Cazares v Aguilar

[*1] Cazares v Aguilar 2012 NY Slip Op 50283(U) Decided on February 22, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2012
District Court of Nassau County, First District

Edgar Cazares, Petitioner(s)

against

Eduardo Aguilar, NELLY AGUILAR, "JOHN DOE" and "JANE DOE", Respondent(s)



LT-003118-11



Rosenthal, Curry & Kranz, LLP, Attorney for Petitioner, 1600 Front Street, East Meadow, New York 11554, 516-485-5577; Thomas Weiss & Associates, P.C., Attorney for Respondents, 600 Third Avenue, 15th Floor, New York, NY 10016, 646-553-5204.

Scott Fairgrieve, J.

TRIAL DECISION

Petitioner Edgar Cazares commenced this holdover proceeding to recover possession of the premises located at 291 White Road, Mineola, New York from the respondents Eduardo Aguilar and Nelly Aguilar.

Petitioner alleges in the petition dated May 25, 2011, that respondents were month-to-month tenants under an oral lease which expired on March 31, 2011. A 30 day notice to vacate was allegedly provided to respondents.

A trial was conducted on January 9, 2012. Petitioner testified that he became the owner of the premises on August 28, 2006 because respondents were in danger of losing the premises due to non-payment of the mortgage. Respondents were going to take the property back in four months but this never occurred.

Petitioner was a tenant at the premises renting a room when he acquired title in 2006. Petitioner never paid for the mortgage nor did he pay any money for the transfer of title.

Respondents paid the mortgage, utilities and repairs.

Petitioner testified that he never charged respondents rent. When the transfer occurred, respondents agreed to pay the mortgage. Petitioner indicated that a new mortgage was obtained [*2]which paid off the old mortgage.

Respondent Eduardo Aguilar testified that petitioner is his brother-in-law. Petitioner continued paying respondent $500 per month until 3 months before petitioner vacated the property in September of 2010.

Respondents paid the mortgage payments until September of 2011, but not thereafter. The new mortgage is with Chase.

This court holds that it has no jurisdiction to resolve the issues raised. The payment of the mortgage does not constitute an agreement to pay rent unless the parties specifically agree otherwise. 1 Dolan, Rasch's Landlord & Tenant Summary Proceedings, § 12:3 at 524-5 [4th ed], states: "Rent is a term" said Watson, J., "which is peculiarly applicable to income to be derived only from real estate, and is a certain profit issuing out of lands or tenements. Whether all payments which a tenant is bound to make under the terms of a lease are a part of the rent depends upon the contract of the parties, which is the lease." Therefore, when additional payments are covenanted to be made by a tenant under a lease, such as taxes, assessments, the cost of repairs, insurance premiums, and the like, such payments will constitute rent only if the parties so agree. The term "rent" will not be deemed to include any other payments which the tenant has covenanted to make, unless the parties expressly provide that such other payments shall constitute rent. If the parties intend, and they express such intention clearly, that the amount of the other payments to be made by the tenant under the terms of his lease shall be part of the rent for the use of the leased premises, and, as such, added, when liquidated, to the constant, liquidated rent originally reserved, then such other payments will be treated as rent, and will be enforceable as such; for, a lease may provide for payment of rent in any manner or at any time that the parties elect.

In Park Property Development v. Santos, 1 Misc 3d 16, 767 NYS2d 558 (App Term, 2nd & 11th Jud Dists 2003), the court makes clear that non-rent payments are not recoverable in a summary proceeding.

In Ward-Evans v. Evans, 27 Misc 3d 440, 898 NYS2d 418 (Nassau Cty, Dist Ct 2010), the court dismissed the action because no Landlord-Tenant relationship was created by the obligation to pay pursuant to a marital stipulation of settlement: The money sought by the petitioner is not rent and no Landlord-Tenant relationship is created by the marital stipulation of settlement. In a summary proceeding to recover possession of real property, this court has no jurisdiction to [*3]adjudicate monetary claims other than for rent oradditional rent. See Tivola Associates v. Wing, 1984, 122 Misc 2d 901, 471 NYS2d 1018 (Civil Ct., City of New York, Kings County), wherein the court stated: "In a special proceeding pursuant to article 7 of the RPAPL, a court has no jurisdiction to adjudicate a monetary claim other than rent allegedly owed. (Rasch, NY Landlord & Tenant (2d ed), § 995; Allyn v. Markowitz, 83 Misc 2d, 250, 373 NYS2d 293, supra.)"

There is no evidence to support a finding that the parties reached an agreement that the mortgage payments constituted rent. 1 Dolan, Rasch's Landlord & Tenant — Summary Proceedings, § 12:5, at 525-6 [4th ed], wherein the following is written concerning a situation wherein the parties provided that the sums to be paid by respondent constituted rent: Where a lease provided for rent "at the yearly rent or sum as follows: the payment of the fixed sum of $2600, and in addition the interest on the first mortgage on said property for the sum of $100,000; together with taxes, water rates, and assessments against the said property, to be paid semiannually or as said obligations may accrue . . . and the said parties of the second part do covenant to pay unto the said party of the first part the said yearly rent as herein specified." Here, the court said, the parties had expressly reserved the payment of other items as rent. Therefore the landlord could enforce payment thereof as rent.

In the case at bar, there is no basis to support jurisdiction in this court absent an agreement that the mortgage payments constituted rent or additional rent. The parties informed the court that a separate action for constructive trust is pending in the Supreme Court concerning the property. This matter concerning the payment of the mortgage properly belongs in the Supreme Court.

CONCLUSION

This court lacks jurisdiction to decide this matter because no Landlord-Tenant relationship was established. There was no expressed agreement that the mortgage payments constituted rent.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:February 22, 2012