Aimco Columbus Ave. v Bivou Rest. Corp.
Annotate this CaseDecided on September 28, 2005
Civil Court, New York County
Aimco Columbus Avenue, Plaintiff(s)/Petitioner(s),
against
Bivou Restaurant Corp., D/b/a Caprice Café, Defendant(s)/Respondent(s).
L & T 105633/2004
Attorneys for Petitioner:
Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C.
Gregory C. Soumas, Esq., of counsel.
Attorneys for Respondent:
Moss & Kalish, PLLC
James Schwartzman, Esq., of counsel
Manuel J. Mendez, J.
Upon a reading of the foregoing cited papers respondent's motion for an order staying the execution of the warrant of eviction is denied, the motion for sanctions and costs is also denied for the reasons expressed on the record at the time of oral argument.
Petitioner is the landlord of premises located at 181-199 Columbus Avenue in the city and state of New York. Respondent is the tenant at these premises pursuant to a lease that expires on July 31, 2006. Petitioner instituted this non-payment summary proceeding by notice of petition and petition dated December 15, 2004, seeking a Judgment of possession and a money judgment in the amount of $52,300.68. Respondent failed to answer the petition and on January 24, 2005 the Hon. Peter H. Moulton awarded petitioner a judgment of possession by default, with issuance of a warrant of eviction forthwith. On March 4, 2005 respondent moved by order to show cause for an order staying the execution of the warrant of eviction and for an order vacating the warrant of eviction and the default judgment. This motion was decided by the Hon. Geoffrey D. Wright, following a traverse hearing, on March 15, 2005. In his written decision and order Judge Wright denied respondent's motion to vacate the default judgment and the warrant of eviction; However, the last paragraph of the decision states: "Execution of the warrant is stayed to the end of April, to allow the respondent to vacate in a peaceful manner. This stay is conditioned, however, on the payment of March rent, on or before March 25, 2005, and April rent on or before April 8, 2005. In the event of a default in either payment, the warrant may execute without the service of an additional marshal's notice, unless required by law."[see decision dated March 15, 2005, respondent's papers Exh. A].
Respondent appealed Judge Wright's decision to the Appellate Term of the Supreme Court First Department by filing its notice of appeal on April 14, 2005. On April 20, 2005 respondent moved in the Appellate Term for an order Staying enforcement of the decision/order and warrant of eviction pending the determination of the appeal. That motion was denied by a three judge panel of the court on April 29, 2005. Thereafter, respondent moved by order to show cause before the Hon. Geoffrey D. Wright for an order fixing the amount of an undertaking to stay execution of the warrant of eviction. By written decision dated May 25, 2005 Judge Wright decided this motion and ordered the following: "....in view of the fact that no defense to the payment of the rent due has been raised, the appropriate undertaking is all rent due through the month of May, or $75,761.37, as set forth above, and a further direction to pay use and occupancy at the rate due under the lease for the month of June, and continuing until the conclusion of the appellate process, in any form that such conclusion may take, affirmance, reversal or dismissal." " If a warrant of eviction has issued it shall be stayed until June 10, for the filing of an undertaking in the amount of $75,761.37. Rent for June shall be paid on or before June 17. In the event of a default, the warrant may execute without further notice, including a marshal's notice, unless the marshal's notice is required."[see copy of decision Appellate Term in court file, see Judge Wright's decision May 25, 2005 respondent's papers Exh. D]. [*2]
Respondent deposited the undertaking into court and on June 16, 2005 tendered payment of the June use and occupancy. This tender was rejected by petitioner because the remitter was an entity different from respondent. Thereupon, on June 20, 2005 Petitioner caused a Notice of Default to be served upon respondent, by service upon its attorneys, putting respondent on notice of its default in complying with the May 25, 2005 decision/order by failing to pay June use and occupancy by the June 17, 2005 deadline. [See respondent's moving papers EXh. F & G].
On June 30, 2005 respondent moved by order to show cause for an order Staying all proceedings, mainly the execution of the warrant of eviction pursuant to the notice of default dated June 20, 2005. On July 1, 2005 respondent tendered the July use and occupancy on an official bank check from Commerce Bank. Petitioner rejected this tender the same day, giving as a reason " we cannot accept a partial payment of the total rent due."[See respondent's moving papers Exhs.J & K]. By decision/order dated July 6, 2005 the Hon. Geoffrey D. Wright decided respondent's motion as follows: "...I find that the respondent did in fact attempt to make a valid and timely payment of rent as I specified. However, in order to satisfy the petitioner's concerns, I direct that the respondent, on or before July 8, 2005, replace the offending checks with checks that either contain its name as remitter, or no name at all. Upon such payment, and the continued timely payment(within the first five(5) days of the month), I grant the stay requested, only for the purpose of perfecting the appeal and awaiting any determination of the Appellate Term." "... In the event of a default in the payment of rent pursuant to this order, the petitioner may proceed with the eviction without further order of this court, and without the service of any additional marshal's notice, unless such service is required by the rules applicable to such notices."[see decision/order dated July 6, 2005, petitioner's papers in opposition, EXh. A].
Prior to service of a copy of Judge Wright's order with Notice of Entry upon petitioner's counsel, on July 8, 2005 respondent tendered payment of the June and July use and occupancy to petitioner, such tender was rejected. Counsel for respondent sent an e-mail to petitioner's counsel as follows: " On July 8, 2005, our client, the tenant, attempted to pay rent to the landlord in compliance with Honorable Judge Geoffrey D. Wright's decision and order dated July 6, 2005. The landlord refused to accept the rent." Petitioner's counsel responded by e-mail as follows: "I have no knowledge of any decision and order of Judge Wright dated July 6, 2005 so I cannot address any concerns you may have in that regard"[see petitioners papers in opposition, EXh. B]. Respondent's counsel did not send any reply clarifying his message, nor did respondent tender payment again. The month of July ended without respondent paying the use and occupancy for June or July.
Respondent did not tender the use and occupancy for August by the 5th of the month as mandated by Judge Wright's order. On August 22, 2005, petitioner's counsel sent an e-mail to respondent's counsel as follows: "Your client has not paid the amounts of use and occupancy necessary to keep the stay of eviction pending appeal. Notwithstanding that fact, my client is willing to settle the entire proceeding upon payment of all amounts due. Please contact to discuss this matter. If you do not reply in a timely fashion I will proceed to enforce the warrant of eviction based upon your client's default in payment of use and occupancy."[see petitioners papers in opposition, EXh C]. No answer was received from respondent. On August 24, 2005 petitioner's counsel sent [*3]Notice of Default of Judge Wright's order in failing to pay the August use and occupancy [see petitioner's papers in opposition, EXh. D]. Respondent's counsel sent an e-mail on August 25, 2005 as follows: " My client requested that the managing agent for the landlord provide a breakdown of the amount of rent the landlord calculates as outstanding to date, so that my client can verify same and pay all rent. The managing agent has refused to provide this information to my client. Please immediately provide this information."[see respondent's moving papers, EXh. M]. Following this communication on August 31, 2005 respondent was served with a Marshal's Notice of Eviction.[see respondent's moving papers, EXh. N].
Issue
Has petitioner forfeited all future payments for use and occupancy by rejecting tender of the June and July payments? No.
By failing to tender payment for August use and occupancy is respondent in default of Judge Wright's order? Yes.
Legal Analysis
Repeated tender of rent by a tenant and refusal of the rent by a landlord can preclude the landlord from maintaining a summary eviction proceeding for the failure to pay rent(Janes v. Paddell, 74 Misc. 409, 132 NYS 379[App. Term 1911]; Albany v. White, 46 Misc2d 915, 261 NYS2d 361[Civ. Ct. 1965]; Scherer, Residential Landlord Tenant Law in New York, 2005 Ed. Sect.12:13, Pg.12-9). This rule is in place in order to prevent a landlord, who has the tenant's eviction in mind, from manipulating a tenant by making it impossible for the tenant to satisfy a judgment, resulting in the tenant's eviction(Haberman v. Singer, 3 AD3d 188, 771 NYS2d 505[App. Div. 1st. Dept. 2004]). "There may be instances in which a landlord would purposefully delay many months in instituting a proceeding for nonpayment hoping to terminate the tenancy by eviction where the tenant is unable to pay large arrears in rent"(Haberman, supra , quoting City of New York v. Betancourt, 79 Misc2d 146,359 NYS2d 707). In Haberman the landlord rejected the tendered rent for seven years prior to starting a summary proceeding, this the court found was done with the intent of causing the tenant's eviction by its failure to pay rent.
The payment of rent is not waived and the landlord is entitled to use and occupancy when the tenant has occupied the premises and the landlord has failed to bill tenant due to an oversight(Goldman v. Segal, 278 AD2d 74, 718 NYS2d 34), enabling a landlord that realized two years later that he wasn't billing the tenant for the apartment to collect use and occupancy. The rejection of tender of rent must be examined in each instance to determine whether it is being used to manipulate the tenant so as to create an eviction, or whether the Landlord has a reasonable explanation for rejecting the tender( See Greenburger v. Leary, 119 Misc2d 358, 462 NYS2d 996[Civ. Ct. NY CTY 1983]). In any event, rejection of tender of rent would only preclude landlord from collecting back rent, and does not operate to preclude landlord from collecting future rent(Cinemas Francais, Inc., v. Higgins, 116 NYS2d 60[App. Term 1952]). [*4]
Judge Wright found that the respondent properly tendered the June rent and granted continuation of the stay on condition that tenant pay July use and occupancy by July 8 and future use and occupancy every subsequent month, by the 5th of the month. From the tenor of the e-mail between counsel it can be seen that confusion arose when respondent tendered payment on July 8 without serving a copy of Judge Wright's July 6 decision on petitioner, either prior to the tender of payment or simultaneously therewith. Petitioner's rejection of this payment cannot be said to be intentional, in bad faith or done with the intent to manipulate respondent's ability to satisfy a judgment and evict him.(See Alsens American Portland Cement Works v. Degnon Contracting Co., 222NY 34, 118 NE 210[1917];Jefpaul Garage Corp., v. Presbyterian Hospital in City of New York, 61 NY2d 442, 474 NYS2d 458, 462 NE2d 1176[1984];Haberman v. Singer, supra ). Respondent could have deposited the money with the court, as it had done previously in this case, pursuant to Judge Wright's order, and avoided the predicament it now finds itself in(See Brause v. Parisi, 274 AD469, 84 NYS2d 799[1st. Dept. 1948]). Under these facts petitioner's rejection of tender of payment for use and occupancy does not operate as a forfeiture of its right to such claim(Greenburger v. Leary, Supra). Nor does this rejection forfeit petitioner's right to receive future use and occupancy.
Respondent was under an obligation, pursuant to Judge Wright's July 6 order to pay use and occupancy every month by the 5th of the month. Respondent did not pay August use and occupancy by the 5th of the month, in fact respondent did not pay at all, even after petitioner's counsel sent an e-mail to respondent's counsel or after having been served with a notice of default; which pursuant to Judge Wright's order was not required to be served. In failing to pay the August use and occupancy petitioner is in clear violation of Judge Wright's order, triggering an automatic vacatur of the stay of execution of the warrant of eviction. The only avenue left to respondent is to tender proper payment of all use and occupancy prior to the execution of the warrant(Albany v. White, supra ), or else suffer the consequences of its default.
Accordingly, for the above stated reasons respondents motion is denied in its entirety.
This constitutes the decision and order of this court.
Dated: September 28, 2005_______________________
Manuel J. Mendez
Judge Civil Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
