Safonte v Garcia

[*1] Safonte v Garcia 2004 NY Slip Op 51384(U) Decided on October 22, 2004 Civil Court Of The City Of New York, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2004
Civil Court of the City of New York, Kings County

Joanne Safonte, Petitioner,

against

Pedro Garcia, Respondent



58346/04



Petitioner's counsel:

Robert R. Koeppel

32 Court Street

Brooklyn, NY 11201

Respondent's counsel:

Michelle E. Staco

189 Montague Street

Brooklyn, NY 11201

Gary F. Marton, J.

This nonpayment proceeding is predicated upon petitioner's claim to an increase in rent based on improvements to an individual apartment ("IAI") allegedly made in conformity with Rent Stabilization Code (9 NYCRR) § 2522.4(a)(1). After considering the testimony of the witnesses and the other evidence at the trial herein, the court grants respondent a judgment dismissing this proceeding.

Background

The premises at issue is a rent-stabilized apartment. Petitioner is the landlord and respondent is the tenant. In a prior nonpayment proceeding between the parties in this court under index number 53979/03, petitioner alleged that respondent owed $1,918.52, representing rent at the rate of $959.26 per month for the two months ending January 31, 2003. Acting pro se, respondent entered into a stipulation which the court "so ordered" on February 3, 2003. The parties agreed that respondent would pay $1,917.78 and that petitioner would inspect and repair as required by law a list of conditions for which repairs were claimed to be needed [FN1]. A marking on the court file jacket indicates that the court required the presence of a Spanish interpreter during the conferencing of the case and the allocuting of the stipulation; the stipulation bears the interpreter's signature.

Shortly thereafter, respondent retained counsel who moved to vacate the stipulation and to interpose a defense, among others, of rent overcharge. By a two-attorney stipulation "so ordered" on March 26, 2003 petitioner agreed that the legal rent for the premises was $907.89 [*2]per month, that respondent would receive a credit of $956.70 for prior overcharges, and that petitioner would register the legal rents for the years 2000 through 2002 with the State of New York's Division of Housing and Community Renewal ("DHCR"). Petitioner also agreed to complete the repairs required by the prior stipulation and to make other repairs as well [FN2]. Repairs were to begin five days later, on March 31, 2003 [FN3].

Petitioner did not begin five days later to make the stipulated repairs. Instead, petitioner's agent, Tony Safonte, proposed to respondent that in lieu thereof, petitioner would renovate the kitchen, bathroom, entrance and foyer, and put in new ceilings and floors; in return, respondent would pay an increase in rent. The agent testified that respondent agreed to the same, and manifested his agreement by co-signing petitioner's application to DHCR for an IAI increase. The agent also testified that he explained the same to respondent in Spanish and that he (i.e., the agent) knew enough Spanish to do so.

The application to DHCR is dated April 9, 2003. Less than accurately, it states that respondent requested the proposed work. The application recites that the work would cost $19,152.00 and that respondent's rent would increase by one-fortieth of the cost of the work, i.e., by $478.80 to $1,386.69 per month. Unlike the renewal lease dated March 28, 2003 (see footnote 3, above), the application to DHCR did not refer to the litigation that the parties had settled two weeks before.

Thereafter, petitioner notified respondent by letter dated November 20, 2003 that as of December 1, 2003 his rent would increase due to the renovations, that the legal maximum was $1,386.69, but that because "you are a good tenant you are being offered [a] preferential rent of $1,200.00 per month."

This Proceeding

Respondent did not pay the IAI increase and petitioner began this proceeding in February, 2004. Petitioner claimed that the rent for the premises was $1,200.00 per month and that respondent owed the rent for February, 2004 and a pre-existing balance of $582.30 [FN4]. Respondent defended on the ground that he was not bound by the application to DHCR for the increase. He testified that while he may have signed the application, he did not understand what it meant and in particular he did not understand that it meant that he was agreeing to a substantial [*3]increase in rent.

The court finds that this testimony of respondent's was credible and that he did not knowingly agree to give up either his right to the stipulated repairs or to the $907.89 monthly rent reserved under the "so ordered" stipulation and the then-current lease. The court gives no probative weight to petitioner's agent's testimony that he explained in Spanish his proposal to increase the rent and to substitute renovations for the promised repairs. The agent made no showing of his knowledge of Spanish or of any education in that language. However, the court does infer from this testimony that petitioner knew that an explanation in English would be inadequate under the circumstances.

Ordinarily, a party may not avoid the obligations of a contract or other agreement simply because he is not familiar with the language in which it is written; the party has the obligation to have the agreement translated or otherwise explained to him. Sofio v Hughes, 162 AD2d 518 (2nd Dep't, 1980). However, to allow this rule to dictate the result here would permit petitioner to use respondent's ignorance to put at nought very shortly after its making the allocuted stipulation negotiated by counsel on behalf of an unsophisticated client whose command of English was weak. To uphold here petitioner's claim to an IAI increase would sustain petitioner's use of an out-of-court agreement to circumvent a recently made in-court agreement that conformed to CPLR 2104 and that the court "so ordered" only after it was evident that adequate safeguards were in place.

Accordingly, the court dismisses with prejudice petitioner's claim for the IAI increase. In view of the magnitude of the discrepancy between the amount sought and the amount, if any, actually at issue at the commencement of this proceeding [FN5], the court dismisses the remainder of the petition without prejudice (see Hegeman Asset LLC v Smith, 5 Misc 3d 8 [App Term, 2nd & 11th Jud Dists, 2004][a petition containing material misstatements should be dismissed as a matter of equity]; 275 Linden Realty Corp v Carabella, Misc 3d , 2004 NY Slip Op 24259 [App Term, 2nd & 11th Jud Dists][nonpayment petition dismissed in its entirety because it included a fraudulent claim for an IAI increase]).

In light of this result, the court declines to assess the probative value of the documents and the testimony that petitioner offered to prove the alleged expenditure of $19,152.00, and the court declines to reach respondent's defense of breach of the warranty of habitability.

The court attorney will mail copies of this decision and order to the parties, and they shall contact him to arrange for the return of their exhibits.

DATED: October 22, 2004 [*4]

Brooklyn, New York

GARY F. MARTON, J.H.C. Footnotes

Footnote 1:In the stipulation, petitioner agreed "to inspect and repair as legally required respondent's bathroom walls, painting, plastering in bathroom & mildew in bedroom and kitchen cabinets & stove."

Footnote 2:The stipulation describes the additional repairs as "mold in bathroom & small bathroom debris in vestibule exterminate & holes in wall."

Footnote 3:Additionally, the parties entered into a lease renewal dated March 28, 2003. This document specifically refers to the settlement of the litigation; the renewal provides that the monthly rent for the premises was $907.89 for the two year period ending June 30, 2004, and it states that it was made "AS PER COURT STIP OF 3/26/2003 - INDEX # 53979/03."

Footnote 4:The $582.30 appears to consist almost entirely of the difference between what respondent paid and what petitioner claimed was due for December, 2003 and January, 2004, i.e., approximately the total of the claimed IAI increases for these two months.

Footnote 5:The amount sought was approximately equal to the sum of the claimed IAI increases for December 2003, January 2004, and February, 2004 plus $907.89 for February, 2004. Since respondent was willing to pay the $907.89 and the court will not award the IAI increases, it may be that nothing remains in dispute.