Union Senior Plaza, LLP v Mavins

[*1] Union Senior Plaza, LLP v Mavins 2013 NY Slip Op 51254(U) Decided on August 2, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2013
District Court of Nassau County, First District

Union Senior Plaza, LLP, Petitioner(s)

against

Betty Mavins, "JOHN DOE", Respondent(s).



LT-001236-13



Jablonski & Jablonski

Attorney for Petitioner

50 Glen Street, Suite 208

Glen Cove, N.Y. 11542

516-676-4114

Judy Slater Hirshon, of Counsel,

Jeffrey A. Seigel, Esq., , Nassau/Suffolk Law Services, Committee Inc.

Attorney for Respondent

One Helen Keller Way, 5th Floor

Hempstead, N.Y. 11550

516-292-8100

Scott Fairgrieve, J.

Background

The petitioner commenced this Landlord/Tenant holdover proceeding on February 25, 2013 by service of a Notice of Petition to Recover Possession of Real Property for the premises located at 151 South Franklin Street, Apartment 409 in Hempstead, New York. The petitioner seeks a final judgment awarding possession of the premises, a judgment for the rent in arrears in the amount of $1,020.00 with interest from September 2012, the accruing use and occupancy of the premises at a rate of $204.00, together with the costs ($45.00) and disbursements ($100.00) of this [*2]proceeding.

The respondent moves for an order pursuant to CPLR 3211(a)(1) and (7) dismissing this proceeding. The respondent moves to dismiss under the following grounds: (1) under RPAPL 711(1) on the ground that good cause must be alleged to evict a tenant continuing in possession of the premises beyond the lease term; (2) under RPAPL 741(4) on the ground that the petition fails to identify respondent's Section 8 tenancy; (3) under 20 NYCRR §2040.5, alleging that the respondent never received the regulatory agreement or a division approved summary attached to the tenant's lease; and (4) under 24 C.F.R. §982.310(e)(2)(ii) on the ground that the petitioner failed to allege in the petition that a copy of the termination notice was served on the Section 8 agency, which respondent contends is a condition precedent to maintaining a holdover proceeding. The petitioner opposes the instant motion. The respondent filed a Reply.

Discussion

The issue is whether the petitioner may maintain a holdover proceeding where the respondent's payments were not chronically delinquent. "[T]he wrangle over which summary proceeding - nonpayment or holdover - should have been brought is more than a mere conflict over the correct remedial avenue." (Park Summit Realty Corp. v. Frank, 107 Misc 2d 318, 320, 434 N.Y.S.2d 73, aff'd 84 AD2d 700, 448 N.Y.S.2d 414, aff'd 56 NY2d 1025, 453 N.Y.S.2d 643, 439 N.E.2d 358 [Ct. App. 1982]) This court holds that the holdover type of proceeding was the incorrect proceeding under the factual circumstances alleged in the Petition.

Regarding a tenant's rent payments, it is well-established that an agreement to pay rent on a certain date is generally a material term of a lease. (Madison Ave. Leasehold, LLC v. Madison Bentley Associates LLC, 8 NY3d 59, 65 [1st Dept, App. Div. 2006]). A tenant remaining in possession after the expiration of a lease is a trespasser not entitled to a new term unless the landlord elects to allow him to remain and accepts him as a tenant; this type of implied or express conduct is binding on both parties. (Bay W. Realty Co. v. Christy, 61 Misc 2d 891, 893, 310 N.Y.S.2d 348, 351 [Civ. Ct. 1970]). To maintain a holdover proceeding for nonpayment in the case of a residential tenancy such as this, the landlord carries the burden of showing he was required to commence frequent nonpayment proceedings in a relatively short period of time. (see, 25th Realty Associates v. Griggs, 150 AD2d 155, 156, 540 N.Y.S.2d 434, 435 [1st Dept, App. Div. 1989](reversing the grant of summary judgment for the tenant below and remanding because landlord made a prima facie showing of frequent nonpayment proceedings by bringing eleven non-payment proceedings in six years) The number of nonpayment proceedings alone is not dispositive, but is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent and the frequency of missed payments (see, Greene v. Stone, 160 AD2d 367, 368, 553 N.Y.S.2d 421, 422 [1st Dept, App. Div. 1990]).

To allow the landlord to maintain a holdover proceeding where the respondent's payments were not chronically delinquent would permit a landlord to prosecute an ordinary residential nonpayment case in the guise of a holdover and thereby precipitate an irrevocable forfeiture. (see Semans Family Ltd. P'ship v. Kennedy, 177 Misc 2d 345, [*3]349, 675 N.Y.S.2d 489, 493 (Civ. Ct. 1998) quoting 205 West End Avenue Owners Corp. v. Adler, NYLJ, November 2, 1990, at 21, col 4). Absent a showing that the landlord was forced to commence multiple nonpayment proceedings, a holdover proceeding predicated upon isolated, residential rent-delinquencies should be avoided because it violates public policy . (see 61 East 72nd Street Corp. v. Zimberg, 161 AD2d 542, 556 N.Y.S.2d 46 [1st Dept, App. Div. 1990]; see also Semans Family Ltd. P'ship v. Kennedy, 177 Misc 2d 345, 675 N.Y.S.2d 489 [Civ. Ct. 1998], supra).

Here, the petitioner has failed to prove that the respondent's delinquent payments occurred repeatedly. The"Petition to Recover Possession of Real Property" shows that the respondent failed to make payments from September 2012 through January 2013. This is insufficient proof that the respondent's delinquent payments occurred repeatedly. The petitioner also failed to prove that it was forced to bring a number of nonpayment proceedings in a relatively short time. Apparently, this is the only nonpayment proceeding this petitioner has filed against this respondent. A solitary proceeding, as this is, predicated on the basis of isolated delinquent payments in the residential context fails to satisfy the chronic delinquency requirement to maintain a holdover proceeding.

In view of the foregoing, the respondent's motion to dismiss is hereby granted in its entirety without prejudice. This constitutes the Decision and Order of the Court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:August 2, 2013

Nassau/Suffolk Law Services, Committee, Inc.

Jablonski and Jablonski