportionate to any loss that petitioner may incur (see Sandra's Jewel Box v. 401 Hotel , 273 AD2d 1, [1st Dept 2000] ).
CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding, as a matter of law, "that the cause of action or defense has no merit." It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact ( Vamattam v. Thomas , 205 AD2d 615 [2nd Dept 1994] ). It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant's entitlement to judgment as a matter of law ( CPLR § 3212 [b] ). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact ( Rotuba Extruders v. Ceppos , 46 NY2d 223 [1978] ). When there is no genuine issue to be resolved at trial, the case should be summarily decided ( Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ).This Court finds that the petitioner has made a prima facie showing based on sufficient evidence its entitlement to judgment as a matter of law with respect to the arrears that are due for the monthly maintenance payments. In opposition, respondents do not dispute, and therefore admit that they failed to make all of its monthly payments of carrying charges required by the Occupancy Agreement. The total amount of maintenance arrears owed to petitioner from respondents is $835.00.
Petitioner's motion for summary judgment is granted to the extent that a final judgment for the petitioner in the amount of $1,823.00, the $835.00 maintenance arrears balance as of November 1, 2018, plus $494.00 for December 2018 and $494.00 for January 2019, which represents use and occupancy through January 31, 2019, to the extent that said use and occupancy has not already been paid. The warrant of eviction shall be stayed for ten (10) days from the date of this order to give respondents an opportunity to pay the outstanding arrears.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion:
Notice of Motion for Summary Judgment dated December 14, 2018, Affidavit in Support, Exhibits A-F; Respondents' Opposition dated January 7, 2019, Affidavit in Support, Exhibit A; Petitioner's Reply and Memorandum of Law dated January 11, 2019, Exhibit A-B.Dated: