Kew Gardens Realty Co. v Bank

[*1] Kew Gardens Realty Co. v Bank 2010 NY Slip Op 51343(U) [28 Misc 3d 133(A)] Decided on July 29, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1728 Q C.

Kew Gardens Realty Co., Respondent,

against

Todd C. Bank, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Marian C. Doherty, J.), entered August 18, 2008. The order denied tenant's motion to vacate a final judgment entered after a nonjury trial, as well as tenant's request for the imposition of sanctions, and granted landlord's cross motion for attorney's fees to the extent of setting the cross motion down for a hearing to determine the amount of fees due landlord.

ORDERED that the order is affirmed without costs.

At the nonjury trial of this nonpayment summary proceeding, tenant took the position that he did not owe certain claimed rent because of an alleged breach of the warranty of habitability and/or because of an alleged constructive eviction. After trial, the Civil Court found that tenant had not established any of his defenses and that landlord was entitled to a final judgment awarding it possession and $6,292.43 in arrears. After a final judgment was entered, tenant moved to vacate it, arguing that the Civil Court had no right to enter the final judgment because, about a week after the trial had concluded but before the final judgment had been entered, tenant had tendered to landlord's counsel the rental arrears sought by landlord. Tenant also requested the imposition of sanctions. Landlord cross-moved for an award of attorney's fees. The Civil Court denied tenant's motion and the request for sanctions, and granted landlord's cross motion to the extent of setting the cross motion down for a hearing to determine the amount of attorney's fees due landlord.

In our view, tenant's claim that he had tendered the arrears did not bar the entry of a final judgment in favor of landlord in this proceeding. It has been stated that a "timely tender" of rental arrears bars the entry of a final judgment in a nonpayment summary proceeding (New York City Hous. Auth. v Torres, 61 AD2d 681, 682 n 1 [1978]; see also Peekskill Hous. Auth. v Quaintance, 20 Misc 3d 57 [App Term, 9th & 10th Jud Dists 2008]; Chester Mamaroneck [*2]Gardens v Riggsbee, 189 Misc 2d 439 [App Term, 9th & 10th Jud Dists 2001] [arrears tendered, pursuant to a stipulation, before landlord sought entry of judgment]; Matter of Albany v White, 46 Misc 2d 915 [Civ Ct, NY County 1965] [arrears tendered prior to tenant's default in appearing in court and the entry of a default judgment]). In the instant case, however, the tender of rent was not "timely" so as to bar the entry of a final judgment, as it was not made until after the trial had concluded. In any event, tenant did not offer any sworn proof to establish that he had made the tender; instead, tenant simply sent the Civil Court a letter and a copy of the personal check allegedly sent to landlord's counsel. The Civil Court was not required to credit the claims made in tenant's letter. In these circumstances, we agree with the Civil Court that it was not barred from entering a final judgment in landlord's favor.

As landlord prevailed on the central relief sought in its petition, and as tenant did not prevail on any of his defenses, the Civil Court properly found that landlord was entitled to attorney's fees as the prevailing party, pursuant to the terms of the lease agreement (see e.g. 490 Owners Corp. v Israel, 189 Misc 2d 34 [App Term, 2d & 11th Jud Dists 2001]).

We note that tenant failed to establish any basis for the imposition of the sanctions requested in his motion.

Accordingly, the Civil Court's order, which denied tenant's motion in its entirety and granted landlord's cross motion to the extent of finding that landlord was entitled to attorney's fees, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010