1050 Tenants Corp. v Lapidus

[*1] 1050 Tenants Corp. v Lapidus 2005 NY Slip Op 51455(U) [9 Misc 3d 1108(A)] Decided on August 26, 2005 Civil Court Of The City Of New York, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 26, 2005
Civil Court of the City of New York, New York County

1050 TENANTS CORP., Petitioner-Landlord,

against

STEVEN LAPIDUS and IRIS LAPIDUS, Respondent-Tenant.



99547/04



Gallet, Dreyer & Berkey, LLP (Beatrice Lesser of counsel), New York City, for petitioner.

Sonnenschein, Sherman & Deutsch, LLP (Robert N. Fass of counsel), New York City, for respondents.

Gerald Lebovits, J.

During this nonpayment trial, an evidentiary issue arose while respondent Mr. Lapidus was being cross-examined. According to petitioner, a cooperative corporation, a stipulation dated April 20, 1999, defeats respondents' Mr. and Ms. Lapiduses' affirmative defenses raising warranty-of-habitability and actual-partial-eviction claims and similar counterclaims. After a hearing on the issue, the parties submitted affirmations — essentially memorandums of law. For the following reasons, the court agrees with petitioner.

The parties have endured much litigation against one another over the years. To settle one nonpayment case, the parties agreed, in a two-attorney so-ordered stipulation, that respondents will never again withhold rent or additional rent unless they first comply with a series of conditions precedent. The conditions in the stipulation forbid withholding rent unless respondents (1) specified the conditions that respondents allege breach the warranty of habitability; (2) in writing; (3) delivered to the cooperative's managing agent, superintendent, and attorneys; (4) do not secure a cure within 10 business days; (5) bring a Housing Part (HP) proceeding if the conditions are not cured; and (6) substantially prevail in the HP proceeding. Respondents concede that they satisfied none of these conditions before they withheld rent and sought abatement in this proceeding.

At the hearing, Mr. Lapidus testified that he never knew about the stipulation, even though he was a partner of a law firm, he specialized in real-estate law, an associate of his firm signed the stipulation, he received a $10,000 abatement, he was involved in a great deal of litigation with his cooperative, and he knew that his case ended the day his associate appeared in [*2]court. Despite all that, Mr. Lapidus testified that he never asked his associate how his case was resolved, and he testified that he never approved the stipulation.

That testimony defies common sense. But even if it were true (and it is false), and even if respondents had moved to vacate his stipulation (and he has not done so), he has failed to demonstrate that his associate "lacked apparent authority" to enter in the stipulation on his behalf. (See e.g. Mar v NY Infirmary-Beekman Downtown Hosp., 161 AD2d 373, 373 [1st Dept 1990, mem].)

In any event, although respondents sought to disassociate themselves from the stipulation when the issue arose during the hearing on the issue in this proceeding, respondents do not raise it now, and thus the court deems that argument abandoned.

Respondents instead raise other arguments. They argue, first, that petitioner is precluded from defending against respondents' counterclaims on the ground that respondents did not comply with the 1999 stipulation. According to respondents, petitioner should have raised the stipulation as an affirmative defense to respondents' counterclaims. Respondents' argument is supported by CBS, Inc. v Arcane Visuals, Ltd. (156 Misc 2d 665 [Civ Ct, NY County 1993]). This court respectfully disagrees with CBS — the only case the litigants and the court found on the subject — as contradicting Civil Court Act § 907 (a), which provides that a defendant or respondent need not reply to a counterclaim except upon court order. If a petitioner need not reply to a counterclaim, it cannot be the law that a petitioner would have to reply or move to strike to assert a defense, even an affirmative defense.

Respondents next argue that the stipulation violates RPL § 735 (b) (2) because it modifies, they contend, the warranty of habitability as set forth in RPL § 235( b). But the stipulation did not modify rights every tenant enjoys as a matter of public policy. Rather, the stipulation merely set negotiated conditions to asserting those rights.

Respondents further argue that the stipulation preserves all defenses and counterclaims for actual partial eviction. Although the stipulation refers only to the warranty of habitability, and not to actual partial eviction, the stipulation does not distinguish between the two in providing at paragraph 9 that respondents may "not withhold rent and/or additional rent" unless they follow procedures they agree they did not follow. Moreover, although some elements of the warranty of habitability and actual partial eviction differ, on the question of conditions the stipulation required respondents to raise and petitioner to cure, the elements of the two defenses are identical and inseparable.

Respondents also urge that the stipulation has no effect because petitioner did not prove it was entered. But entry in this context would affect only a possible right to appeal. Entry in a New York City Civil Court, Housing Part, proceeding is in accordance with entry of any Civil Court judgment. (Civ Court Act § 110 [e].) That makes a so-ordered stipulation signed in open court entered the moment the judge or court clerk places the stipulation into the court file. (See [*3]CPLR 5016 [c] and Civ Ct Act § 1401.)

Respondents argue, finally, that they tendered rent — for September 2003. Even if true, tendering rent for one month of the many months respondents agree they owe constitutes neither a defense of tender nor a satisfactory answer that they did not withhold rent under the 1999 stipulation.

The court doubts, given this decision, that any issues remain unresolved at trial. But the court is not certain. This proceeding is adjourned to August 25, 2005, at 9:30 a.m. to complete the trial, assuming it is not already completed. The court would be grateful if both sides would address at that time whether petitioner is entitled to a possessory judgment of $30,293.34 — the amount of the money-only Supreme Court judgment; how much money is owed through August 2005; and how to calculate pre-judgment interest, if same may be awarded.

This opinion is the court's decision and order.

Dated: August 26, 2005

J.H.C.