Putnam Realty Assoc. LLC v Piggott |
2012 NY Slip Op 50281(U) [34 Misc 3d 1228(A)] |
Decided on January 19, 2012 |
Civil Court Of The City Of New York, Kings County |
Sikowitz, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Putnam Realty
Associates LLC, Petitioner,
against Matthew Piggott, Respondent. |
RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.
PAPERSNUMBERED
NOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT
ANNEXED............................................................................................
1-3
ANSWERING AFFIRMATION AND AFFIDAVIT
ANNEXED......13-14-
REPLYING
AFFIRMATION................................................................18
;-
EXHIBITS.............................................................................................-4-12;&
#151;15-17;
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION
IS AS FOLLOWS:
Petitioner commenced this summary nonpayment proceeding to recover possession
of the subject rent stabilized apartment No.11, located at 186 Prospect Place, Brooklyn, New
York. The petition demands $7591.86 in rent representing a balance of $583.98 for August 2010,
and $583.99 each month for the period June 2010 through and including July 2011. Petitioner
appears by counsel. Respondent initially appeared pro se and filed a written answer, but
subsequently appeared by counsel on the first adjourn date.
The respondent moves by Notice of Motion for an order granting him leave to serve
an amended answer and deeming that answer served and filed nunc pro tunc, as well as for an
order granting him summary judgment and dismissing the underlying summary nonpayment
petition. The petitioner opposes the motion in its entirety.
[*2]The Undisputed Facts
The prior tenant of record, Willie May Rogers, passed away on November 4, 2009.
The last lease Ms. Rogers entered into before she died expired on May 31, 2010. After Ms.
Rogers died the petitioner commenced a licensee holdover proceeding under L & T index
77480/2010 against the respondent, who is Ms. Rogers' great grandson. Pursuant to the decision
and order after trial of the Honorable John Lansden, dated February 25, 2011 [FN1], the holdover proceeding was
dismissed. The trial court found that respondent successfully proved his affirmative defense that
he was entitled to succeed to the rent stabilized tenancy of Willie May Rogers.
The petitioner subsequently sent the respondent a lease renewal offer. The
petitioner's lease renewal offer was dated April 21, 2011 and was to commence on June 1, 2010.
This commencement date in the lease offered by petitioner was one day after the expiration of the
deceased tenant of record's lease which expired on May 31, 2010. The respondent notified the
petitioner's attorney by letter dated May 12, 2011 that he objected to the June 1, 2010 lease
commencement date based on its noncompliance with Rent Stabilization Code (RSC) 2523.5( c )
(1). Petitioner's lease renewal offer commencing June 1, 2010 was returned unsigned, and
respondent forwarded a proposed renewal lease commencing on August 1, 2011 which he signed,
along with an explanation that he had chosen a commencement date of August 1, 2011 with
increases in effect at that time "...which is 90 days (plus about 10) from the date the lease was
offered, rather than having it commence on the date that it would have had the offer been
timely..."[FN2]
Petitioner notified respondent that the landlord refused to sign the respondent's
proposed renewal lease form. Petitioner objected to the commencement date, and stated that
respondent failed to provide two originals of the renewal lease. Petitioner further advised the
respondent that the section of the rent stabilization code the respondent was relying on was
inapplicable to the particular situation presented [FN3].
The petitioner then commenced the underlying nonpayment proceeding.
The instant motion:
Respondent argues that the petitioner cannot maintain this proceeding because there
is no explicit or implicit agreement between the parties that obligates him to pay rent. The
respondent states [*3]that the landlord chose not to recognize him
as a successor tenant and failed to offer him a proper renewal lease upon expiration of his
deceased great grandmother's lease. Instead of offering respondent a renewal lease upon the
expiration of the deceased tenant's term, petitioner tried to evict him by commencing a licensee
holdover proceeding against him. Respondent argues that the petitioner cannot maintain this
proceeding and avail itself of the remedy of a nonpayment proceeding to collect rent from the
successor tenant from the date of the expiration of the deceased tenant's lease period. Respondent
argues that the landlord is not entitled to seek a possessory judgment for rent arrears for the
period of time petitioner refused to acknowledge respondent's succession rights and offer him a
renewal lease.
If petitioner had properly offered respondent a renewal lease in his name at the
expiration of the prior tenant's lease, there would have been a landlord tenant relationship, and an
obligation by respondent to pay rent. Under those circumstances, petitioner would have had a
cause of action for non payment of rent. Respondent contends that the petitioner failed to avail
itself of its remedies regarding use and occupancy during the pendency of the holdover case, and
can pursue its claims for use and occupancy in small claims or civil court. The respondent
contends that whether or not he is liable for unpaid use and occupancy, the remedy is not
eviction, but a plenary action in civil or small claims court.
The respondent contends that after the licensee holdover proceeding against him was
dismissed after trial, he was found to have succeeded to his great grandmother's rent stabilized
tenancy. The petitioner still failed to tender him a valid renewal lease. Respondent argues that the
renewal lease the petitioner offered, dated April 21, 2011, was invalid, as it purported to
commence the day after his deceased great grandmother's lease expired. This date, April 21,
2011, was a date prior to petitioner's commencement of its unsuccessful licensee holdover
proceeding against him. Respondent argues that he rejected petitioner's invalid lease renewal
offer, and offered his own, signed renewal lease commencing August 1, 2011. However, as of the
date of the motion submission, neither he nor his attorney have ever received a countersigned
copy of that lease from the petitioner.
Petitioner argues in opposition that the respondent should not be permitted to file an
amended answer as his attorney's affirmation does not state a reason as to why he did not initially
put in an answer on behalf of the respondent. Appended to petitioner's opposition is an affidavit
from petitioner's managing agent Debra Cooper. Ms. Cooper attests that she has never received
any notice of repairs from the respondent or his attorney. Ms. Cooper also attests her attorney
informed her that the payment of rent for the balance of the lease term after Ms. Rogers died is
the responsibility of her estate, and the petitioner has never received rent for that period from
November 1, 2009 through May 31, 2010 totaling $4108.93. Ms. Cooper states that the
respondent paid one month's use and occupancy in August 2010. Respondent failed to pay U & O
pursuant to a September 12, 2011 stipulation that obligated him to pay use and occupancy for
September and October 2011.
Petitioner argues that paragraph 28 of the original lease between the petitioner's
predecessor and [*4]the now deceased Willie Mae Rogers does
obligate the respondent to pay rent, as it states: "This Lease is binding on Landlord and Tenant
and their heirs, distributees, executors, administrators, successors and lawful assigns"[FN4]. Petitioner contends the
respondent's rights and obligations including payment of rent, took effect upon Willie May
Rogers' death and thus the renewal lease the petitioner offered to the respondent commencing
June 1, 2010 is correct as it commences immediately after Ms. Rogers' last renewal lease expired
on May 31, 2010.
Petitioner further contends that RSC section 2523.5( c )(1) is inapplicable to the
situation herein. Petitioner argues that RSC Section 2523.5 ( c )(1) makes reference to RSC
Section 2523.5(a) which states it applies to the tenant named in the expiring lease, and in the
instant matter, the tenant named in the expiring lease, Willie May Rogers, is deceased.
Petitioner further argues that there is a dispute as to the date the respondent's lease
should begin and the amount of the monthly rent, and as such the court is precluded from
granting the instant summary judgment motion. Petitioner also points out that the respondent has
not cited which specific section of CPLR 3211 he is moving under in requesting summary
judgment.
DISCUSSION:
The branch of respondent's motion seeking leave to amend the
answer:
A party may amend or supplement his pleadings by leave of the court, which shall be
freely given. CPLR 3025(b). Public policy favors resolution of cases on their merits.
Goldman v. City of New York, 287 AD2d 482 (AD 2nd Dept, 2001). "Courts have broad
discretion to grant relief from pleading defaults where the moving party's claim or defense is
meritorious, the default was not willful, and the other party not prejudiced." Goldman v City
of New York, supra. At 483. See also Smith v. Maya 1999 WL 1037917 (N.Y.AD2d
Dept., Jul 23, 1999) (NO. 98-770-KC).
The respondent initially appeared pro se and filed a written answer through the court
clerk's office. Respondent subsequently appeared by counsel on the first adjourn date. The
respondent's instant motion was returnable on the first adjourn date, and appended to it is his
proposed amended answer. Respondent's proposed amended answer interposes an affirmative
defense of a breach of the warranty of habitability and a counterclaim for attorney's fees
[FN5]. The proposed
amended answer also requests the court issue an order dismissing the petition with prejudice, and
directing the petitioner to offer him a rent stabilized lease.
[*5]
In the instant matter, the petitioner has not
demonstrated how it would be prejudiced if the court allows respondent leave to file the
proposed amended answer, which was appended to the instant motion and made returnable on
the first adjourn date. Petitioner's arguments in opposition to this branch of the respondent's
instant motion are unavailing. Accordingly, the branch of the respondent's motion seeking an
order permitting the filing of his proposed amended answer appended to his instant motion is
granted, and is deemed served and filed nunc pro tunc.
The branch of respondent's motion seeking dismissal:
The respondent's right to occupy the subject apartment as a successor-in-interest
relates back to the date of the death of his great grandmother Willie Mae Rogers. The petitioner's
unsuccessful licensee holdover proceeding against the respondent only resulted in judicial
enforcement of that pre-existing right. 245 Realty Associates v Sussis, 243 AD2d 29 (AD
1st Dept, 1998) There is a marked difference between the occupant's status as a
successor-in-interest and his eventual status as a tenant in his own right. "...The
successor-in-interest is not yet a tenant...." 245 Realty Associates v Sussis, supra at 35.
Here, the petitioner did not recognize the respondent's right to succeed to the rent
stabilized tenancy of his deceased great grandmother, Willie May Rogers. The petitioner did not
offer the respondent a renewal lease commencing after Ms. Rogers' last lease expired on May 31,
2010, and instead chose to commence and pursue a licensee holdover proceeding against him to
evict him. Petitioner's attempt to evict the respondent was unsuccessful. After trial the court
dismissed the holdover as it found that the respondent was entitled to succeed to his great
grandmother's rent stabilized tenancy as a non traditional family member.
"...The relation of landlord and tenant is always created by contract, express or
implied, and will not be implied where the acts and conduct of the parties negative its
existence..." Stern v Equitable Trust Co. Of New York, 238 NY 267 at 269 (1924) "..It is
elementary that a nonpayment proceeding must be predicated on a default in rent owed pursuant
to the agreement under which the premises are held' (internal citations ommitted)...". 615
Nostrand Avenue Corp v Roach, 15 Misc 3d 1 (AT, 2d Dept, 2005) RSC Section 2520.6 (d)
defines a tenant as "Any person or persons named on a lease as lessee or lesseess, or who is or
are a party or parties to a rental agreement and obligated to pay rent for the use or occupancy of a
housing accommodation." See also Pald Enterprises, Inc. v Gonzalez, 173 Misc 2d 681
(AT 2nd Dept, 1997)
The petitioner's act of commencing and pursuing a licensee holdover proceeding
against the respondent through trial is express conduct that it did not have a landlord tenant
relation with the respondent, and did not want one. To date, the respondent has not entered into a
rental agreement with the petitioner. The petitioner offered the respondent a renewal lease dated
April 21, 2011 that was to commence on June 1, 2010. Approximately three weeks after receipt
of that renewal lease, the respondent via counsel, rejected that renewal lease as invalid due to its
commencement date. The respondent instead prepared and signed a renewal lease with a August
[*6]1, 2011 commencement date which was forwarded to
petitioner's counsel. Along with that renewal lease was an explanation as to why the August 1,
2011 date was selected as well as to the lease increase amounts. The petitioner failed to execute a
copy of the lease commencing August 1, 2011.
The court finds the petitioner's argument unpersuasive that RSC section 2523.5 ( c
)(1) is inapplicable to the respondent in terms of his option to commence the renewal lease either
on June 1, 2010 or on the first rent payment date occurring no less than ninety days after the
renewal lease offer is made. Petitioner's argument appears to be that RSC 2523.5( c) (1) is
inapplicable because of its reference to RSC 2523.5(a), and the language in RSC 2523.5(a) refers
to tenants named in an expiring lease, which was not the respondent, but the deceased Willie
Mae Rogers.
RSC section 2523.5(a) states in pertinent part:
On a form prescribed or a facsimile of such form approved by the DHCR...every
owner...shall notify the tenant named in the expiring lease not more than 150 days and not less
than 90 days prior to the end of the tenant's lease term...and offer to renew the lease or rental
agreement at the legal regulated rent permitted for such renewal lease and ...on the same terms
and conditions..."
In the instant matter, petitioner chose not to recognize the respondent as the
successor tenant to his deceased great grandmother's rent stabilized apartment. If the petitioner
had chosen this course and offered the respondent a timely renewal lease in his own name after
his deceased great grandmother's lease expired on May 31, 2010 it could have entered into a
lease with the respondent commencing on June 1, 2010. "...While parties are accorded
considerable latitude in charting their procedural course before the courts...they are bound by the
consequences attendant upon the exercise of that perogative..." Sean M. v City of New York, 20 AD3d
146 at 150 (AD, 1st Dept, 2005)(internal citations ommitted) Instead, petitioner chose to
pursue a licensee holdover proceeding against the respondent to evict him, which was dismissed
after trial. The court also held the respondent is entitled to succeed to Willie Mae Rogers' rent
stabilized tenancy. Accordingly, the respondent is the subject apartment's rent stabilized tenant,
and as such is entitled to a lease renewal pursuant to RSC 2523.5( c)(1).
RSC Section 2523.5 ( c )(1) states:
Where the owner fails to timely offer a renewal lease or rental agreement in
accordance with subdivision (a) of this section, the one- or two-year lease term selected by the
tenant shall commence at the tenant's option, either (I) on the date a renewal lease would have
commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less
than 90 days after the date that the owner does offer the lease to the tenant. In either event, the
effective date of the increased rent under the renewal lease shall commence on the first rent
payment date occurring no less than 90 days after such offer is made by the owner, and the
guidelines rate applicable shall be no greater than the rate in effect on the commencement date of
the lease for which a timely offer should have been made.
[*7]
After the court dismissed the petitioner's licensee
holdover case against the respondent on February 25, 2011 and recognized him as the successor
rent stabilized tenant to the subject apartment, the petitioner offered the respondent a renewal
lease, which was to commence on June 1, 2010. Ms. Roger's last rent stabilized lease expired on
May 31, 2010. Respondent via counsel rejected that offer as invalid as he chose instead pursuant
to RSC 2523.5 ( c )(1) to have the renewal lease commence on August 1, 2011 which was the
first rent payment ninety days after the petitioner sent the renewal lease to him. Respondent went
so far as to forward to petitioner a proposed renewal lease he signed commencing August 1, 2011
with an explanation as to why he had chosen the lease to commence on August 1, 2011 with
increases in effect at that time "...which is 90 days (plus about 10) from the date the lease was
offered, rather than having it commence on the date that it would have had the offer been
timely..."[FN6]
It is undisputed that to date neither the respondent nor his attorney have received a
copy of the lease he signed that was to commence on August 1, 2011 back from the petitioner
with the petitioner's signature. Therefore, there is no lease in effect between the parties, and as
such no contract between them for payment of rent. Accordingly, the underlying non payment
proceeding cannot be maintained.
Based on the foregoing, and in light of the particular circumstances presented herein,
the remaining branch of the respondent's motion seeking dismissal of the underlying nonpayment
proceeding is granted. The court finds the petitioner's arguments in opposition to this branch of
the respondent's motion unavailing. This constitutes the decision and order of the court.
January 19, 2012
_______________________________
Marcia J. Sikowitz, J.H.C.