Opinion
0282–18
04-04-2018
WESTCHESTER PLAZA HOLDINGS, LLC, Petitioner–Landlord, v. Sondra FURLOW, Respondent–Tenant.
Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, NY 11040, Attorneys for Petitioner Zuri Regisford, Esq., Legal Service for the Hudson Valley, 100 E. First Street, Mt. Vernon, New York 10550, Attorneys for Respondent
Gutman, Mintz, Baker & Sonnenfeldt, LLP, 813 Jericho Turnpike, New Hyde Park, NY 11040, Attorneys for Petitioner
Zuri Regisford, Esq., Legal Service for the Hudson Valley, 100 E. First Street, Mt. Vernon, New York 10550, Attorneys for Respondent
Adrian N. Armstrong, J.
This summary holdover proceeding was commenced by Westchester Plaza Holdings, LLC (Petitioner) and seeks to recover possession of Apartment 4G, at 40 East Sidney Avenue, Mount Vernon, New York (Subject Premises) based on the allegation that, Sondra Furlow (Respondent), the tenant of record, has breached a substantial obligation of her tenancy in that she is chronically in default of the payment of rent thereby requiring petitioner to commence numerous nonpayment summary proceedings in a short period of time.
The respondent occupies the subject premises pursuant to a written lease for a one year term which has been renewed several times. The petitioner served respondent with a 10 Day Notice of Termination on December 27, 2017, advising respondent that her tenancy was being terminated on January 16, 2018 due to her chronic failure to pay the rent in full in a due and timely fashion as provided for in the lease agreement. The Notice of Termination listed the following eight (8) nonpayment summary proceedings brought by petitioner against the respondent in the City Court of Mount Vernon: Index No. 639/2015; Index No. 1778/2015; Index No. 2799/2015; Index No. 133/2016; Index No. 1642/2016; Index No. 2527/2016; Index No. 279/2016; and Index No. 2288/2017.
A non-jury trial was held in this matter on April 3, 2018. Jana Schmidt, who oversees the legal department for the petitioner, testified on its behalf. Through Ms. Schmidt's testimony, petitioner offered into evidence a 2008 lease, a current renewal lease and a rent ledger which contained a history of charges and payments for respondent from January 2016 through March 2018 (Exhibit 3). Ms. Schmidt testified that petitioner has been forced to commence eight (8) non-payment actions against the respondent within a little over two (2) years to collect rent due. The Court took judicial notice of the prior nonpayment proceedings commenced by petitioner against the respondent, and reviewed the court file for the last five non-payment actions against the respondent.
Sondra Furlow testified on her own behalf that she has resided in the subject premises for almost twenty years and currently resides therein with her eleven year old son who has special educational needs. Ms. Furlow further testified that between 2015 and 2017 she was consistently behind on her rent due to either a lack of employment, insufficient income, or having to care for a sick parent. She added that it was never her intent, to not pay the rent timely, and now has all of the rental arrears that are now due. Lastly, she testified that she would be willing to enter a probationary contract with the petitioner which would obligate her to stay current in her rent obligations.
It is well-settled that an obligation to pay rent under a lease in a timely manner is a primary obligation of a tenancy and continued failure to do so, without justification, constitutes a violation of a substantial obligation of the tenancy. Zalaznick v. Imbembo, 35 Misc 2d 164 (App. Term 1st Dept. 1962) ; Desjardins v. Owens, NYLJ 4/23/80 (App. Term 1st Dept. 1980), aff'd 81 AD2d 758 (1st Dept. 1981) ; Matter of Estate of Birnbaum v. Yankee Whaler, Inc., 75 AD2d 708 (4th Dept. 1980), aff'd 51 NY2d 935 (1980) ; East End Residences v. Dolen, NYLJ 4/14/97 (App. Term 1st Dept. 1997) .
It is further well-settled that a history of repeated non-payment cases brought to collect chronically late rent in a relatively short time period may support a holdover proceeding based upon a violation of a substantial obligation of the tenancy, depending upon the totality of the circumstances of each predicate case. Adam's Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 (App. Term 1st Dept. 2000) ; Pamela Equities Corp v. Coverton, NYLJ 7/18/90 (App. Term 1st Dept. 1990); Greene v. Stone, 160 AD2d 367 (1st Dept, 1990) . The prior non-payment cases need not have resulted in a judgment or a warrant to support such a holdover proceeding. Stern v. Carroll, 28 Misc 2d 507 (App. Term 1st Dept. 1960) . Moreover, the analysis is not limited to the number of cases commenced. As the Court found in Greene v. Stone , "[t]he analysis, when properly evinced, may include breaches that did not comprise a non-payment proceeding." Id. at 368. See also, Sharp v. Norwood, 89 NY2d 1068 (1997), where the court held that the landlord's commencement of repeated non-payment cases and service of rent demands due to the Respondent's chronic rent defaults may support an eviction proceeding on the ground that Respondent violated a substantial lease obligation.
Only where there are bonafide claims that the subject premises is in need of repairs, precipitating the withholding of rent, or a viable dispute regarding the amount of rent owed, should a holdover petition based upon chronic nonpayment of rent not be sustained (see Adams Tower Ltd. Partnership v. Richter , 186 Misc 2d 620 [App. Term 1st Dept 2000] ; Tenth Street Holdings, LLC v. McKowen , 50 Misc 3d 141[A] [App. Term 1st Dept. 2016] ).
In the case at bar, petitioner was required to commence eight (8) nonpayment summary proceedings against the respondent all of which were commenced within a thirty (30) month period. Petitioner did not assert any defenses regarding any breach of warranty of habitability or issues with the amount sought in any of the prior proceedings. Rather, respondent acknowledged after each proceeding, with the exception of the last proceeding which was withdrawn by petitioner, that the amount sought was properly owed by respondent and all of the proceedings were resolved with payment of the amount sought by petitioner.
While the Court has empathy for respondent and her son, the record conclusively demonstrates that the tenant's pattern of rent defaults forced landlord to commence eight nonpayment proceedings over a two and one-half year period, which were almost uniformly resolved in landlord's favor, with no bona fide defenses advanced by tenant (see Definitions Personal Fitness, Inc. v. 133 E. 58th St. LLC. , 107 AD3d 617 [2013] ; Adam's Tower Ltd. Partnership v. Richter , 186 Misc 2d 620 [2000] ).However, respondent is a long term tenant and relocating and finding a new school for her young son may prove difficult. Based on the foregoing, final judgment of possession to petitioner with the execution of the warrant stayed through June 30, 2018 conditioned upon the payment of arrears within ten days of the date of this order, and payment of May and June use and occupancy by the 5th of each month. On default or after June 30, 2018, the warrant may execute on Marshal's notice.
This constitutes the Decision and Order of this Court.