Fideor v Stiewe

[*1] Fideor v Stiewe 2016 NY Slip Op 50973(U) Decided on June 24, 2016 Justice Court Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2016
Justice Court of the Town of Webster, Monroe County

Robert C. Fideor & Douglas J. Fideor d/b/a Webster Village Mall, Petitioners.

against

Robert Stiewe, Jr. d/b/a Heavy Metal Records, Respondent.



16020050



Richard A. Goldberg, Esq., Attorney for Petitioners

Peter J. Glanville Esq., Attorney for Respondent
Thomas J. DiSalvo, J.

The petitioners instituted a summary proceeding pursuant to Article 7 of the Real Property Actions and Proceedings Law against the respondent for rent arrears and to recover possession of certain premises utilized as a used records store. The store was located in a building containing various other small businesses at 75 West Main Street in the Village of Webster. A Notice of Petition and Petition, dated January 5, 2016 were filed with the court on February 5, 2016. The respondent was personally served with said pleading on January 30, 2016.

The matter came on regularly to be heard on February 17, 2016. At that time the respondent indicated that he was no longer occupying the premises. He further alleged that he was constructively evicted by the landlord. As a result, the matter was set down for a hearing. On or about March 29, 2016 the petitioner filed an Amended Petition to include a demand for February's rent. The hearing was eventually adjourned to May 4, 2016.

At that hearing the petitioners' attorney called two witnesses to testify, to wit: the petitioner, Robert C. Fideor and the petitioner's wife, Karen Fideor. The respondent's attorney called five witnesses, to wit: the respondent, Robert Stiewe, Jr., Jan Southern, the respondent's wife, Jack T. Talbot, another tenant in the building, Frederick Krempin, respondent's friend and an insurance agent, and Todd Snyder, a customer and friend of the respondent.

Facts of the Case.

The parties acknowledged that there never was a lease for the premises in question. Thus the respondent possessed a month to month tenancy. In fact the respondent and his father before him operated a small business out of that location for about thirty years. At the time the action was commenced the monthly rent was $450.00 per month. The petition sought back rent for December of 2015 and January of 2016. The petitioners sought and received permission of the [*2]court to amend the petition to include a demand for February's rent, which made the amount demanded $1,350.00.

The petitioner, Robert C. Fideor, testified that on November 30, 2015, while filling the building's hot water heating system with water, a certain cap on a pipe broke which caused the respondent's record store to be flooded with about one inch of water. Said petitioner testified about his efforts to collect the water and dry up the premises. The petitioner's wife testified along the same lines.

The respondent and his witnesses testified to the continued musty damp and cold conditions that lasted into January of 2016. In fact the respondent testified that he was forced to operate his store from out in the hall of the building just outside the door to his store. Furthermore, the respondent testified that he moved out of the premises on January 12, 2016. In fact, on rebuttal testimony the petitioner testified that on the morning of that date he noticed a moving truck in the parking lot of the premises. He also indicated that one of the movers asked him if he was "Record Bob"? To which he replied "There's your man", referring to the respondent. Nevertheless, the petitioner testified that he did not realize the respondent was in the process of moving out of the building.

The respondent subsequently testified that on December 30, 2015 the petitioner told him that if he did not get his rent for December he would charge him double until he evicted him. Respondent testified that early on January 12, 2016 he met Sheridan Brothers Movers at the premises. That he saw the petitioner sitting in his car in the said parking lot. He further stated that the petitioner followed him and the moving truck about a block away to his new location. The petitioner denied following the respondent in his rebuttal testimony.

The petitioner argues that the landlord and tenant relationship was not terminated until February 17, 2016, when the tenant returned the key to the premises to the landlord.[FN1] The respondent argues that the tenancy was terminated on January 12, 2016, when he moved out of the building. He further contends that he was forced to move from the premises as a result of a constructive eviction, caused by the cold, damp and smelly conditions that were caused by the petitioner, and that those conditions were never fully ameliorated, making it impossible to conduct business in the premises in question.

Issues Presented.

Did the fact that the tenant did not turn in the key to the premises upon his departure result in a failure to terminate the landlord and tenant relationship?

When did the landlord and tenant relationship come to an end?

Was the respondent constructively evicted from the premises?

How much back rent is due to the landlord?

Legal Analysis.

Return of the Key. The petitioner demanded payment for the months of December, January and February. His claim is in part based on the fact that the key to the store was not received from the respondent when the premises was vacated. In addition, the petitioner advises that he was not actually aware that the respondent did in fact move out. Petitioner argues that the [*3]landlord and tenant relationship was not severed till the end of February 2016, since the key to the premises was not surrendered by the respondent until February 17th. "It has been held that the tenant's return of the keys in and of itself does not constitute a surrender by operation of law". (Ukeiley, Landlord & Tenant Disputes in New York, Chapter 8 [D] at 79 [2013]). Thus the fact that the respondent herein did not immediately turn in his key to the landlord upon vacating the premises is not determinative of the issue of severance of the landlord and tenant relationship. In other words the respondent's tenancy could be terminated prior to the surrender of the key.

Termination of the Tenancy. "A surrender by operation of law, also referred to as an implicit surrender, occurs where the parties act in a manner (without an express agreement) inconsistent with a Landlord and Tenant relationship which [i]ndicates their intent to deem the lease terminated.'"[FN2] A situation involving a tenant who is moving out his belongings under the watchful eye of a non-objecting landlord, who had demanded that the tenant pay back rent or be evicted, would seem to evince an intent by both parties to discontinue the tenancy in question. In this case the petitioner testified to being at the premises, on what was established to be January 12, 2016, and seeing a large moving van in the parking lot, speaking to one of the movers and identifying respondent for that individual. That incident followed an argument in late December of 2015, wherein the petitioner told the respondent he was going to evict him if he was not paid back rent and that he would charge him double rent in the meantime. The respondent testified that he told the petitioner that since the flooding of his store destroyed a significant amount of his merchandise no rent was owed. In any event, despite petitioner's denials it is difficult to believe he did not realize that the respondent was vacating the premises on January 12, 2016.Under the circumstances described there can be no doubt that the landlord and tenant relationship terminated on January 12, 2016.

Constructive Eviction. It has been held by the Court of Appeals that "... constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises ...." (Barash v. Pennsylvania Terminal Real Estate Corporation, 27 NY2d 77,83, 308 N.Y.S.2d 649 [1970]). As previously stated the respondent was a month to month tenant in that there was no written lease. Although he physically left the premises before the end of the month, to wit: on January 12, 2016, it was the respondent's testimony that he could not properly operate his store due to the lack of heat, the dampness and the musty smell that existed inside the store from the time of the flood until the time he physically left the building. These conditions were also variously testified to by the respondent's witnesses. In addition Jack Talbot, the other tenant of the petitioner, testified to observing the respondent perating his store while standing in the hall outside the store subsequent to the flooding. Thus he was initially at least partially required to vacate the premises in question prior to actually leaving the building.

"In order to assert the defense, the Tenant must demonstrate that it physically vacated those portions of the subject premises claimed to have been denied within a reasonable period of time. The Tenant need not abandon the entire premises , only those affected areas. If the Tenant continued to use the portion of the subject premises at issue, even if [*4]the usage was greatly diminished , then the defense of constructive eviction is not applicable."[FN3]

Through January 12, 2016, the situation described by the respondent and his witnesses has been referred to as a "substantial diminution" of the extent to which he could beneficially enjoy the premises.[FN4] Nevertheless, the respondent did use the premises during that time, for storage and display of his merchandise. He never did completely abandon the premises until he moved out on January 12th. "Thus where the tenant remains in possession of the demised premises there can be no constructive eviction"[FN5] As a result, there was no constructive abandonment during the month of December through January 12, 2016.

However, since the cold, damp, smelly conditions in the premises did not change, due to the refusal, inability and/or neglect of the landlord, the respondent was forced to vacate the premises on January 12, 2016. At that point there was a constructive eviction. The fact that the petitioner offered to move the respondent to another portion of the building is some proof that even the landlord considered the premises in question to be in an unacceptable condition. The Court of Appeals long ago held that "... by reason of such neglect, the tenant is deprived of heat or water or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction." (Tallman V. Murphy, 75 Sickels 345, 352. [1890]).[FN6] This court further holds that a refusal of the tenant to move to another portion of the building, while the landlord repairs and renovates the premises in question, does not negate the right of the tenant to allege the defense of constructively eviction.

Rent Arrears. As previously noted the petitioners demanded rent payments for December 2015, and January and February of 2016 at $450.00 per month for a total of $1,350.00. Certainly, there was no constructive eviction in the month of December 2015. Thus the respondent is responsible for December's rent. Since the landlord and tenant relationship was terminated when the respondent moved out of the premises on January 12, 2016, as a result of a constructive eviction, the respondent is not liable for February's rent. A tenant is not liable for rent for the month subsequent to the month wherein the premises were vacated.[FN7] "Even now, generally, a monetary award in favor of landlord can only be made concomitant with an award of possession' in a summary proceeding (615 Nostrand Ave. Corp. v. Roach, 15 Misc 3d 1,4, 832 N.Y.S.2d 379 [*5][App. Term, 2d & 11th Jud Dists 2006])".[FN8] That leaves the issue of rent for the month of January. Based on the complete constructive eviction that occurred on January 12, 2016, the petitioner is not entitled to the full amount of the January rent. "A tenant that has been constructively evicted is entitled to an abatement of rent (not an entire suspension of rent)."[FN9] The monthly rent for that month was $450.00 or $14.52 per day.[FN10] The respondent was in the premises for 12 days in January. Thus the amount owed by the respondent for January's rent was $174.24.[FN11] That amount plus December's rent of $450.00 results in the total amount of rent arrears to be $624.24. Cancellation of the remaining amount of January's rent is the abatement due the respondent as a result of the constructive eviction.

Conclusion

The fact that the respondent did not turn in the key to the premises upon his vacating the premises was not the deciding factor on the termination of the month-to-month tenancy. The landlord and tenant relationship was discontinued when the respondent moved out of the premises on January 12, 2016 with the knowledge of the landlord. The cold, damp and smelly conditions resulting from the flooding of the respondent's store on November 30, 2015, because of the actions of the petitioner, when he attempted to add water to the hot water heating system, made the conditions in respondent's store untenable. His failure to ameliorate those conditions resulted in a constructive eviction of the respondent on January 12, 2016. Based on that constructive eviction the respondent would only be responsible for December's rent of $450.00 and 12 days of January for $174.24 for a total of $624.24. The petitioner shall be entitled to a judgment in said amount.[FN12] This constitutes the decision and order of this court.

Dated: June 24, 2016

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1:In fact the key was returned to the petitioner during a court appearance of the parties on February 17, 2016 at the request of petitioner's attorney.

Footnote 2:Id.

Footnote 3:Ukeiley at 82,.

Footnote 4:Barash at 84.

Footnote 5:Id..

Footnote 6:A constructive eviction by its vary nature eliminates any requirement to provide the landlord with a 30 day notice.

Footnote 7:Ukeiley at 80. See also Patchogue Associates v. Sears, Roebuck and Co, 37 Misc 3d 1, 951 N.Y.S.2d 314 [2012].

Footnote 8:Patchogue Associates v. Sears, Roebuck and Co., 37 Misc 3d 1, 4, 951 N.Y.S.2d 314, [2012]).

Footnote 9:Id at 82.

Footnote 10:$450.00/31 days = $14.52 per day.

Footnote 11:A determination as to any other amount of rent due would be arbitrary in nature.

Footnote 12:The respondent, although claiming that a substantial amount of his inventory was destroyed, did not interpose a counterclaim relative to same. Nor did he present any evidence of any monetary damages in that regard. Nevertheless, the respondent would not be prohibited from pursuing a separate action for said damages to his personal property.