56 Mac D. Inc. v Andria

[*1] 56 Mac D. Inc. v Andria 2003 NY Slip Op 51726(U) Decided on January 3, 2003 Civil Court Of The City Of New York, New York 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2003
Civil Court of the City of New York, New York County

56 MAC D. INC., Petitioner,

against

MATTHEW ANDRIA and ALETA HAYES 56-58 MacDougal Street, No.3 New York, N.Y. 10012 Respondents,



92928/02



Saul Bruh, Esq.

Kucker & Bruh

36 West 44th Street - Suite 415

New York, N.Y. 10036

(212) 869-5030

Jack Stoller, Esq.

Legal Aid Society

199 Water Street, 3rd Fl.

New York, N.Y. 10038

(212) 440-4243

Michelle D. Schreiber, J.

After a trial held November 15 and 18, 2002 [FN1], and after due deliberation and consideration of the credible testimonial and documentary evidence adduced at the trial, the Court makes the following findings of fact and conclusions of law.[FN2]

Petitioner commenced this summary proceeding to recover possession of apartment 3, a rent stabilized apartment, in the building located at 56-58 MacDougal Street in Manhattan on the ground that respondents' lease had expired.

Petitioner asserts that respondents were timely offered a renewal lease for their apartment, they declined the offer, petitioner decided to combine the apartment with a contiguous apartment, an architect was consulted and a lease with a new tenant was signed. Respondent Andria alleges that he declined to renew the lease, vacated and surrendered the apartment prior to the expiration of the lease term. Respondent Hayes alleges that she signed the proffered renewal lease with the intention of renewing for one year, leaving the mailing of the lease to Andria in accordance with their usual practice regarding renewals. Upon learning that Andria opted not to renew the lease she immediately notified the landlord; she asserts that Andria had no authority to bind her to nonrenewal of the lease, and seeks dismissal of the petition.

At trial the parties stipulated to a certified copy of the deed, the Multiple Dwelling Registration, the original lease between the parties, the July 2001 renewal lease, the September 2002 renewal offer, and the fully executed renewal lease dated July 28, 2002.

Rocio Sanz, the manager of the subject building and secretary of the corporation, testified that she remembers receiving the signed renewal lease declination at the end of July 2002. She stated that she called an architect with whom she had previously worked and asked him to draw plans for renovation of the apartment in order to combine it with the contiguous apartment creating a single large free market rental unit. On August 2, 2002 she entered into a [*2]contract with the architect and paid him $2,000.00 that same day. She testified that she was aware that plans had to be filed for the renovation and it would take four to six weeks to get the necessary permits. The plans were not actually filed until October 2002.

Ms. Sanz testified that she also spoke to a contractor at the beginning of August, and informed him that upon the expiration of the respondents' lease and the approval of the architect's plan, she wanted him to commence work. At that time she also contacted Dennis Hurley, a prospective tenant who had earlier filed an application for a large apartment.

Ms. Sanz admitted that while in Europe during the second half of August, she received a call from her office and was informed that Hayes did not want to surrender the apartment. Ms. Sanz also admitted that her office received two letters from Hayes regarding her intent to renew her lease; letters from Hayes dated August 22 and August 27, 2002, with proof of regular and certified mailings, were admitted into evidence.

Ms. Sanz showed the vacant next-door apartment to only one person, Dennis Hurley. Although he was unable to see the subject premises, Mr. Hurley signed a lease on August 9, 2002 with a monthly rent of $3,800.00. The lease was to commence on October 1, 2002, however, it was agreed that the commencement date could be delayed to November 1, 2002 due to construction.

Respondent Hayes testified that she and Andria lived in the subject premises for eleven years; he was her fiancé but they never married. At the time of the first renewal Hayes signed the lease and gave it to Andria to fill in, sign and return; this pattern was followed in subsequent renewals. At the time of the July 2001 renewal, Hayes testified that she and Andria discussed moving out as they weren't getting along, but she didn't want to give up either the apartment or the relationship. Hayes testified that she and Andria decided to stay in the apartment and work on their relationship. She also testified that over the years Andria frequently threatened to move out of the apartment when he was angry with her, but they always renewed their lease.

Hayes testified that on June 6, 2002 she received the renewal lease, but did not look at it for several weeks. On July 18, 2002, about one week before she was leaving for a teaching assignment in Maine, she signed the renewal and left it for Andria to fill in, sign and send back as was their practice throughout the tenancy. Hayes stated that at this point her relationship with Andria was not good and might be coming to an end. While Andria again threatened that he was leaving, he never said he wouldn't renew the lease.

Hayes testified that she spoke to Andria on August 15, 2002 in preparation for her return to New York. At that time he informed her that he had moved out of the apartment. When she told him she would have to find a new roommate to be able to afford the $1,300.00 monthly rent, he told her that he had given up the apartment. She immediately called the landlord and spoke to the man who answered the phone in the office; she said that there had been a mistake and she wanted to remain in her apartment. The man informed her that Ms. Sanz was not available and that an architect had been retained. Hayes sent two letters to Ms. Sanz, and had her attorney send a letter as well. All three letters, written prior to the expiration of the lease, are consistent with Hayes' testimony that she had no intention of surrendering her rights to the apartment.

Respondent Hayes testified that upon her return from Maine there was no evidence of a new tenant nor had any construction begun on the apartment next door. She then received a letter from Ms. Sanz notifying her that she had to move out of the apartment by August 31, 2002. [*3]

Respondent Hayes called Jane Comfort, a friend and colleague with whom she had been in Maine, as a witness. Ms. Comfort testified that on August 15, 2002, Hayes was late for the class they were supposed to teach. When Hayes arrived she was upset, trembling, and trying to control her tears.

Respondent Andria voluntarily appeared as a rebuttal witness for petitioner. Andria testified that in April or May 2002 he told Hayes that their relationship was over and he was moving out at the end of the lease. He testified that at first she was upset, but claimed she then stated that she also wanted to move. He confirmed that Hayes signed the renewal and left it for him to sign and return; he mailed it toward the end of July. Andria testified that he called the landlord's office to inform them of his decision not to renew; he moved out of the apartment at the beginning of August. Andria retained counsel for this proceeding and a discontinuance was filed. He admitted that when he fought with Hayes he told her that he wanted to leave the apartment. He also admitted that customarily Hayes signed the renewal and left it for him to fill in, sign and return to the landlord. Finally, he admitted that he unilaterally decided not to renew the lease and told Hayes to find a new apartment without him.

Dennis Hurley also testified on behalf of petitioner. Mr. Hurley, an officer of the New York City Police Department, testified that he first sought an apartment at the subject building in the Spring of 2002, although he had spoken to Ms. Sanz about an apartment six years ago. He received a call in August 2002 regarding the combined apartment, saw only the apartment next door to respondents' and signed a lease. Mr. Hurley stated that he first learned of a possible delay in taking occupancy of the combined apartment around Labor Day. Although he started to box his belongings at the end of September, he and his wife began looking for a different apartment.

Hayes asserts that she is not bound by Andria's unilateral decision not to renew the lease. Petitioner argues that respondents executed an irrevocable lease renewal indicating an intent not to renew the lease, and upon expiration of their lease term they no longer had a right to possession of the premises.

It is a well-settled equitable principle that Courts do not look favorably upon the forfeiture of leases. Sharp v Norwood, 223 A.D.2d 6 (1st Dep't 1996) aff'd 89 N.Y.2d 1068 (1997); see also, 57 East 54th Realty Corp. v Gay Nineties Realty Corp., 71 Misc.2d 353 (AT 1st Dep't 1972); 220 West 42nd Assoc. v Cohen, 60 Misc.2d 983 (AT 1st Dep't 1969). In particular, forfeitures are disfavored in relation to rent regulated tenancies. Jillandrea Realty Assoc.v Brown, 10/18/84 NYLJ 11:1 (AT 1st Dep't); Second 82nd Corp v Shapiro, 5/26/83 NYLJ 4:3 (AT 1st Dep't); 5700-5900 Arlington Ave. Assoc v Dogan, 135 Misc.2d 338 (Civ. Ct. Bx Cty 1987), Haley v Clayton, 106 Misc.2d 739 (Civ Ct NY Cty 1980). Equity will intervene to prevent a forfeiture arising out of a tenant's neglect or inadvertence in failing to timely exercise an option, especially where a landlord is not harmed by the delay in giving the notice and the tenant would sustain a substantial loss. Jillandrea Realty Assoc.v Brown, supra.

It is clear from Hayes' credible testimony that she had no intention of surrendering her rights to the subject rent-stabilized apartment that had been her home for eleven years. She relied on the long-established practice of signing the lease renewals and then having Andria sign and forward them to the landlord for processing. Hayes testified that throughout their relationship Andria often threatened to leave her and the apartment, but hadn't done so; even when threatening to leave, Andria never said he wouldn't renew the lease. Andria admitted that the [*4]decision not to renew the lease had been made unilaterally. The interest of a co-tenant is separate from and independent of the interests of other co-tenants. Hickland v Hickland, 100 A.D.2d 643 (3rd Dep't) mot for lv to app den 62 N.Y.2d 606 (1984); see also, In Re Moore, 16 A.D.2d 697 (2nd Dep't 1962). One tenant in common cannot make a lease binding on the others without their consent. Benetos v Kasampas, 9/26/01 NYLJ 18:2 (Sup. Ct. NY Cty.); Greiner-Maltz Co., Inc. v Stevens, 66 Misc.2d 79 (Sup. Ct. Nassau Cty. 1971).

Petitioner asserts it relied on the document signed by both parties electing not to renew the lease. Ms. Sanz testified that upon receiving the renewal declination, she contacted an architect as well as a contractor. Additionally, she called Dennis Hurley, a prospective tenant, who then signed a lease for the premises commencing upon the completion of the renovation. Petitioner relies on Livbros v Vandenburgh, 179 Misc.2d 736 (Civ. Ct. Kings Cty. 1999), which held that the act of non-renewal was clear and unequivocal, and respondent could not then retract his voluntary termination. . However, as noted in Livbros, a party may be relieved of its contractual obligations once unusual circumstances have been established. J.N.A. Realty Corp. v Cross Bay Chelsea, Inc., 42 N.Y.2d 392 (1977). A tenant is "entitled to the benefit of the rule or practice in equity which relieves against such forfeitures of valuable lease terms when default in notice has not prejudiced the landlord, and has resulted from an honest mistake, or similar excusable default." J.N.A. Realty Corp., id. at 398.

Petitioner argues that it relied upon respondents' act of non-renewal to their detriment. However, equity will intervene to prevent a forfeiture arising out of a tenant's neglect or inadvertence, especially where a landlord is not harmed by the delay and the tenant would be severely prejudiced. 5700-5900 Arlington Ave. Assoc v Dogan, supra, at 340. In the instant proceeding, Hayes immediately informed the petitioner of her true intention upon learning that her wish to renew the lease was subverted by Andria, without her knowledge or acquiescence. Hayes' phone call and letters, which petitioner acknowledged receiving, unequivocally stated her intention to renew the lease; they were admittedly received by petitioner prior to the expiration of the lease term. Failure to timely renew a lease is excusable, 67 8th Avenue Assoc. v Hochstadt, 88 A.D.2d 843 (1st Dep't 1982), and it is within the Court's discretion to avoid a forfeiture. Ambasz v Weitzner, 7/28/94 NYLJ 22:1(AT 1st Dep't). Here, as soon as Hayes learned that Andria had surrendered her rights to the apartment without her authorization, she notified petitioner. The architectural plans had not yet been filed, no permits for the work had been issued, the prospective new tenant had not surrendered his home or begun packing, and Hayes' lease term had not yet expired.

The hardship of the loss of the apartment must be weighed against the prejudice to the landlord. Here, there is no apparent prejudice other than the obvious financial advantage accruing from a vacancy. Jillandrea Realty Assoc.v Brown, supra.; Baja Realty, Inc. v Karoussos, 120 Misc.2d 824, 825 (AT 1st Dep't 1983); Ofman v Buckman, 8/17/90 NYLJ 24:2 (AT 2nd Dep't). Hayes' failure to timely convey to petitioner her intention to remain a tenant was not willful or deliberate, Rothschild v Valarezo, 6/10/91 NYLJ 32:2 (AT 1st Dep't), but rather a misplaced trust in her customary practice of delegating the task of renewal to Andria. Accordingly, this Court finds Hayes' long-term rent stabilized tenancy should be preserved, and further finds that she timely executed her lease renewal.

Accordingly, based on the relevant and credible testimony adduced at trial, the petition is [*5]dismissed with prejudice and the lease is deemed renewed as of July 28, 2002 for a period of one year commencing on September 1, 2002.

This constitutes the decision and order of the court. The parties are directed to pick up their exhibits from the clerk of the part within ten days of the date of this decision/order, copies of which are being mailed by the Court to the attorneys below.

Dated: New York, New York ______________________________

January 3, 2003 Michelle D. Schreiber, J.H.C.

Saul Bruh, Esq.

Kucker & Bruh

36 West 44th Street - Suite 415

New York, N.Y. 10036

(212) 869-5030

Jack Stoller, Esq.

Legal Aid Society

199 Water Street, 3rd Fl.

New York, N.Y. 10038

(212) 440-4243 Footnotes

Footnote 1: Trial was recorded at Tape N63515, Counter 1059-2707; Tape 63516, Counter 2768-5250.

Footnote 2: The Court gratefully acknowledges the assistance of Joyce Zimberg, Esq., Court Attorney, in the preparation of this decision.