Leva v Kramer

[*1] Leva v Kramer 2009 NY Slip Op 51439(U) [24 Misc 3d 1213(A)] Decided on July 7, 2009 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2009
District Court of Nassau County, First District

Clorinda Leva, Petitioner,

against

Gail Kramer, Respondent.



SP 002792/09



Mark Markowitz, Esq., of Counsel,Volunteer Lawyers Project, Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100; Gerard DeGregoris, Jr., Esq., Attorney for Petitioner, 145 Willis Avenue, Mineola, New York 11501, 516-877-7900.

Scott Fairgrieve, J.

Respondent, GAIL KRAMER, moves for an order pursuant to CPLR 3211 (a) dismissing the non-payment proceedings on the grounds that the action may not be maintained because of the illegality of the apartment and because the pleading fails to state a cause of action. Petitioner opposes Respondent's motion asking for possession and a money judgment.

This non-payment proceeding was instituted by service of a Notice of Petition and Petition by personal delivery to the Respondent on April 21, 2009. (See Exhibit B of the Affidavit in Support). The Petition was returnable on May 18th, 2009. On May 19th, 2009 the Respondent submitted this motion to the court.

On September 15th, 2006, the Respondent and her husband entered into a lease agreement for the use of the second floor of a house located at 1194 East Broadway in Hewlett. The house was originally owned by Leva Bros. Concrete Corp., then transferred to Antonio Leva and subsequently deeded to Clorinda Leva, the Petitioner. The first floor was rented to Rita Kaplan, who is not related to any of the parties. In 2008, the Respondent was divorced and her husband vacated leaving just her and her children in the second floor apartment. The certificate of occupancy shows that the Town of Hempstead designated the landlord's property as a "two- story one family dwelling." (See Exhibit D of the Affidavit in Support). The Respondent argues that since two apartments are located in the one family residence, the lease agreement is illegal and the action must be dismissed. Respondent is still currently residing at the premises in question.

The Petitioner does not deny that the property is being used illegally nor does she deny representing to the Respondent that the house was a legal two family [*2]residence. Since Petitioner failed to contest the truth of these statements, they are considered admissions. In Kuehne & Nagel, Inc. v. Baide, (36 NY2d 539, 330 NE2d 624) the court stated: "facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted." These admissions demonstrate that there was fraud in the execution of the lease.

The landlord fraudulently misrepresented a material fact to the tenant before the lease was signed. Fraud committed by the Petitioner bars any claims for monetary damages. See Gramercy Equities Corp. v. Dumont, 72 NY2d 560, 369 NYS2d 667 (1975); Insurance Company of North America v. Kaplun, 274 AD2d 293, 713 NYS2d 214, (2nd Dept, 2000); Elisco Manufacturing Corp. v. Associated Transport Inc., 37 Misc 2d 87, 232 NYS2d 750, (Kings Sup. Ct., 1962); Criveau v. Conlon, 6 Misc 3d 1016 (A), 2005 WL 236435 (NY Dist. Ct.); 74 NY Jur.2d, Landlord and Tenant § 348; 23 NY Jur.2d, Contribution, Etc. § 2. It is well established that "parties to an illegal contract cannot use the courts to help them carry out their illegal objects and schemes." (Criveau at 5). Rent will not be awarded where the landlord has created an illegal situation based upon fraud:

This Court refuses to award plaintiff any rent or any other damages caused by to the premises. The plaintiff set up the illegal situation by willfully violating the Town of Hempstead zoning code and lying to the Town about the mother/ daughter status of the premises. This Court refuses to grant rent or use and occupancy to landlords who openly and notoriously violate laws. (Criveau at 5).

Fraud on the part of the landlord renders the lease voidable on the part of the tenant (74 NY Jur. 2d, Landlord and Tenant § 45). A landlord should not be economically protected against fraud. Allowing the Petitioner to recover rent in this matter would be rewarding illegal conduct.

By misrepresenting that the home was a legal two family unit, the landlord has breached the implied warranty of quiet enjoyment. Paragraph 26 of the lease states that the "tenant may peaceably and quietly, have, hold, and enjoy the Premises for the Term of this Lease." (See Exhibit A in the Affidavit of Support). In this case the Petitioner breached Paragraph 26 by renting the Respondent an illegal apartment and representing the same to be legal. See Cater v. Saunders (2002 WL 31207219) holding rent is not recoverable in this situation:

This court rules that the petitioner is barred from collecting rent on an apartment,

which was leased in contravention of the Town of Hempstead Building Code, and

due to breach of Paragraph 25 of the Lease which violates the expressed contractual warranty of quiet enjoyment and habitability. (Cater at 1).

The motion to dismiss pursuant to CPLR 3211 (a) is granted. The Petitioner may recover possession of the premises in question but the court declines to award any rent for the arrears set forth herein. The parties are directed to appear for a conference/ trial Wednesday July 15th, 2009 at 9:30 a.m..

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 7, 2009

CC:Nassau/Suffolk Law Services Committee, Inc.

Gerard Degregoris, Jr., Esq.

SF/kf