Town of Oyster Bay Hous. Auth. v Schwartz

[*1] Town of Oyster Bay Hous. Auth. v Schwartz 2009 NY Slip Op 51529(U) [24 Misc 3d 1220(A)] Decided on July 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
District Court of Nassau County, First District

Town of Oyster Bay Housing Authority, Petitioner(s)

against

Adam Schwartz, "JOHN DOE" and "JANE DOE," Respondent(s)



SP 001540/09



Jane C. Reinhardt, Esq., of Counsel, Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100; Deutsch, Tane, Waterman & Wurtzel, P.C., Attorney for Petitioner, 120 Broadway, Suite 948, New York, New York 10271-0040, 212-766-4000.

Scott Fairgrieve, J.

This summary proceeding was instituted by Petitioner-landlord, Town of Oyster Bay Housing Authority (hereinafter "TOBHA"), with the filing of a holdover petition on March 6, 2009 against Respondent-tenant, Adam Schwartz (hereinafter "Respondent"). Respondent was a tenant who initially resided at 101-11 Central Park Road in Plainview, New York, and then later relocated to an apartment (203-16 Oakley Avenue in Massapequa, New York) in another TOBHA complex upon authorization. In this proceeding, TOBHA is requesting possession of the said premises, rent for the month of February 2009 totaling $189.00, use and occupancy fees accrued since March 1, 2009 at the rate of $1,000.00 per month with interest, plus reasonable attorney's fees.

The Respondent moves this Court for an order dismissing the Petition pursuant to C.P.L.R. §404 and §3211 (a)(1), (2), and (5), upon the grounds that TOBHA reinstated the Respondent's lease by prosecuting a non-payment proceeding concerning rent that came due after the date of the purported termination of the parties' lease, which is October 17, 2008. Consequently, the Respondent also contends that demanding and accepting rent that comes due after the termination constitutes a waiver of the cause for termination.

TOBHA, however, opposes this motion, claiming that the Respondent's tenancy was not terminated until the notice dated January 29, 2009, which became effective on February 28, 2009; therefore, acceptance of rent for the November, December and January months was prior [*2]to the effective date of termination, and thus, did not vitiate the termination notice. In addition, TOBHA also argues that there can be no waiver of termination when the termination is based on conduct that jeopardizes the health, safety and welfare of other residents; moreover, waiver is a question of fact which cannot be determined summarily.

Upon a thorough review of the submitted documents and applicable case law, the Court accordingly concludes that the Respondent's contentions are without merit. Therefore, the respondent's motion to dismiss is denied.

Background History

The initial lease agreement between the Petitioner and Respondent was signed on February 1, 2001. However, after receiving numerous complaints about Respondent's alleged conduct from other tenants, TOBHA served the Respondent with a Notice of Termination of Tenancy on November 26, 2007. With the assistance of counsel thereafter, the parties entered into a Settlement Agreement in June 2008 which provided that Respondent be relocated to a different apartment within the TOBHA complex and that he would abide by the stipulations set forth in the agreement. The said agreement provided that Respondent must not impact the quiet and peaceful enjoyment of other tenants, including but not limited to, the following:

Mr. Schwartz will not bang on an his own apartment walls or doors of any other tenants, will not otherwise make any excessive noise disturbing the peaceful and quiet enjoyment of his neighbors, will not panhandle or solicit money from other tenants and will not engage in any criminal conduct on the property of TOBHA or involving any tenant or employee of TOBHA. (petitioner's affirmation in opposition exhibit 1).

The stipulation provided for an 18 month probationary period during which Respondent agreed not to engage in the above conduct. In consideration of the agreement, TOBHA agreed to withdraw its Notice of Termination of Tenancy of November 26, 2007 and allowed the Respondent the opportunity to remain a tenant of TOBHA pursuant to the aforementioned terms. Subsequently, the parties amended the initial lease agreement to incorporate the terms of the Settlement Agreement into the lease on June 19, 2008.

Shortly after the Respondents residency in the new apartment, TOBHA contends that the Respondent started to engage in similar conduct banned by the previously signed Settlement Agreement. Consequently, TOBHA, through its attorneys, issued another Notice of Termination and Notice to Vacate under cover dated September 17, 2008.

The Respondent exercised his right to a grievance hearing. The said hearing was held before Leonard M. Cascone, Esq, who upheld the termination and concluded that Respondent "breached the lease by disturbing the peaceful and quiet enjoyment of the other tenants." The decision was mailed to Respondent on January 2, 2009. The 30 days notice enforcing the termination and corresponding grievance decision was served on Respondent on January 29, 2009, effective February [*3]28, 2009. TOBHA asserts that at about the same time the grievance decision was mailed to the Respondent, but prior to the issuance of the final 30 days notice to vacate, it commenced a non-payment proceeding requesting payment for rent for November thru January. The rent payments for these months were paid by the Respondent on February 26, 2009—two days before the effective date. Therefore, TOBHA discontinued the non-payment proceeding. The Respondent, however, failed to vacate the said premises; thus, this holdover proceeding commenced on March 6, 2009.

Discussion

The Court concludes that (1) accepting the rent for the period of November thru January does not reinstate the Respondent's tenancy, (2) nor does it constitute a waiver of the cause of termination because the Respondent's behavior interfered with the peaceful and quiet enjoyment of other tenants in the building, (3) the doctrine of waiver cannot apply because intent to waive the cause of termination cannot be established nor inferred, and (4) there can be no waiver during a time period when the landlord could not have enforced the eviction.

First, TOBHA's demand and acceptance of rent from November thru January does not reinstate the Respondent's tenancy. Ordinarily in a holdover proceeding, once a landlord accepts rent from a tenant at the end of the lease term, the landlord, in effect, agrees to an extension of the lease by operation of law. (Cadim Stonehenge 56th St. Assoc. LP v. Blue, NYLJ, Aug. 29, 2000, at 22, col. 2 [App. Term 1st Dept]). However, contrary to the Respondent's contention, this rule does not apply to the case at bar. In the instant case, the Respondent voluntarily elected to go through the grievance procedure; therefore, the termination of his lease cannot be deemed effective until the after the hearing officer renders a decision on the grievance and a notice to vacate has been served upon the tenant. This requirement is clearly codified in VII of the Grievance Procedure (respondent's affirmation in reply exhibit C). The lease did not terminate until February 28, 2009, which is the effective date set by the January 29, 2009 notice to vacate. Furthermore, the January rent had already accrued because the lease agreement between both parties stipulated that the rent is payable on the 1st of each month (see "Dwelling Lease" respondent's affirmation in reply exhibit B), which was prior to the time the decision of the hearing officer was served and prior to the issuance of the notice to vacate. Accordingly, the demand of rent through January 2009 does not vitiate the holdover proceeding.

Second, the Court also finds that there can be no waiver for the cause of termination due to violations of the Settlement Agreement and inapplicability of the waiver doctrine to an issue concerning the safety and welfare of other tenants. Although TOBHA alleges that the Respondent was engaged in criminal activity, there is no evidence before the court to substantiate these allegations. However, as previously stated, it was the finding of the grievance hearing that the Respondent had disrupted the quiet and peaceful enjoyment of the other tenants residing in the building. Specifically, he credited the testimony of TOBHA's witnesses who swore that the Respondent "ha[d] been a nuisance since he moved in, that he repeatedly and continually slammed his door to shake their apartments and wake them from sleep, that he has engaged in loud arguments day and night with his girlfriend and has otherwise made them feel unsafe in their homes." [*4](petitioner's affirmation in opposition exhibit 3 at 3).

At the hearing, the Respondent attested to the validity of these claims, and also added that his girlfriend lived with him every weekend since June 2008 without first attaining permission from TOBHA as required by the lease (see 11(j), 14(e) of "Dwelling Lease" respondent's affirmation in reply exhibit B) and that customers frequently appeared at his apartment because he conducted his business from there. Upon the Respondent's own admissions, it is clear that the Respondent violated almost all of the provisions contained in the Settlement Agreement previously agreed upon, as well as the dwelling lease itself; therefore, a waiver of the cause of termination is not deemed appropriate and should not be applied to the instant case. Respondent's bad faith in violating the settlement agreement cannot justify a waiver against Petitioner in seeking amounts owed for the period in question.

Furthermore, Respondent's conduct cannot operate as a waiver so as to infringe on the rights of others to violate public policy. (Hudsonview Co. v. Jenkins, 169 Misc 2d 389 [Civil Ct NY Co 1996]). The Court in Hudsonview rejected the tenant's defense of waiver in an illegal use proceeding, holding that the conduct the tenant engaged in involved the protection of the safety and welfare of neighboring tenants and the community. (Id.). In the case at bar, the evidence suggests that the Respondents actions constituted a threat to the safety and welfare of other tenants, and therefore, the waiver doctrine would not be applicable.

Third, the waiver doctrine is inapplicable to the issue presented because intent cannot be properly established nor inferred to preclude TOBHA from continuing its proceeding against the Respondent. As succinctly stated in Jefpaul Garage Corp. v. Presbyterian Hosp. in City of New York (61 NY2d 442 [1984]), "[a] waiver is the voluntary abandonment or relinquishment of a known right. It is essentially a matter of intent which must be proved." In the case at bar, there is no evidence to demonstrate that the Respondent's tenancy was reinstated by the acceptance of rent owed for the period in question.

Moreover, the Jefpaul Garage Corp. case also states that, "[a waiver] may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in the lease when they have expressly agreed otherwise." (NY2d at 460). Here, the parties to this action both agreed to the stipulations set forth in the Settlement Agreement (which became a material part of the lease), and both had been represented by competent counsel throughout the proceeding. With the assertion that the stipulations had been fully explained to all parties (petitioner's affirmation in opposition exhibit 1 at 3), the Respondent was well aware that he was given a second chance to reside on TOBHA's premises only on a probationary basis, subject to his behavior and adherence with the conditions included in the Settlement Agreement. The parties here had mutually assented to the terms of the Settlement Agreement, understood its provisions, and accordingly signed the agreement with full knowledge of the consequences of non-compliance. Thus, for reasons as stated in Jefpaul v. Presbyterian Hosp. in New York, supra , a waiver cannot be inferred in the matter at hand because both parties had agreed to the provisions and expectations as set forth in the lease through the Settlement Agreement.

Lastly, the waiver doctrine is also inapplicable to the instant case because the Respondent requests that the doctrine be applied to a time period in which the landlord could not have enforced the eviction clause. It is settled law that "there is no waiver when the landlord accepts rent during a period when the landlord could not have enforced the provision." (Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, §4:337, 2002). This rule was also implemented by the Appellate Division in S.E. Nichols, Inc. v. American Shopping Centers, Inc., (115 AD2d 856 [3rd Dept 1986]). The court in that case held that acceptance of rent during a cure period or during the period when an injunction was pending did not constitute a waiver. This rule, when applied to the instant case, discredits the Respondent's claim of waiver.

In the case at bar, Article VII of the "Grievance Procedure" states,

The Authority shall not commence an eviction action in a State or local court until it has served a notice to vacate on the tenant; in no event shall the notice to vacate be issued prior to the decision of the hearing officer having been mailed or delivered to the complainant. (respondent's affirmation in reply exhibit C, part VII).

TOBHA strictly followed the regulations as set forth in the "Grievance Procedure" by mailing a notice to vacate only after the decision of the grievance officer was rendered and delivered to the Respondent, and then subsequently, proceeded with an eviction action. These actions took place between the months of December (month in which grievance hearing was held), January, and February. During this interval, TOBHA could not evict the Respondent. Pursuant to the "Grievance Procedure," TOBHA was required to suspend an eviction proceeding until after the decision of the hearing officer was delivered to the Respondent and a notice to vacate was served. These indispensable requirements were not fulfilled until January 29, 2009, when the notice to vacate was served upon the Respondent, and not effectuated until February 28, 2009. Therefore, contrary to Respondent's argument, a waiver cannot apply to the time period in question.

Conclusion

In view of the foregoing, Respondent's motion to dismiss is denied. The Petitioner is granted a judgment of possession with the warrant stayed until September 30, 2009.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 16, 2009

CC:Nassau/Suffolk Law Services Committee, Inc.

Deutsch, Tane, Waterman & Wurtzel, P.C. [*5]

SF/sb