Fairfield Presidential Assoc. v Salis
Annotate this CaseDecided on June 1, 2005
Civil Court of the City of New York, Kings County
Fairfield Presidential Associates, Plaintiff,
against
Mohammed O. Salis, Defendant
72737/2003
Milagros A. Matos, J.
Plaintiff, Fairfield Presidential Assoc. (landlord) brings this action to recover $8,635.00, plus $500.00 for reasonable attorney's fees, with interest from July 1, 2002, from defendant Mohammed O. Salis (tenant), for his failure to pay rent or use and occupancy for the premises located at 240 Cozine Avenue, Apt. 3L, Brooklyn, NY. Defendant argues that plaintiff breached his warranty of habitability, that he was harassed by plaintiff landlord, and that he does not owe the plaintiff any money. In his answer, defendant filed a counterclaim against plaintiff demanding $35,000.00 for harassment, malicious prosecution, predatory and unscrupulous practice and $17,500.00 for money owed for breach of lease and retaliating conduct. Plaintiff presented Deborah Ketay, the landlord's property manager, as a witness at trial. Defendant testified on his own behalf.
Plaintiff and defendant entered into a lease on May 31, 2000 for the premises located at 240 Cozine Avenue, Apartment 3L, Brooklyn, NY. The lease term began on July 1, 2000, and ended on June 30, 2001. Monthly rent was $798.00. The parties also entered into a lease agreement for the parking garage space for the same period of time for $25.00/month. Defendant failed to renew the lease in July, 2001, despite requests by plaintiff to sign a new lease. On August 1, 2001, plaintiff mailed to defendant a lease renewal for a one year lease beginning October 1, 2001, and ending September 30, 2002. The new rent was $878.00/month. In the letter, defendant was advised that if he failed to sign a renewal lease on or before 10/12/2001 then the lease could only be renewed for a one year term at the fair market value of $1054.00/month. In the letter, plaintiff informed defendant that he could avoid paying the fair market value increase by remitting a signed lease renewal by the October 12th deadline. After several further letters between the parties regarding the lease renewal, defendant failed to renew the lease and was considered a month-to-month tenant.
Plaintiff filed a Notice of Petition - Holdover, dated September 3, 2002, seeking possession of the property. Pursuant to a stipulation of settlement entered into on March 19, 2002, the landlord was granted a final order of possession only, and execution of the warrant was to be stayed through June 19, 2002, on the condition that the tenant was to pay use and occupancy for the months of April, May and June of 2002 at the rate of $798.00/month. Both [*2]sides testified that the use and occupancy was paid for these months, however the tenant did not move out.
The tenant was evicted by the marshal on October 16, 2003, and by Decision/Order of Hon. Marc Finkelstein dated 10/21/03 tenant was granted access to the subject premises to remove his belongings. In the interim, landlord filed this action in Civil Court to recover rent and use and occupancy for the months of August 2002 through March 2003. Defendant testified that he never received the original notice of lease renewal and that by raising his rent to market value the landlord was acting in a usurious and predatory manner. Defendant also testified that he complained to management that his apartment lacked hot water, that it needed a new stove, that the elevators were not working, and that he requested an exterminator be sent to the apartment. Defendant further testified that he was harassed when the landlord sent two men to his apartment to take photographs without his permission and that the landlord had defendant's car towed away from the parking area. Plaintiff testified that all complaints made by the tenant were taken care of and plaintiff produced numerous repair tickets signed by the defendant for work done inside the apartment. Plaintiff denied that it ordered defendant's car towed and that it advised defendant in writing that the men who visited his apartment were representatives of the mortgage company conducting an inspection of the property.
When a valid lease has terminated or a tenant has held over, a landlord may sue to collect unpaid rent and/or secure an award of "use and occupancy." (RPAPL §749(3); 1133 Bldg. Corp. v. Ketchum Communications Inc., 224 AD2d 336 [1 Dept 1996].) A landlord is entitled to a reasonable sum of money for the use and occupancy of its property. (RPL §220.) When an apartment is not subject to rent control laws, as in the case at hand, the amount due to landlord for use and occupancy is calculated at the fair market value for the premises in question. (see Rose Associates v. Johnson, 247 AD2d 222 [1 Dept 1998]; see also Rose Associates v. Lennox Hill Hosp., 262 AD2d 68 [1 Dept 1999]; PJI 6:2 Landlord and Tenant Rent or Compensation for Use and Occupancy ["In deciding what amount to award the property owner for the use and occupancy of the property you should consider the evidence you have heard regarding the intent of the parties, the market value of other comparable property, and the condition of the property during the period of occupancy."].
Defendant failed to produce evidence of any payments made to plaintiff for the months of August 2002 through March 2003. There was no evidence of rent gouging in this case. The evidence supports landlord's position that defendant was requested on numerous occasions to renew his lease at less than market value and that defendant failed to do so.
Defendant's counterclaims and his defenses for non-payment of rent are not supported by any credible evidence. Plaintiff's evidence showed that defendant had an unpaid balance of $3.00 for the month of July 2002. The evidence showed that the fair market value of the use and occupancy of the premises for the months of August 2002-March 2003 was $1,054.00/month, plus $25.00/month for the parking space, totaling $8,632.00. Accordingly, judgment is for plaintiff in the amount of $8,635.00, with interest from July 1, 2002. Plaintiff's request for [*3]attorney's fees is denied for insufficient evidence. Defendant's counterclaims are dismissed.
This constitutes the Decision and Order of this Court.
Dated: June 1, 2005____________________________
MILAGROS A. MATOS, J.C.C.
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