Lenn Prop. LLC v Liberman

[*1] Lenn Prop. LLC v Liberman 2009 NY Slip Op 51805(U) [24 Misc 3d 1239(A)] Decided on August 19, 2009 District Court Of Nassau County, First District Bruno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2009
District Court of Nassau County, First District

Lenn Property LLC, Petitioner,

against

David Liberman, Respondent.



SP 3568/09



DePinto, Nornes & Associates, LLP, Attorney for Petitioner

445 Broad Hollow Road

Melville, New York 11747

Jeffrey A. Seigel, Esq., Attorney for Respondent

One Helen Keller Way

Hempstead, New York 11550

Robert A. Bruno, J.

On or about June 15, 2009 the Petitioner-Landlord, Lenn Property LLC ("Landlord") commenced a non-payment proceeding against Respondent-Tenant, David Liberman ("Tenant") to recover the sum of nine thousand nine hundred ($9,900.00) dollars in rent arrears. The parties have stipulated that the unpaid portion of the rent in the amount of nine thousand nine hundred ($9,900.00) dollars is accurate. The Tenant has asserted the defense of breach of warranty of habitability as to the non-payment of rent.

In addition to the Tenant's warranty of habitability defense, the Tenant has also made a motion to dismiss the petition (i) for lack of subject matter jurisdiction pursuant to CPLR §404 and § 3211(a)(2) because Landlord failed to put its address on the notice of petition as required by U.D.C.A. §401, 22 N.Y.C.R.R. §212.1, 212.6 and 212.42 and (ii) because the summary proceeding was initiated by the purported agent of Landlord, rather than the Landlord, in violation of R.P.A.P.L. §721.

BACKGROUND

The parties acknowledge that the Tenant took possession of the premises known as 31 Lenox Road, Apartment 2D, Rockville Centre, NY 11570 ("Premises") at the end of August 2007, with rent commencing in September 2007.

There was testimony that when Tenant first took possession of the Premises, he was presented with a lease, however, a fully executed lease was never produced and in any event the lease, whether or not it was ever executed, the parties have agreed that the lease has since long expired and the tenancy continued as a month-to-month tenancy. In addition to the foregoing, since the parties have already stipulated as to the amount of the unpaid rent, the only substantive issue before this Court is whether the Landlord breached the warranty of the habitability which is implicit [*2]in every lease whether oral or written. (Real Property Law §235-b.) Therefore, the existence of what purported to be a lease is not required regarding this issue.

The Tenant had testified that since the day he moved into the Premises, there was a problem with the paint on the walls either peeling or forming a bubble, the window frame was in bad shape, the toilet was held in place by only 2 bolts[FN1], the ceiling had a crack mark in it, the bathroom tub and sink had rust marks around the drain that necessitated the Tenant to clean the drains and other minor maintenance items that are contained in Respondent's Exhibit "C".

DISCUSSION

PETITION IN NAME OF LANDLORD

The Tenant's first procedural defense is that the petition was brought in the name of Louis Devito, the purported agent of Lenn Property, LLC and not Lenn Property, LLC itself. The first line of the petition states: "The Petition of Louis DeVito, the agent for owner/landlord of the premises shows that:". In support of its motion, the Tenant cites one case, Ferro v. Lawrence, 195 Misc 2d 529, 285 NYS2d, 460 (App. Term - 2nd Dept. 2002) which states, "A landlord's attorney/agent is not a person authorized to initiate a summary proceeding in his or her own name ...".

In the instant action, the caption of the Petition and Notice of Petition clearly state that Lenn Property, LLC is the Petitioner. The contents of the Notice of Petition clearly states, ... on the annexed Petition of Lenn Property, LLC, Landlord, which prays for a final judgment of eviction, awarding to Petitioner the possession of the premises ...".

The Tenant's reliance on Ferro, supra , is misplaced. Here, the Landlord did institute the summary proceeding in its own name. The one sentence in the body of the Petition which states that Louis DeVito is the agent of the owner/landlord does not alter the fact that the Landlord is the petitioner and the instant action was brought in the name of the Landlord, the proper party. Also, in Ferro, supra , that action involved an individual petitioner while the instant action involves a limited liability company and Mr. DeVito testified he acted as the Manager or Managing Agent for the Landlord, limited liability company and the Tenant has failed to prove Louis DeVito was not authorized to act on behalf of the Landlord.

In a similar case, Gamliali v. Tower of David, 94 Misc 2d 763, 405 NYS2d 570 (Civ. Ct. Kings Co. 1978), the caption of the petition named the landlord "by" his attorney. Its preamble read, "The petition of Moshe Gamliali by Herbert M. Feinsod respectfully shows that:". The court held in relevant part at page 764:

The landlord is thus designated as the petitioner albeit with a further statement that he is acting through another. This sufficiently places the petition under RPAPL § 721(1) as one brought [*3]by the landlord not the attorney. Heritage Realty Corp. V. Heard, 77 Misc 2d 72, 353 NYS2d 282 (Civil Ct., NY 1973); Lee v. Parchini, 82 Misc 2d 843, 370 NYS2d 843, 370 NYS2d 401 (Dist. Ct., Nassau, 1975)); cf. 300 West Realty Co. v. Wood, 69 Misc 2d 580, 330 NYS2d 524 (Civil Court, NY, 1971) aff'd no opinion 69 Misc 2d 582, 330 NYS2d 527 (App.T. 1st Dept. 1972).

No claim of confusion, prejudice or deception of respondent appears in the papers nor is any apparent to the Court. The presence in the caption and preamble of a reference to petitioner's representative is therefore mere surplusage.

In Rhodes v. Shankle, 137 Misc 2d 1076, 523 NYS2d 714 (Dist. Ct. Nassau 1987), a case almost identical to the instant action, the caption of the petition and notice of petition indicated that William Rhodes was the owner and landlord of the premises and the party authorized to maintain a proceeding to recover the real property. However, the body of the petition, similar to the action herein, stated, "Anthony Rhodes, agent of William Rhodes" and is also signed by Anthony Rhodes.

The Court, quoting from Gamliali, supra , held at page 1077:

"[Former] [s]ubdivision 8 of section 721 of the Real Property Actions and Proceedings Law [which permitted an attorney or other specified representative of the landlord to bring an eviction proceeding] was repealed because it resulted in confused judgments which did not name the real party in interest and because the interposition of counterclaims was cumbersome (citations omitted)." Here, the evil sought to be guarded against by the 1977 amendment is not present. The owner and landlord William Rhodes, the party in interest, is clearly identified as such. The real problem here is perhaps an inversion occurring in draftmanship. It is clear that if the petition read, "The petition of William Rhodes by Anthony Rhodes, his agent ..." there would be no problem. The Court does not believe such an apparently inadvertent inversion of language should be the basis of dismissing the petition, so long as it is clear, as it is here, that the petitioner is William Rhodes, a party authorized to maintain the proceeding. To decide otherwise in this case, on the particular facts here present, would glorify form over substance.

Also, see Barstow Road Owners v. Billing, 179 Misc 2d 958, 687 NYS2d 845 (Dist. Ct. Nassau 1998).

In addition to the foregoing, in the instant action, the Tenant had testified that he placed over a dozen phone calls to Marisa DeVito regarding the condition of the premises because he was told by all the other tenants that "she ran the building." The Tenant also testified that Marisa DeVito was related to Louis DeVito (her husband). The Tenant further testified that he sent all rent checks to P.O. Box 127. As it turns out, Respondent's Exhibit "G" is a letter from Marisa DeVito to the Tenant regarding the failure to pay rent for several months. The address on the letterhead for Mrs. DeVito is "Lenn Property, LLC, P.O. Box 127 ...". Clearly, Tenant knew the DeVito's managed the Premises as the Landlord's agent. The P.O. Box 127 was set up by Mr. DeVito. Mr. DeVito testified he signed all leases including the original lease in this action as, "Louis DeVito for Lenn Property, LLC.".

Finally, Louis DeVito testified that he is the CPA and has acted as counsel for the Landlord, [*4]collects all the rents and makes all the deposits and all rent is sent to his P.O. Box 127. In addition to the foregoing, as part of Landlord's opposition papers to Tenant's motion, the Landlord submitted a printout from the N.Y.S. Department of State website which list Louis DeVito as the registered agent of Landlord for service of process. It appears that Louis DeVito acted in the capacity as managing agent for Landlord and the Tenant by his own admission has acknowledge as much. It should also be noted that the Tenant never claims he was mislead or prejudiced by the language contained in the Petition or that he didn't know that the DeVito's managed the Premises on behalf of the Landlord.

PETITIONER'S ADDRESS

Notwithstanding the fact that the Tenant has failed to submit any case law that substantiates his position this Court finds that based upon the credible testimony of Louis DeVito, who testified at length that he acted in the capacity as the manager or the managing agent for the Petitioner, and was also the Petitioner's C.P.A., registered agent for service of process and at times counsel for Petitioner and also a member of the firm that has appeared as counsel of record in the instant action, this Court finds that Louis DeVito's business address on the Notice of Petition also serves as Petitioner's address, especially in light of the fact that Tenant had intimate knowledge of the DeVito's role in managing the Premises and also the fact that Mr. DeVito is Landlord's registered agent for service of process. Additionally there is simply no allegations that the Tenant was mislead, confused or prejudicial regarding the address used. In addition to the foregoing R.P.A.P.L. 741 does not require the Petition to list its address in the Notice of Petition.

Assuming arguendo, that the Landlord did not include its address in the Notice of Petition, this Court is aware of only two (2) Appellate Term cases that have dealt with the same issue pursuant to section 401(b) of the New York City Civil Court Act and in both of those cases the Appellate Term determined that the omission of plaintiff's address was a mere irregularity which did not divest the court of its jurisdiction (Malik v. Cukrowski, 172 Misc 2d 360, 659 NYS2d 176 (Civ. Ct. Queens County 1997) and Hober v. Reikert, 97 Misc 2d 637, 162 NYS2d 328 (App. Term, 1st Dept. 1997).

BREACH OF WARRANT OF HABITABILITY

It is well settled that a residential tenant may recover damages the tenant incurs as a result of the landlord's breach of warrant of habitability. (See, Suarez v. Rivercross Tenant's Corp., 107 Misc 2d 135, 438 NYS2d 164 (App. Term 1st Dept. 1981)).

Notwithstanding the foregoing, there is no litmus test in determining the measure of damages the tenant has sustained, assuming a breach, or in determining whether the warranty of habitability has in fact been breached. As stated in 2 Dolan, Rasch's Landlord and Tenant Summary Proceedings §18:7, at 36 [4th ed.]. "Each case must turn on its own peculiar facts."

While acknowledging it is impossible to attempt to list every instance in which a warranty may be breached, Rasch's, list, some of the more common instances, such as: air-conditioning (Whitehouse Estates, Inc. v. Thomson, 87 Misc 2d 813, 386 NYS2d 733 (City Civ. Ct. 1976), heat or hot water complaints (Parkers72nd Associates v. Isaacs, 109 Misc 2d 57, 436 NYS2d 542 (City [*5]Civ. Ct. 1980); Century Apartments, Inc. v. Yalkowsky, 106 Misc 2d 762, 435 NYS2d 627 (City Civ. Ct. 1980)), light and ventilation complaints (Sutton Fifty-Six Co. v. Fridecky, 93 AD2d 720, 461 NYS2d 14 (1st Dept. 1983), odor complaints (Kekllas v. Saddy, 88 Misc 2d 1042, 389 NYS2d 756 (Dist. Ct. 1976), plumbing complaints such as flooding or leaking (Century Apartments, Inc. v. Yalkowsky, 106 Misc 2d 762, 435 NYS2d 627 (City Civ. Ct. 1980); McBride v. 218 E. 70th Street Associates, 102 Misc 2d 279, 425 NYS2d 910 (App. Term 1979)), stove complaints (Whitehouse Estates, Inc. v. Thomson, 87 Misc 2d 813, 386 NYS2d 733 (City Civ. Ct. 1976), vermin complaints (Town of Islip Community Development Agency v. Mulligan, 130 Misc 2d 279, 496 NYS2d 195 (Dist. Ct. 1985) and the like, that render the Premises not fit for human habitation.

In the instant action, the Tenant testified that the majority of the problems within the Premises were regarding paint chips and bubbles, rust around the drains in the bathroom sink and tub, some damaged wood around the window sill and kitchen sink and other similar items enumerated in Respondent's Exhibit "C".

Notwithstanding Tenant's testimony that the above conditions at the Premises existed since that date Tenant moved in, which was some time in late August 2007, the Tenant for the first time sent written notice to the Landlord on April 17, 2009, over a year and a half after Tenant took possession complaining of the conditions. When the Tenant was asked on cross-examination why he waited so long to notify the Landlord, the Tenant responded that he had placed over a dozen phone calls to Marisa Devito during this period of time, which calls were never returned and then one day he found a letter in his mail box from another tenant, which was not signed, contained no address where it came from or who it was addressed to urging him to write a letter complaining of the conditions of his apartment, which the Tenant did on April 17, 2009 (Exhibit "C").

For reasons not fully explained to the Court, Tenant's letter dated April 17, 2009 was sent to the attention of "To whom It May Concern". The Tenant did not offer any proof of mailing and had no idea if his letter was ever received. The Tenant further testified that during the first eighteen (18) months he occupied the Premises, he did not send any written notice to the Town Housing Department that the items complained of at the Premises were not repaired, even though these conditions existed from the first day Tenant took possession. On cross-examination, the Tenant testified that none of the problems he had complained about in the Premises prevented him from living there. The only item the Tenant complained of was having to clean the rust stains.

Even if this Court were to find the testimony of the Tenant as credible, which this Court does not, the items that the Tenant complained of, while they may be annoying, seem to be minor maintenance items that are easily repairable and do not prevent habitation.

In addition to the foregoing, the Tenant's testimony during cross-examination, that the problems complained of did not prevent his habitation in the Premises, coupled with the Tenant's first written notice, "To Whom It May Concern" eighteen (18) months after Tenant took possession stretchers the boundaries of credibility. [*6]

Therefore, based upon the foregoing this Court rejects Tenant's defense that the Landlord breached its warranty of habitability.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby ordered that the motion of the Respondent to dismiss the instant action is denied and it is further ordered that the Petitioner is granted a judgment of possession, a warrant of eviction and a judgment in the amount of nine thousand nine hundred ($9,900.00) dollars.

This constitutes the decision and order of the Court. SO ORDERED:

DISTRICT COURT JUDGE

Dated: August 19, 2009

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Footnotes

Footnote 1: The Court has taken judicial notice of the fact that most toilets have only 2 bolts.