GIT LEB, LLC v Golphin

[*1] GIT LEB, LLC v Golphin 2016 NY Slip Op 50713(U) Decided on April 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., WESTON and SOLOMON, JJ.
2014-1006 K C

GIT LEB, LLC, Appellant,

against

Constance Golphin, Respondent, -and- "JOHN" GOLPHIN, "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), entered January 28, 2014. The order granted tenant's motion to dismiss the petition in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is denied.

In July 2013, landlord commenced this holdover proceeding to recover possession of the premises on the ground that tenant had violated a substantial obligation of her lease (see Rent Stabilization Code [RSC] [9 NYCRR] § 2524.3 [a]) by failing to pay rent in a timely manner. The petition states that tenant's chronic late payment, and nonpayment, of rent had caused landlord to commence four nonpayment proceedings against her (in November 2010, June 2011, May 2012 and November 2012), as well as to make two rent demands (in July 2010 and August 2012) and, therefore, landlord had terminated tenant's tenancy as of June 15, 2013. The pertinent part of the 10-day notice annexed to the petition states that the November 2010 proceeding sought arrears for the months of July 2010 through November 2010, the June 2011 proceeding sought arrears for the months of August 2010 through June 2011, the May 2012 proceeding sought arrears for the months of February 2012 through May 2012, and the November 2012 proceeding sought arrears for the months of October 2012 through November 2012.

Prior to serving and filing an answer, tenant moved to dismiss the petition on the grounds that it fails to state a cause of action (CPLR 3211 [a] [7]) and that a defense is founded upon documentary evidence (CPLR 3211 [a] [1]). After landlord opposed the motion, the Civil Court, by order dated January 28, 2014, granted tenant's motion, finding that the petition failed to state a cause of action.

It is well settled that a "history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation of the tenancy" (Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 621-622 [App Term, 1st Dept 2000], citing Sharp v Norwood, 89 NY2d 1068, [*2]1069 [1997]). However the "number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent" (Greene v Stone, 160 AD2d 367, 368 [1990]).

A review of the record indicates that the petition sufficiently sets forth that tenant violated a substantial obligation of the lease (see RSC § 2524.3 [a]) by her chronic late payment of rent, as evidenced by the fact that landlord had commenced four nonpayment proceedings against tenant in the three years prior to the filing of the petition in 2013. Tenant argues that the 2010 and 2011 nonpayment proceedings cannot be considered in determining whether she breached a substantial obligation of the lease because she had withheld rent due to landlord's failure to make repairs. However, tenant's claim as to the reason she did not pay rent is not conclusively established by her moving papers. Although the stipulations of settlement that the parties entered into attendant to the 2010 and 2011 nonpayment proceedings state that landlord was to make specified repairs, tenant's answers to the 2010 and 2011 petitions did not assert any habitability or repair claim. Rather, in the 2010 proceeding, tenant's answer stated that a portion of the rent had already been paid to landlord and, in the 2011 proceeding, tenant's answer contained a general denial to the petition. The fact that the subsequent stipulations state that landlord is to make repairs does not conclusively establish the reason for tenant's failure to pay rent. In fact, in regard to the 2011 proceeding, the stipulations of settlement state that tenant sought to obtain a "one-shot deal," which indicates that tenant had financial reasons for not paying rent in 2011. Consequently, the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (7), on the ground that it fails to state a cause of action, should have been denied. Furthermore, since none of the documentary evidence provided in support of tenant's motion conclusively refutes landlord's claim that tenant had violated a substantial obligation of the lease (see A G Capital Funding Partners, L.P. v State St. Bank Trust Co., 5 NY3d 582, 592 [2005]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650, 650 [2006]), tenant is not entitled to the dismissal of the petition pursuant to CPLR 3211 (a) (1), on the ground that a defense is founded upon documentary evidence.

Accordingly, the order is reversed and tenant's motion to dismiss the petition is denied.

Elliot, J.P., Weston and Solomon, JJ., concur.

Decision Date: April 27, 2016