Fizzinoglia v Capozzoli

[*1] Fizzinoglia v Capozzoli 2012 NY Slip Op 51562(U) Decided on July 24, 2012 City Court Of New Rochelle Kettner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2012
City Court of New Rochelle

James Fizzinoglia, Petitioner-Landlord,

against

Louis Capozzoli and Maritza Capozzoll, Respondents-Tenants,



SP 4475-10



NICHOLAS LEO, JR. ESQ.

Law Office of Nicholas Leo, Jr., P.C.

111 Lockwood Avenue, 1st floor

Yonkers, NY 10701

Attorney for Petitioner

JEFFREY I. KLEIN, ESQ.

445 Hamilton Avenue, Suite 405

White Plains, NY 10601

Attorney for Respondents

Susan I. Kettner, J.

In this summary proceeding for possession, use and occupancy, a trial was held on December 13, 2011. The court rendered a decision, dated February 2, 2012 awarding the petitioner judgment of possession, warrant of eviction with no stay, finding that respondent failed in their equitable defense of ownership of the subject property. The court found that respondent failed to demonstrate all of the elements necessary to establish a constructive trust in its favor. Specifically, respondent failed to show that it paid any consideration to petitioner and therefore failed in its defense of the proceeding. The court reserved on the issue of the value of use and occupation to be awarded to petitioner, severing the issue for a separate plenary hearing on the issue of the value of use and occupancy. At the hearing held on May 10, 2012 and continued to June 5, 2012, the following was received into evidence:

Petitioner's Exhibit 1Letter dated, February 20, 2012 from Nicholas Brescia, Real Estate Sales Agent of Pachyderm Realty LLC stating the average monthly rental prices for New Rochelle home is approximately $2,850.00 per month.

Petitioner's Exhibit 2Zillo listing for 55 Neptune Avenue, New Rochelle, NY, dated 2/16/12 showing a monthly rent of $3,000.00 [*2]

Petitioner's Exhibit 3MLS "Quick, No Photo-Rental" listings dated 2/22/12, showing a listing of 5 comparable properties and the monthly rental amount.

Petitioner's Exhibit 4-15Various photographs of the premises. 9 Meadow

Lane, New Rochelle, both interior and exterior, dated approximately April, 2012.k,

Respondent's Exhibit AHandwritten note of expenses for 2007 and copy

of various bills

Respondent's Exhibit BHandwritten note of expenses for 2008 and copy of various bills

Respondent's Exhibit CHandwritten note of expenses for 2009 and copy of various bills

Respondent's Exhibit DHandwritten note of expenses for 2010 and copy of various bills

Respondent's Exhibit EHandwritten note of expenses for 2011 and copy of various bills

The credible facts adduced at the hearing to determine the value of use and occupation, established the following:

Respondents, the original owners conveyed the premises by Bargain and Sale Deed, with Covenants Against Grantors' Acts to petitioner in April, 2007. At the closing the petitioner took out a mortgage in the amount of $600,000.00 for which he is the sole obligor. Both parties agreed that the respondents would pay "rent", which would cover the petitioner's carrying costs on the mortgage, (including taxes and insurance). That amount was $4,840.29 per month. Petitioner never made any payments toward the mortgage and never had any intention of moving into the premises. Both parties testified that respondents paid petitioner $10,000.00 for use of his credit. Seven months after the closing in April, 2007, respondent stopped paying after making approimately eight payments. Respondents never demonstrated by credible evidence that they had the ability to refinance and purchase the premises from petitioner.

At the hearing for use and occupancy, respondent claimed that he paid over $216,000.00 "for everything". Respondent sought credit for improvements that it made. However, the respondent was not able to show that the improvements were either necessary or made at the petitioner's request or petitioner's benefit.. In addition, the Respondent's testimony contradicted his testimony at the prior trial where he interposed the equitable defense of "ownership"-that the petitioner was a mere nominee and respondent was the true owner. The credible facts demonstrate that both parties planned that petitioner would purchase the property from the respondent for fair market value. Both parties agreed that respondent agreed to pay the carrying costs until he could purchase the property from petitioner. This is nothing more than a garden-[*3]variety landlord-tenant matter dressed up as a failed effort to establish a constructive trust.

"Absent an agreement to create a landlord-tenant relationship, a vendor of property cannot recover an award for a contact vendee's use and occupancy of the property see, Barbarita v. Shilling, 111 AD2d 200, 489 N.Y.S.2d 200; Pinmor Realty Corp. v. Baris Hotel Corp., 83 AD2d 847, 441 N.Y.S.2d 751; 1 Rasch, New York Landlord and Tenant § 64 [ 2d]) Greenbriar-Somers Corp. v. Petrone, 124 AD2d 705, 508 N.Y.S.2d 465. Thiscourt finds that there is ample evidence that the parties here intended to crate a landlord-tenant relationship during the period of time that the respondent sought to re-finance the property and purchase it from the petitioner. For example, both parties agreed that the petitioner would purchase the property for fair market value ; Petitioner would hold the mortgage and that the respondents would pay the carrying costs in the amount of $4,840.29 per month until they could purchase the property. Both parties testified that petitioner never resided in the premises nor did he ever evidence a desire to do. Both parties called the payment "rent". The performance by both parties takes the agreement outside the Statute of Frauds. "The general rule is that execution of a contract of sale between landlord and tenant serves to merge the landlord tenant relationship into the vendor-vendee relationship and thus effectively terminates the former, unless the parties clearly intend the contrary result". Barbarita v. Shilling, 111 AD2d 200, 489 N.Y.S.2d 86. Here, despite the lack of a written contract of sale, there was a great deal of evidence pointing to the agreement whereby the respondents agreed to pay "rent" consisting of the mortgage payment, including taxes and insurance. They did this for eight months and stopped. There can be no other logical conclusion than the based upon all of the evidence adduced at two separate hearings.

The court awards petitioner judgment in the amount of $256,535.37 which represents the value of use and occupation for 57 months covering the period of December, 2007 through April, 2012.[FN1]

The foregoing constitutes the Decision and Order of the Court.

Dated: July 24, 2012

New Rochelle, New York



Hon. Susan I. KettnerCity Court Judge Footnotes

Footnote 1:The monthly carrying costs of $4,840.29 x 53 months.