127th St. Cluster, LP v Brown

[*1] 127th St. Cluster, LP v Brown 2009 NY Slip Op 51243(U) [24 Misc 3d 1203(A)] Decided on June 10, 2009 Civil Court Of The City Of New York, New York County Martino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2009
Civil Court of the City of New York, New York County

127th Street Cluster, LP, Petitioner,

against

Pamela Brown, JOHN DOE and JANE DOE, Respondents.



250456/09



Petitioner: Thomas S. Fleishell & Associates, P.C. by Thomas S. Fleishell, Esq.

Respondent: DC 37 Municipal Employees Legal Services, by Liam Duffett, of Counsel

Ruben A. Martino, J.

Petitioner commenced this summary holdover proceeding against respondent for chronic rent delinquency claiming such delinquency created a nuisance, and alternatively, failed to comply with a substantial obligation of the leasehold. Respondent moves to dismiss this holdover proceeding pursuant to CPLR 3211, petitioner's failure to state a cause of action, and other related relief. Based on respondent's Order to Show Cause (1), petitioner's Affirmation in Opposition (2), and respondent's Affirmation in Reply (3), this Court decides as follows.

FACTS

Landlord seeks possession of the stabilized apartment premises on the grounds that the tenant committed a nuisance and failed to comply with a substantial obligation of the tenancy by repeatedly tendering rent late, compelling landlord to commence four nonpayment proceedings and one holdover proceeding from 2002 through 2007. These proceedings were to recover rent which had accrued over the period of approximately five years. The outcome of the first nonpayment proceeding from 2002 is unclear because the court file was unavailable for review (Index No. 253185/02). The second and third nonpayment proceedings from 2005 and 2006 were settled by stipulations (Index #s 251746/05 and 252521/06), which both listed repair issues [*2]in the apartment that petitioner was to fix. The fourth nonpayment proceeding from 2007 was filed (Index # 252506/07), but then dismissed without prejudice because it was incorporated into the one holdover case from 2007 (Index # 252814/07). That prior holdover proceeding was also ultimately settled by stipulation, again listing repair problems.

NUISANCEThe first issue raised is whether petitioner has alleged appropriate facts showing respondent's conduct in failing to pay rent when due created a nuisance actionable by eviction. In order to establish that chronic nonpayment of rent constitutes a nuisance, a landlord must prove that he/she "was compelled to bring numerous nonpayment proceedings within a relatively short period and that the tenant's nonpayment was willful, unjustified, without explanation, or accompanied by an intent to harass the landlord" (25th Realty Assoc. v Griggs, 150 AD2d 155, 156 [1st Dept 1989]). The landlord must also show that such nonpayment interfered with the landlord's use or enjoyment of the property (Sharp v Norwood, 89 NY2d 1068, 1069 [1997]).

In the instant case, the respondent's pattern of late rental payments is insufficient to state a nuisance cause of action. Despite petitioner's claim that the prior legal proceedings brought against the respondent affected the landlord's fiscal interest in the building, this does not rise to the level of actionable nuisance behavior (see Century Apartments Assoc. v Postel, NYLJ, Jun. 3, 1997, at 25, col 2 [App Term, 1st Dept] [nonpayment or late payment of rent , in and of itself, is not conduct which causes damage to the housing accommodation or which threatens the comfort or safety of the owner or other tenants]). Petitioner has failed to offer any facts that would establish actual interference with use or enjoyment of the property. Additionally, while the

Court of Appeals, as stated in Sharp v Norwood, has not decided whether chronic late payment or nonpayment of rent when combined with aggravating circumstances could support an eviction proceeding for "nuisance," the petitioner here has failed to allege any explicit facts showing the presence of aggravated circumstances (see Carol Management Corp. v Mendoza, 197 AD2d 687 [2d Dept 1993]; see also Wonforo Assoc. v Maloof, 2002 NY Slip Op 50316 [U], *11-15 [Civ Ct, New York County]).

Because petitioner has failed to allege explicit facts showing interference with use or enjoyment or showing the presence of aggravated circumstances, the part of this eviction proceeding premised upon nuisance is improper. Therefore, petitioner has failed to state a cause of action under a nuisance theory and, with respect to this part of petitioner's claim, respondent's motion for dismissal is granted.

SUBSTANTIAL OBLIGATION

The next issue this Court must resolve is whether petitioner has made a sufficient prima facie showing that respondent's conduct constitutes a violation of a substantial obligation of the tenancy. Respondent argues that because the five prior legal proceedings relied on by petitioner were either (1) settled by stipulations containing repair issues, (2) had answers where the respondent asserted defenses such as repair conditions, or (3) settled in a prior action, the petitioner cannot classify the respondent as chronically delinquent and the petition should be dismissed.

Respondent is correct that out of the five legal proceedings relied on by petitioner in bringing this action, three should be barred from consideration based on res judicata (specifically Index #s: 253185/02; 251746/05; 252521/06). Since those three cases were listed and previously [*3]ruled on in the prior 2007 holdover case for chronic rent delinquency (Index # 252814/07), which was settled by stipulation, the petitioner is prohibited from re-litigating and including these cases in the instant proceeding. Petitioner counters, however, that res judicata cannot be a defense in this action because (1) the prior holdover case was erroneously settled and (2) the underlying issues in the holdover proceeding were never addressed. This Court is not persuaded by petitioner's arguments.

As to petitioner's first argument, the attorney from the 2007 holdover proceeding has included a signed affidavit that he mistakenly believed he was settling the concurrent 2007 nonpayment case and not the holdover case. While the Court recognizes that two cases were being tried at the same time and that the language of the stipulation addresses common nonpayment issues, petitioner has never attempted to vacate the agreement, yet has had over 12 months to do so. Additionally, the fact that the language of the stipulation included rent arrears is not definitive enough to prove that this stipulation was meant to solely settle the nonpayment case.

Petitioner's second argument — that the underlying issues of the holdover proceeding were never addressed and therefore should not be precluded in the instant action — is also without merit. The settlement stipulation from the 2007 holdover case is for a final judgment.

Generally, res judicata provides that "as to parties in a litigation and those in privity with them, a [final] judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Elmwood Estates LLC v Rosner, NYLJ, Jul. 20, 2005, at 13 [Civ Ct, Bronx County]). It is well established that the principles of res judicata not only apply to judgments obtained after a trial, but also to issues settled by stipulation unless the stipulation contains some reservation of right. (Id.) Since the 2007 stipulation did not contain a reservation of right, it is binding on all the parties. Therefore, the stipulation settling the 2007 holdover has a preclusive effect and bars the petitioner from re-litigating the same issues and claims in this action.

The petitioner's instant action is based largely on the same allegations and facts included in the first holdover proceeding, and lists three nonpayment proceedings that were contained in the 2007 case. The only additions to the instant action's Notice of Termination are the 2007 nonpayment case, which was dismissed without prejudice, and the 2007 holdover case. Since

the petitioner's reliance on the facts contained in the prior chronic nonpayment holdover may not be used as a predicate in the instant action to terminate her tenancy, the only evidence available to petitioner to make out that the respondent violated a substantial obligation of her tenancy are the two 2007 cases and the tenant's payment history.

In order to prevail under a substantial obligation theory, a landlord must establish that he was required to commence frequent nonpayment proceedings in a relatively short period of time (see Adams Tower LP v Richter, 186 Misc 2d 620, 621-622 [App Term, 1st Dept 2000]). After parsing out the claims that are barred from res judicata, the Court finds that petitioner has failed to state a cause of action because he can only rely on the nonpayment and holdover proceedings from 2007. Petitioner may argue that having to bring two legal proceedings in a one-year period is a sufficient showing. However, the number and frequency of nonpayment proceedings is not the only inquiry a court can make when determining whether a substantial obligation has been violated since "the number of nonpayment actions commenced is relevant only in the context of [*4]the entire circumstances surrounding the alleged withholding of rent" (Greene v Stone, 160 AD2d 367, 367 [1st Dept 1990]). Considering that the 2007 nonpayment case was not pursued, that the 2007 holdover case was settled, that the 2007 holdover stipulation listed repairs, and that there is no showing that the respondent has failed to comply with terms of the 2007 holdover stipulation, petitioner has failed to allege enough facts to show respondent has substantially violated a material obligation of her tenancy.

CONCLUSION

Based on the above, petitioner has failed to state a cause of action both under a nuisance theory and under a theory of substantial obligation. Therefore, respondent's motion to dismiss the petition is granted. This constitutes the order of the Court.

_______________________________

Hon. Ruben A. Martino

Acting Supreme Court Justice

June 10, 2009

Harlem, New York