Levister Redevelopment Co., LLC. v Montgomery
Annotate this CaseDecided on July 26, 2006
City Court of Mount Vernon
Levister Redevelopment Co., LLC., Petitioner-Landlord,
against
Laura Montgomery, Respondent-Tenant.
1517-06
Nancy J. Marrone, Of Counsel
Legal Services of the Hudson Valley
Attorney for Respondent
30 South Broadway, 6th Floor
Yonkers, New York 10701
Gary Kavalick, Esq.
Gutman, Mintz, Baker & Sonnenfeldt, P.C.
Attorney for Petitioner
813 Jericho Turnpike
New Hyde Park, New York 11040
Adam Seiden, J.
Petitioner brought this proceeding to evict respondent from her rented apartment at 230 South 7th Avenue, Unit 2C, Mt. Vernon, NY for non-payment of rent. The notice of petition and petition allege an October 2004 balance due of one hundred eleven dollars ($111.00) and non payment of four hundred thirteen dollars ($413.00) rent per month for November 2004 through March 2006. Motions to extend the non-payment date through June 2006 were granted.
During trial Petitioner established all requisite information and submitted as a business record a tenant ledger which showed all charges and payments on tenants account from 11/5/03 through 6/06. This document showed a current balance due of eight thousand two hundred twenty nine dollars ($8,229.00). The tenant ledger differs significantly from the petition and notice of petition with respect to the balance due on October 2004. The ledger shows two thousand eight hundred thirty eight dollars ($2,838.00) due and as stated the petition alleges one hundred eleven dollars ($111.00) due. The tenant shall be given the benefit of the inconsistency.
The complex in which respondent has lived was privatized. At that time respondents rent was four hundred thirteen dollars ($413.00). The rental was honored by the managing agent even though market rent was in excess of one thousand three hundred dollars ($1,300.00). The four hundred thirteen dollar ($413.00) rental was being paid by respondent and by a Social Services monthly shelter allowance of two hundred seventy one dollars ($271.00) paid as a result of respondents granddaughter Arlene (who received public assistance) being in the apartment with respondent. The shelter allowance ceased in December 2003. The respondent continued to pay rental as if the two hundred seventy one dollars ($271.00) was being paid by Social Services. Respondent's position is that the rent on her apartment should be thirty percent (30%) of household income, as it was prior to privatization. The resultant rent arrears was thereby created.
Respondent also argues that she was misled by "someone" at petitioners office. When the rent bills kept appearing with an ever increasing arrears she apparently was told by someone in the office "not to worry". Respondent could not identify the person she spoke with or their authority to bind the petitioner.
After hearing the testimony of the parties, reviewing exhibits, including the applicable [*2]lease I find that respondents affirmative defenses cannot be sustained. The previous lease entered into by the parties stated that the monthly rent was $413, and there was no agreement contained in that lease that petitioner was obligated to accept any portion of the $413 monthly rent from Social Services. What is left is to determine the amount of rental owed.
There is no issue raised with regard to the correctness petitioner's ledger which shows eight thousand two hundred twenty nine dollars ($8,229.00) due through June 2006. As previously stated, the respondent is entitled to the benefit of the contradiction between the pleading and the ledger. That would reduce the amount due by two thousand seven hundred twenty seven dollars ($2,727.00) to five thousand five hundred two dollars ($5,502.00)
Even that amount seems excessive in light of the facts of this proceeding. Petitioner failed to commence a proper proceeding for years while the arrears continued to grow. As a result we now have an elderly, disabled woman without a means of paying the sum due. As a result, for the purpose of a warrant of eviction I will only allow the rental history from 9/1/05 to be considered, which includes a period of six (6) months prior to commencement of the action.
Although there is no period of time after which rent automatically becomes stale, the general practice of the Second Department has been to disallow a possessory judgment based upon rent arrearage which is over six months old (28 Market Street Corp. v Gallo, NYLJ Jan. 20, 1998 P. 11, col. 2 (App. Term 2d Dept); Ludlow Street Development Corp. v Petty, 24 HCR 13A NYLJ 1/3/96 P. 30, col. 4 (City Ct Yonkers); 9-10 Alden Place v Chen, NYLJ Sept. 8, 1998 P. 21, col.1 (City Ct Mount Vernon)). Petitioner's claim for a possessory judgment for the months from November 2003 through August 2005 is barred by the stale rent doctrine (City of New York v Betancourt, 79 Misc 2d 907 (App. Term, 1st Dept 1974); Ludlow, supra).
For the purposes of a possessory judgment for which a warrant of eviction may be issued, however, from 9/05 through 6/06 the rental due was four thousand one hundred thirty dollars ($4,130.00). Petitioner's ledger shows payments through that period of one thousand three hundred twenty five dollars ($1,325.00). The balance due for that period is therefore two thousand eight hundred five dollars ($2,805.00).
Petitioner is granted a possessory judgment on the nonpayment petition against respondent in the amount of $2,805.00. The warrant of eviction shall be stayed for ten days from the date of this Order to permit the respondent to pay this amount of outstanding rent. Petitioner is also granted a money judgment in the amount of five thousand five hundred two dollars ($5,502.00) against respondent. Settle judgment.
The above constitutes the Decision and Order of the Court.
Dated:Mount Vernon, New York
July 26, 2006
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:
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.
