Putnam Realty Assoc. LLC v Piggott

[*1] Putnam Realty Assoc. LLC v Piggott 2012 NY Slip Op 50281(U) Decided on January 19, 2012 Civil Court Of The City Of New York, Kings County Sikowitz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2012
Civil Court of the City of New York, Kings County

Putnam Realty Associates LLC, Petitioner,

against

Matthew Piggott, Respondent.



083171/2011



Petitioner's attorney:Vicki Gail Price, Esq.

Respondent's attorney: South Brooklyn Legal Services

Marcia J. Sikowitz, J.

RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.

PAPERSNUMBERED

NOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT

ANNEXED............................................................................................1-3

ANSWERING AFFIRMATION AND AFFIDAVIT ANNEXED......13-14-

REPLYING AFFIRMATION................................................................18-

EXHIBITS.............................................................................................-4-12;15-17;

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

Petitioner commenced this summary nonpayment proceeding to recover possession of the subject rent stabilized apartment No.11, located at 186 Prospect Place, Brooklyn, New York. The petition demands $7591.86 in rent representing a balance of $583.98 for August 2010, and $583.99 each month for the period June 2010 through and including July 2011. Petitioner appears by counsel. Respondent initially appeared pro se and filed a written answer, but subsequently appeared by counsel on the first adjourn date.

The respondent moves by Notice of Motion for an order granting him leave to serve an amended answer and deeming that answer served and filed nunc pro tunc, as well as for an order granting him summary judgment and dismissing the underlying summary nonpayment petition. The petitioner opposes the motion in its entirety.

[*2]The Undisputed Facts

The prior tenant of record, Willie May Rogers, passed away on November 4, 2009. The last lease Ms. Rogers entered into before she died expired on May 31, 2010. After Ms. Rogers died the petitioner commenced a licensee holdover proceeding under L & T index 77480/2010 against the respondent, who is Ms. Rogers' great grandson. Pursuant to the decision and order after trial of the Honorable John Lansden, dated February 25, 2011 [FN1], the holdover proceeding was dismissed. The trial court found that respondent successfully proved his affirmative defense that he was entitled to succeed to the rent stabilized tenancy of Willie May Rogers.

The petitioner subsequently sent the respondent a lease renewal offer. The petitioner's lease renewal offer was dated April 21, 2011 and was to commence on June 1, 2010. This commencement date in the lease offered by petitioner was one day after the expiration of the deceased tenant of record's lease which expired on May 31, 2010. The respondent notified the petitioner's attorney by letter dated May 12, 2011 that he objected to the June 1, 2010 lease commencement date based on its noncompliance with Rent Stabilization Code (RSC) 2523.5( c ) (1). Petitioner's lease renewal offer commencing June 1, 2010 was returned unsigned, and respondent forwarded a proposed renewal lease commencing on August 1, 2011 which he signed, along with an explanation that he had chosen a commencement date of August 1, 2011 with increases in effect at that time "...which is 90 days (plus about 10) from the date the lease was offered, rather than having it commence on the date that it would have had the offer been timely..."[FN2]

Petitioner notified respondent that the landlord refused to sign the respondent's proposed renewal lease form. Petitioner objected to the commencement date, and stated that respondent failed to provide two originals of the renewal lease. Petitioner further advised the respondent that the section of the rent stabilization code the respondent was relying on was inapplicable to the particular situation presented [FN3].

The petitioner then commenced the underlying nonpayment proceeding.

The instant motion:

Respondent argues that the petitioner cannot maintain this proceeding because there is no explicit or implicit agreement between the parties that obligates him to pay rent. The respondent states [*3]that the landlord chose not to recognize him as a successor tenant and failed to offer him a proper renewal lease upon expiration of his deceased great grandmother's lease. Instead of offering respondent a renewal lease upon the expiration of the deceased tenant's term, petitioner tried to evict him by commencing a licensee holdover proceeding against him. Respondent argues that the petitioner cannot maintain this proceeding and avail itself of the remedy of a nonpayment proceeding to collect rent from the successor tenant from the date of the expiration of the deceased tenant's lease period. Respondent argues that the landlord is not entitled to seek a possessory judgment for rent arrears for the period of time petitioner refused to acknowledge respondent's succession rights and offer him a renewal lease.

If petitioner had properly offered respondent a renewal lease in his name at the expiration of the prior tenant's lease, there would have been a landlord tenant relationship, and an obligation by respondent to pay rent. Under those circumstances, petitioner would have had a cause of action for non payment of rent. Respondent contends that the petitioner failed to avail itself of its remedies regarding use and occupancy during the pendency of the holdover case, and can pursue its claims for use and occupancy in small claims or civil court. The respondent contends that whether or not he is liable for unpaid use and occupancy, the remedy is not eviction, but a plenary action in civil or small claims court.

The respondent contends that after the licensee holdover proceeding against him was dismissed after trial, he was found to have succeeded to his great grandmother's rent stabilized tenancy. The petitioner still failed to tender him a valid renewal lease. Respondent argues that the renewal lease the petitioner offered, dated April 21, 2011, was invalid, as it purported to commence the day after his deceased great grandmother's lease expired. This date, April 21, 2011, was a date prior to petitioner's commencement of its unsuccessful licensee holdover proceeding against him. Respondent argues that he rejected petitioner's invalid lease renewal offer, and offered his own, signed renewal lease commencing August 1, 2011. However, as of the date of the motion submission, neither he nor his attorney have ever received a countersigned copy of that lease from the petitioner.

Petitioner argues in opposition that the respondent should not be permitted to file an amended answer as his attorney's affirmation does not state a reason as to why he did not initially put in an answer on behalf of the respondent. Appended to petitioner's opposition is an affidavit from petitioner's managing agent Debra Cooper. Ms. Cooper attests that she has never received any notice of repairs from the respondent or his attorney. Ms. Cooper also attests her attorney informed her that the payment of rent for the balance of the lease term after Ms. Rogers died is the responsibility of her estate, and the petitioner has never received rent for that period from November 1, 2009 through May 31, 2010 totaling $4108.93. Ms. Cooper states that the respondent paid one month's use and occupancy in August 2010. Respondent failed to pay U & O pursuant to a September 12, 2011 stipulation that obligated him to pay use and occupancy for September and October 2011.

Petitioner argues that paragraph 28 of the original lease between the petitioner's predecessor and [*4]the now deceased Willie Mae Rogers does obligate the respondent to pay rent, as it states: "This Lease is binding on Landlord and Tenant and their heirs, distributees, executors, administrators, successors and lawful assigns"[FN4]. Petitioner contends the respondent's rights and obligations including payment of rent, took effect upon Willie May Rogers' death and thus the renewal lease the petitioner offered to the respondent commencing June 1, 2010 is correct as it commences immediately after Ms. Rogers' last renewal lease expired on May 31, 2010.

Petitioner further contends that RSC section 2523.5( c )(1) is inapplicable to the situation herein. Petitioner argues that RSC Section 2523.5 ( c )(1) makes reference to RSC Section 2523.5(a) which states it applies to the tenant named in the expiring lease, and in the instant matter, the tenant named in the expiring lease, Willie May Rogers, is deceased.

Petitioner further argues that there is a dispute as to the date the respondent's lease should begin and the amount of the monthly rent, and as such the court is precluded from granting the instant summary judgment motion. Petitioner also points out that the respondent has not cited which specific section of CPLR 3211 he is moving under in requesting summary judgment.

DISCUSSION:

The branch of respondent's motion seeking leave to amend the answer:

A party may amend or supplement his pleadings by leave of the court, which shall be freely given. CPLR 3025(b). Public policy favors resolution of cases on their merits. Goldman v. City of New York, 287 AD2d 482 (AD 2nd Dept, 2001). "Courts have broad discretion to grant relief from pleading defaults where the moving party's claim or defense is meritorious, the default was not willful, and the other party not prejudiced." Goldman v City of New York, supra. At 483. See also Smith v. Maya 1999 WL 1037917 (N.Y.AD2d Dept., Jul 23, 1999) (NO. 98-770-KC).

The respondent initially appeared pro se and filed a written answer through the court clerk's office. Respondent subsequently appeared by counsel on the first adjourn date. The respondent's instant motion was returnable on the first adjourn date, and appended to it is his proposed amended answer. Respondent's proposed amended answer interposes an affirmative defense of a breach of the warranty of habitability and a counterclaim for attorney's fees [FN5]. The proposed amended answer also requests the court issue an order dismissing the petition with prejudice, and directing the petitioner to offer him a rent stabilized lease. [*5]

In the instant matter, the petitioner has not demonstrated how it would be prejudiced if the court allows respondent leave to file the proposed amended answer, which was appended to the instant motion and made returnable on the first adjourn date. Petitioner's arguments in opposition to this branch of the respondent's instant motion are unavailing. Accordingly, the branch of the respondent's motion seeking an order permitting the filing of his proposed amended answer appended to his instant motion is granted, and is deemed served and filed nunc pro tunc.

The branch of respondent's motion seeking dismissal:

The respondent's right to occupy the subject apartment as a successor-in-interest relates back to the date of the death of his great grandmother Willie Mae Rogers. The petitioner's unsuccessful licensee holdover proceeding against the respondent only resulted in judicial enforcement of that pre-existing right. 245 Realty Associates v Sussis, 243 AD2d 29 (AD 1st Dept, 1998) There is a marked difference between the occupant's status as a successor-in-interest and his eventual status as a tenant in his own right. "...The successor-in-interest is not yet a tenant...." 245 Realty Associates v Sussis, supra at 35.

Here, the petitioner did not recognize the respondent's right to succeed to the rent stabilized tenancy of his deceased great grandmother, Willie May Rogers. The petitioner did not offer the respondent a renewal lease commencing after Ms. Rogers' last lease expired on May 31, 2010, and instead chose to commence and pursue a licensee holdover proceeding against him to evict him. Petitioner's attempt to evict the respondent was unsuccessful. After trial the court dismissed the holdover as it found that the respondent was entitled to succeed to his great grandmother's rent stabilized tenancy as a non traditional family member.

"...The relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence..." Stern v Equitable Trust Co. Of New York, 238 NY 267 at 269 (1924) "..It is elementary that a nonpayment proceeding must be predicated on a default in rent owed pursuant to the agreement under which the premises are held' (internal citations ommitted)...". 615 Nostrand Avenue Corp v Roach, 15 Misc 3d 1 (AT, 2d Dept, 2005) RSC Section 2520.6 (d) defines a tenant as "Any person or persons named on a lease as lessee or lesseess, or who is or are a party or parties to a rental agreement and obligated to pay rent for the use or occupancy of a housing accommodation." See also Pald Enterprises, Inc. v Gonzalez, 173 Misc 2d 681 (AT 2nd Dept, 1997)

The petitioner's act of commencing and pursuing a licensee holdover proceeding against the respondent through trial is express conduct that it did not have a landlord tenant relation with the respondent, and did not want one. To date, the respondent has not entered into a rental agreement with the petitioner. The petitioner offered the respondent a renewal lease dated April 21, 2011 that was to commence on June 1, 2010. Approximately three weeks after receipt of that renewal lease, the respondent via counsel, rejected that renewal lease as invalid due to its commencement date. The respondent instead prepared and signed a renewal lease with a August [*6]1, 2011 commencement date which was forwarded to petitioner's counsel. Along with that renewal lease was an explanation as to why the August 1, 2011 date was selected as well as to the lease increase amounts. The petitioner failed to execute a copy of the lease commencing August 1, 2011.

The court finds the petitioner's argument unpersuasive that RSC section 2523.5 ( c )(1) is inapplicable to the respondent in terms of his option to commence the renewal lease either on June 1, 2010 or on the first rent payment date occurring no less than ninety days after the renewal lease offer is made. Petitioner's argument appears to be that RSC 2523.5( c) (1) is inapplicable because of its reference to RSC 2523.5(a), and the language in RSC 2523.5(a) refers to tenants named in an expiring lease, which was not the respondent, but the deceased Willie Mae Rogers.

RSC section 2523.5(a) states in pertinent part:

On a form prescribed or a facsimile of such form approved by the DHCR...every owner...shall notify the tenant named in the expiring lease not more than 150 days and not less than 90 days prior to the end of the tenant's lease term...and offer to renew the lease or rental agreement at the legal regulated rent permitted for such renewal lease and ...on the same terms and conditions..."

In the instant matter, petitioner chose not to recognize the respondent as the successor tenant to his deceased great grandmother's rent stabilized apartment. If the petitioner had chosen this course and offered the respondent a timely renewal lease in his own name after his deceased great grandmother's lease expired on May 31, 2010 it could have entered into a lease with the respondent commencing on June 1, 2010. "...While parties are accorded considerable latitude in charting their procedural course before the courts...they are bound by the consequences attendant upon the exercise of that perogative..." Sean M. v City of New York, 20 AD3d 146 at 150 (AD, 1st Dept, 2005)(internal citations ommitted) Instead, petitioner chose to pursue a licensee holdover proceeding against the respondent to evict him, which was dismissed after trial. The court also held the respondent is entitled to succeed to Willie Mae Rogers' rent stabilized tenancy. Accordingly, the respondent is the subject apartment's rent stabilized tenant, and as such is entitled to a lease renewal pursuant to RSC 2523.5( c)(1).

RSC Section 2523.5 ( c )(1) states:

Where the owner fails to timely offer a renewal lease or rental agreement in accordance with subdivision (a) of this section, the one- or two-year lease term selected by the tenant shall commence at the tenant's option, either (I) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner, and the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of the lease for which a timely offer should have been made. [*7]

After the court dismissed the petitioner's licensee holdover case against the respondent on February 25, 2011 and recognized him as the successor rent stabilized tenant to the subject apartment, the petitioner offered the respondent a renewal lease, which was to commence on June 1, 2010. Ms. Roger's last rent stabilized lease expired on May 31, 2010. Respondent via counsel rejected that offer as invalid as he chose instead pursuant to RSC 2523.5 ( c )(1) to have the renewal lease commence on August 1, 2011 which was the first rent payment ninety days after the petitioner sent the renewal lease to him. Respondent went so far as to forward to petitioner a proposed renewal lease he signed commencing August 1, 2011 with an explanation as to why he had chosen the lease to commence on August 1, 2011 with increases in effect at that time "...which is 90 days (plus about 10) from the date the lease was offered, rather than having it commence on the date that it would have had the offer been timely..."[FN6]

It is undisputed that to date neither the respondent nor his attorney have received a copy of the lease he signed that was to commence on August 1, 2011 back from the petitioner with the petitioner's signature. Therefore, there is no lease in effect between the parties, and as such no contract between them for payment of rent. Accordingly, the underlying non payment proceeding cannot be maintained.

Based on the foregoing, and in light of the particular circumstances presented herein, the remaining branch of the respondent's motion seeking dismissal of the underlying nonpayment proceeding is granted. The court finds the petitioner's arguments in opposition to this branch of the respondent's motion unavailing. This constitutes the decision and order of the court.

January 19, 2012

_______________________________

Marcia J. Sikowitz, J.H.C. Footnotes

Footnote 1:Copy appended as respondent's Exhibit D.

Footnote 2:Copy of respondent's counsel's May 12, 2011 correspondence to petitioner's attorney appended as respondent's Exhibit G. Copy of respondent's proposed signed renewal lease commencing August 1, 2011 appended as respondent's Exhibit H.

Footnote 3:Copies of 5/26/2011 email from petitioner's counsel to respondent's counsel, and 7/18/2011 email from respondent's counsel to petitioner's counsel appended to petitioner's opposition.

Footnote 4:Copy of lease for the period August 1, 1985 through July 31, 1987 between Putnam Associates and Willie Mae Rogers appended to petitioner's opposition.

Footnote 5:The court notes that paragraph 14 of respondent's counsel's reply affirmation indicates there is no attorneys fees provision contained in the lease between the petitioner and the prior tenant of record.

Footnote 6:Copy of respondent's counsel's May 12, 2011 correspondence to petitioner's attorney appended as respondent's Exhibit G. Copy of respondent's proposed signed renewal lease commencing August 1, 2011 appended as respondent's Exhibit H.