St. Mark's Realty LLC v ODendHal

[*1] St. Mark's Realty LLC v ODendHal 2004 NY Slip Op 51909(U) [16 Misc 3d 129(A)] Decided on December 22, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 29, 2007; it will not be published in the printed Official Reports.

Decided on December 22, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: ARONIN, J.P., PATTERSON and GOLIA, JJ
2003-716 RI C.

St. Mark's Realty LLC, Respondent,

against

Troy P. O'Dend'hal, Appellant.

Appeal by tenant from a decision of the Civil Court, Richmond County

(G. Lebovits, J.), dated April 11, 2003, in favor of landlord, deemed (CPLR 5520 [c]) a premature appeal from (1) a final judgment awarding landlord possession and the sum of $6,670.80, and (2) a judgment awarding landlord attorney's fees of $1,500,
both entered April 16, 2003.

Final judgment awarding landlord possession and the sum of $6,670.80, and judgment awarding $1,500 in attorney's fees to landlord affirmed without costs.

Although no lease was in effect at the commencement of this nonpayment proceeding, the parties charted a course during the prior and present proceedings indicating their understanding that a landlord-tenant relationship existed between them. Tenant did not dispute below the assertion in the petition that a tenancy existed.
Moreover, the record reflects that, in the course of the present proceeding, the parties entered into a one-year lease agreement, and agreed to recalculate the awards made in the money judgment in the prior proceeding accordingly, and to offset the resulting differences in amounts against monetary awards made in the present proceeding. Under these circumstances, tenant cannot argue, for the first time on appeal, that a tenancy did not exist.

Tenant's argument that he is entitled to a further rent abatement is without merit. The record reflects that landlord complied with the court's previous repair order and that landlord did not have notice of the problems tenant now complains of (see generally Park West Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]). The court found that tenant had signed a form indicating that the repairs had in fact been made. [*2]

The attorney's fees judgment should be affirmed as landlord prevailed in the proceeding and the amounts sought are reasonable (see 490 Owners Corp. v Israel, 189 Misc 2d 34 [App Term, 2d & 11th Jud Dists 2001]).

Patterson and Golia, JJ., concur.

Aronin, J.P., dissents in a separate memorandum.

SM-2

Aronin, J.P., dissents and votes to reverse both the final judgment and the judgment, and to remand the matter for further determinations in the following memorandum:

In the circumstances of this matter, the final judgment should be reversed and the matter remanded for determination of an appropriate rent abatement, recalculation of the monetary portion of the award, and entry of judgment accordingly. Moreover, the judgment awarding landlord attorney's fees should be reversed, and landlord's claim therefor should be dismissed.

I agree that even though landlord failed to offer tenant a renewal lease prior to commencement of the summary proceeding, the parties charted their own course on
the assumption that a landlord-tenant relationship continued to exist between them, and that therefore tenant cannot argue that this nonpayment proceeding does not lie.

However, the final judgment should be reversed. The court found in the prior proceeding that tenant was entitled to a 10% rent abatement by reason of various conditions in the apartment, and landlord did not appeal that determination. In the present proceeding, tenant testified that of these problems, only the kitchen sink had been satisfactorily repaired, while other conditions, notably the vermin infestation and condition of the windows, were unaddressed. Testimony of the contractor retained to perform repairs, and results of a court-ordered inspection, substantiated the continued existence of several of the problems noted in the earlier proceeding. Therefore, the court's present finding that tenant is not entitled to an abatement is against the weight of the evidence. As the record does not contain sufficient information regarding the seriousness or extent of these problems for this court to determine an appropriate abatement level, the matter should have been remitted for consideration of this issue.

I note that the parties entered into a one-year lease agreement in the course of this proceeding, that they agreed to recalculate the awards made in the money judgment in a prior proceeding in accordance with the new lease's terms, and that they further agreed to offset the [*3]resulting differences in amounts against monetary awards made in the present proceeding. The majority opinion fails to consider that this recalculation of the money portion of the judgment never occurred, and the matter should have been remanded to permit calculation of both an appropriate abatement and this offset.

The attorney's fees judgment should have been reversed and landlord's claim for such fees dismissed with prejudice, as landlord's conduct in failing to offer a renewal lease and to make the repairs ordered in the prior proceeding in large part engendered the need for the instant proceeding (see e.g. Jacreg Realty Corp. v Barnes, 284 AD2d 280 [2001]; Nesbitt v New York City Conciliation & Appeals Bd., 121 Misc 2d 336 [1983]).
Decision Date: December 22, 2004