LA Gem, LLC v Fuentes

[*1] LA Gem, LLC v Fuentes 2018 NY Slip Op 51051(U) Decided on June 28, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ
2017-1630 W C

LA Gem, LLC, Appellant,

against

Cedeno Natioidad Fuentes, Respondent, and Jose M. Fuentes, Tenant.

Andrew M. Romano, Esq., for appellant. Cedeno Natioidad Fuentes, respondent pro se (no brief filed).

Appeal from a final judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered June 30, 2016. The final judgment, after a nonjury trial, awarded landlord a possessory judgment only for the sum of $1,668, and only a nonpossessory judgment for the sum of $2,497.50, and directed landlord to remove certain charges from tenants' rent bill going forward, in a nonpayment summary proceeding.

ORDERED that the final judgment is modified by striking the provision directing landlord to remove certain charges from tenants' rent bill going forward; as so modified, the final judgment is affirmed, without costs.

Landlord commenced this nonpayment proceeding to recover possession of the leased premises, as well as rent arrears, late fees, attorney's fees, and other costs and disbursements. Subsequently, three successive final judgments were entered, awarding landlord possession of the premises along with rent arrears, attorney's fees, and other costs and disbursements, but each of these final judgments was ultimately vacated. Following a nonjury trial, the City Court awarded landlord a possessory judgment for one month's rent and a nonpossessory judgment for late fees, attorney's fees, and other costs and disbursements. The court also directed landlord to "remove those charges [for late fees, attorney's fees and other costs and disbursements] from [tenant's] rent bill going forward." Landlord appeals.

Initially, we find that, contrary to landlord's contention, the City Court properly awarded landlord a possessory judgment for only one month's rent in the sum of $1,668. The record establishes that, although tenant admitted that she had failed to pay the rent for May and June 2016, she had ultimately paid the rent for May 2016 in open court and released the funds that she had deposited into court to cover the rent owed for a different two months, leaving an outstanding balance of one month's rent. While landlord submitted a handwritten document purporting to show that its own calculation of rent arrears yielded a higher amount, we see no [*2]basis in the record to disturb the City Court's determination regarding the amount of rent owed.

We reject landlord's contention that it was entitled to a possessory, rather than a nonpossessory, judgment for legal fees, late fees and other disbursements. Since landlord failed to submit a copy of the parties' lease into evidence to establish that it was entitled to recover these items as additional rent in this summary proceeding, it failed to demonstrate that it was entitled to any award for these items (see Green v Weslowski, 53 Misc 3d 144[A], 2016 NY Slip Op 51568[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Evans v Tracy, 34 Misc 3d 152[A], 2012 NY Slip Op 50307[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Peekskill Hous. Auth. v Quaintance, 20 Misc 3d 57, 58 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). However, as tenant has not cross-appealed from so much of the final judgment as awarded these fees and disbursements, we leave the nonpossessory award undisturbed. We incidentally note that, during the hearing, landlord consented to a nonpossessory judgment for the award.

However, we agree with landlord that the City Court lacked the authority to direct landlord to remove certain charges from tenants' rent bill going forward. Except for proceedings for the enforcement of housing standards (see UCCA 203 [a] [6]) and matters relating to replevin, prevention of waste, land use, building regulation, fire prevention and enforcement proceedings (see UCCA 209 [b]; 1508 [a]), the City Court may not grant injunctive relief. Inasmuch as the order directing landlord to remove certain charges from tenant's future rent bill is injunctive in nature, granting such relief was beyond the jurisdiction of the City Court (see Arbern Realty Co. v Clay Craft Planters Co., 188 Misc 2d 314, 316 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]; see also Factor, LLC v Lipschitz, 55 Misc 3d 141[A], 2017 NY Slip Op 50595[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; World Realty Corp. v Consumer Sales, Inc., 9 Misc 3d 136[A], 2005 NY Slip Op 51696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]).

Accordingly, the final judgment is modified by striking the provision directing landlord to remove certain charges from tenants' rent bill going forward.

RUDERMAN, J.P., TOLBERT and BRANDS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk