562 W. 149th St. HDFC v Rodriguez
Annotate this CaseDecided on September 29, 2004
Civil Court, New York County
562 WEST 149TH STREET HDFC, Petitioner,
against
DOROTHY RODRIGUEZ and RAYMOND RODRIGUEZ, Respondents.
72197/2004
Gerald Lebovits, J.
Petitioner commenced this holdover proceeding against respondents Dorothy Rodriguez and Raymond Rodriguez based on Ms. Rodriguez's alleged failure to sign and return a written lease agreement. Ms. Rodriguez has not appeared in this proceeding, but Raymond Rodriguez, her son, has answered with eight affirmative defenses and five counterclaims. Petitioner now moves to dismiss all the counterclaims and affirmative defenses that respondent alleges in his answer. Mr. Rodriguez (hereinafter "respondent") cross-moves to dismiss the petition on various grounds and requests sanctions under Part 130 of the Rules of the Chief Administrator of the Courts.
Respondent alleges in his first affirmative defense that this court lacks subject matter jurisdiction over this proceeding. The 30-day notice terminating respondent's month-to-month tenancy was executed pursuant to an order from petitioner's board of directors in this cooperative [*2]building. Respondent argues that the termination notice is invalid because the board of director's order that authorized Roger Anderson, its managing agent, to act as petitioner's agent is not annexed to the notice and because petitioner did not notarize the authorization. Respondent contends that because petitioner's agent's authority was not adequately set forth in the notice, the notice is invalid. Petitioner responds that the written authorization that gave Anderson the authority to terminate the tenancy is annexed to the termination notice. Petitioner further argues that the authorization did not have to be notarized to be legally effective. After reviewing the pleadings, the court notes that a copy of the written authorization is annexed to the copy of the petition and notice of petition filed with the court. The written authorization is signed by the president of petitioner's board of directors and by Anderson as petitioner's designated agent.
Petitioner alleges that respondent had actual notice through prior dealings with Anderson that Anderson is petitioner's authorized agent. First, petitioner directs the court to Exhibit "A" in respondent's cross-motion to dismiss that respondent claims is from the building managers. Exhibit "A" is a letter from petitioner's building managers addressed to respondent. Anderson is one of the building managers. Second, petitioner points to paragraph 2 of respondent's affirmation in support of his motion to dismiss, in which respondent claims that he requested a lease from Anderson. Third, petitioner submits as Exhibit "D" a petition from respondent's Housing Part (HP) proceeding that respondent brought against petitioner and Anderson.
Petitioner's motion to dismiss respondent's first affirmative defense is granted. A termination notice signed by an agent of the landlord must be accompanied by a written authorization unless the tenant who receives the termination notice is aware of the agent's authority through prior interactions. (See 54-55 St. Co. v Torres, 171 Misc 2d 237, 238 [App Term, 1st Dept 1997, per curiam] [holding that failure to include landlord's authorization with termination notice is not fatal if tenant is aware of agent and agent's authority to bind landlord].) The tenant must have notice of the agency relationship between the landlord and its agent so that the tenant may be assured that the notice emanates from the landlord and so the tenant is not exposed to liability for vacating the premises prematurely. (See e.g. Second & E. 82 Realty LLC v 82nd St. Gily Corp., 192 Misc 2d 55, 59 [Civ Ct, NY County 2002] [stating that reason for requiring that agent's authorization be apparent is that tenants can rely on agent's notice].) In this case, respondent could rely on the termination notice because the authorization annexed to the notice apprised respondent that the termination notice came from the landlord's authorized agent. It is also clear from the papers respondent submitted that he was aware of the agency relationship because of previous interactions with Anderson as petitioner's agent.
Respondent argues in his second affirmative defense that petitioner failed to state a cause of action on which relief may be sought. The court must look to the pleadings, accept petitioner's allegations as true, and determine whether a cognizable cause of action is among the facts alleged. (See Leon v Martinez, 84 NY2d 83, 87-88 [1994].) Petitioner alleges that Ms. Rodriguez had an oral agreement with petitioner that she would be the month-to-month tenant of record in the apartment and that her son, Raymond Rodriguez, would be the authorized occupant. Petitioner further alleges that it provided a written lease agreement to Dorothy Rodriguez in January 2004, that she failed to sign and return the written lease, and that her failure to sign the written lease is the reason petitioner served respondents with a 30-day notice [*3]terminating her month-to-month tenancy. Respondent alleges that there was no oral agreement between Ms. Rodriguez and petitioner and that he is the tenant of record. Respondent claims that this holdover proceeding was commenced in retaliation for the complaints he made about the allegedly hazardous conditions in the apartment and his request for documentation to complete an application for Senior Citizen Rent Increase Exemption (SCRIE) benefits. Petitioner's allegations establish that a termination notice sent to respondents ended the tenancy and that respondent has continued in possession after Ms. Rodriguez's tenancy terminated. Petitioner has alleged facts sufficient to state a cause of action. Petitioner's motion to dismiss respondent's second affirmative defense is granted.
Respondent argues in his third affirmative defense that petitioner may not maintain this holdover proceeding because according to respondent, petitioner did not set forth in the termination notice the lawful grounds to terminate the tenancy. Respondent asserts that the premises is subject to Article 11 of the Private Housing Finance Law and General Business Law § 325-eeee and that respondent is entitled to the protection and benefits of the Private Housing Finance Law because he is a low-income individual. Respondent cites 512 East 11th Street HDFC v Grimmet (181 AD2d 488 [1st Dept 1992, mem]) for the proposition that the petition should be dismissed because due process requires petitioner to have provided respondent with the reasons petitioner is attempting to terminate the tenancy. Petitioner's stated reason for terminating Ms. Rodriguez's month-to-month tenancy is that she failed to sign and return the written lease. This reason is in the termination notice that petitioner sent to respondents.
The Grimmet court held that the petitioner landlord was sufficiently "entwined" with governmental action "so as to trigger constitutional due process protections requiring notice of the reasons for" terminating the tenancy. (Id. at 489.) The parties concede that, as in Grimmet, the subject premises was converted to a non-profit charitable cooperative ownership. Petitioner is sufficiently entwined with the government that due process protections are implicated. Due process requires that petitioner give notice to respondent of the reasons for terminating the tenancy. Petitioner satisfied due process by including the reason for terminating the tenancy in the termination notice, in the petition, and in the notice of petition served on both respondents. Due process protections run only to the tenant of record. (See 757 E. 169th St. HDFC v Haney, 171 Misc 2d 965, 966-967 [Hous Part, Civ Ct, NY County 1996].) The parties dispute who is the true tenant of record. Nevertheless, petitioner served both respondents with the termination notice. The court need not determine who is the tenant of record to dispose of the due-process issue. Petitioner did not violate respondent's due-process rights. Petitioner's motion to dismiss respondent's third affirmative defense is therefore granted.
Petitioner's motion to dismiss respondent's fourth affirmative defense and first counterclaim is granted. Respondent alleges in his fourth affirmative defense and first counterclaim that he suffered damages totaling $20,000 because petitioner violated his constitutional rights. Respondent points to the same facts alleged in his third affirmative defense to establish that petitioner violated his constitutional rights. Petitioner satisfied respondent's due-process rights by including in the termination notice the reason for the terminating the tenancy. [*4]
Petitioner's motion to dismiss respondent's fifth and sixth affirmative defenses and second and third counterclaims is denied. Respondent asserts in his fifth and sixth affirmative defenses and second and third counterclaims that this holdover proceeding is a retaliatory eviction under RPL § 223-b. Respondent also claims damages in the amount of $20,000 for petitioner's retaliatory eviction. Under RPL § 223-b (1) (a), a landlord may not seek to evict a tenant in retaliation for complaints to a governmental authority regarding either rent gouging or alleged hazardous conditions. Under RPL § 223-b (1) (b), a landlord may not seek to evict a tenant in retaliation for the tenant's taking actions in good faith to enforce rights under law or the lease.
Petitioner's motion to dismiss respondent's fifth and sixth affirmative defenses and second and third counterclaims is denied. Respondent alleges that this holdover proceeding is in retaliation for his complaints about conditions in the apartment and for his request for documents he claimed he needed to obtain so he could file for SCRIE benefits. Petitioner maintains that this proceeding was commenced because Ms. Rodriguez failed to sign and return a written lease agreement. Petitioner also denies that respondent made any request for documents remain to be resolved at trial; they preclude granting that part of petitioner's motion to dismiss respondent's affirmative defense and counterclaim of retaliatory eviction. (See generally Gold Coast Equestrian Ctr., Inc. v Ramirez, 113 Misc 2d 197, 199 [Dist Ct, Nassau County 1975] [denying petitioner's motion to dismiss respondent's affirmative defense of retaliatory eviction because contested issues of fact required trial].)
Respondent alleges in his fifth and sixth affirmative defenses and second and third counterclaims that petitioner has attempted to engage in rent gouging. Petitioner sent Ms. Rodriguez a proposed lease with a monthly rent of $1500. The Penal Law defines rent gouging as a landlord's charging a tenant more than the "lawful rent and other lawful charges." (PL §§ 180.55, 180.56, 180.57.) A necessary element to establish rent gouging is that a landlord accept or demand the unlawful charges while telling the tenant that by paying the additional money, the possibility increases that the tenant may obtain a lease, or use of the property, or that a failure to pay the additional amount will decrease the possibility that the tenant will obtain a lease or use of the property. (PL §§ 180.55, 180.56, 180.57.) Lawful rent is defined as "registered, reported or contracted for rent." (PL § 180.54.) Petitioner alleges that the rent established by the oral agreement between petitioner and Ms. Rodriguez does not fit within this definition. Respondent asserts that the contracted monthly rent was $400 per month and that the proposed lease set a monthly rent of $1500 a month, a 375% increase. Petitioner argues that the proposed lease was not a demand for additional consideration above the agreed rent but, rather, petitioner's offer to enter into a written lease agreement with Ms. Rodriguez. The terms of the agreement between the parties must be established at trial to determine whether the $400 a month respondent was paying was lawful rent. Petitioner's motion to dismiss respondent's fifth and sixth affirmative defenses and second and third counterclaims is denied. Petitioner's proposed rent increase is not a defense to this holdover, but respondent's defense might affect use and occupancy owed or owing.
Respondent claims in his seventh affirmative defense and fourth counterclaim that he is entitled to an abatement of $15,000 for alleged hazardous conditions in the subject apartment. [*5]Respondent alleges that he notified petitioner about the conditions and that no corrections have been made. Petitioner denies that respondent gave petitioner notice of hazardous conditions. Petitioner argues that respondent may not maintain this affirmative defense and counterclaim as an authorized occupant because according to petitioner, respondent is not the tenant of record and because he has no obligation to pay rent. (See Westway Plaza Assoc. v Doe, 179 AD2d 408, 410 [1st Dept 1992, mem] [holding that paying rent is prerequisite to asserting claim under RPL § 235-b for rent abatement].) Respondent contends that he is the tenant and may maintain the affirmative defense and counterclaim for a rent abatement due to breach of the warranty of habitability. The parties' contradictory positions preclude this court from granting petitioner's motion to dismiss. Issues of fact must be determined at trial.
In respondent's eighth affirmative defense and fifth counterclaim, he requests an order directing petitioner to complete the repairs of the dangerous and defective conditions that respondent alleges exist. Petitioner contends that respondent chose his remedy when he commenced a Housing Part (HP) proceeding against petitioner in July 2004 to remedy the alleged conditions. Petitioner argues that respondent should therefore be precluded from asserting the defense in this action. This court is not precluded from deciding the issue of dangerous or hazardous conditions in this holdover proceeding. A stipulation entered into on July 27, 2004, obligated petitioner to correct the violations found as a result of a court-ordered inspection. Petitioner alleges that the corrections in the stipulation have been completed, but respondent disagrees. The factual dispute between the parties over the status of the repairs precludes dismissing respondent's eighth affirmative defense and fifth counterclaim.
Respondent's cross-motion to dismiss the petition is denied. Respondent argues that the petition should be dismissed because the petition and notice of petition were improperly verified. Petitioner contends that the petition was properly verified and that even if it was improperly verified, respondent did not timely reject the petition. CPLR 3022 allows a party to treat an unverified pleading as a nullity if the receiving party notifies the other party to the litigation with due diligence. Neither the Legislature nor the Court of Appeals has defined the phrase "due diligence." (See Matter of Miller v Bd. of Assessors, 91 NY2d 82, 86 n 3 [1997].) Some courts have held that the respondent must reject the petition within 24 hours. (See e.g. Lentlie v Egan, 94 AD2d 839, 840 [3d Dept 1983, mem].) Other courts have made the determination based on the circumstances of the case. (See e.g. Theodoridis v American Transit Ins. Co., 210 AD2d 397, 397 [2d Dept 1994, mem] [holding that party's failure to give notice within 24 hours under circumstances resulted in waiver].) A pleading's verification is part of that pleading and will be ignored if a party is not prejudiced. (See SLG Graybar, LLC v John Hannaway Law Offices, 182 Misc 2d 217, 221 [Civ Ct, NY County 1999].)
Petitioner served respondents with the petition and notice of petition on May 26, 2004. Respondent's answer did not expressly address whether the petition and notice of petition were improperly verified. Respondent first raised the defense of improper verification 46 days later—on July 10, 2004—in his cross-motion to dismiss. Respondent does not contend that the alleged improper verification resulted in any prejudice to himself. Respondent did not notify petitioner of the defective verification with due diligence. Any defective verification of the petition and notice of petition is deemed waived. Whether the petition was properly verified is [*6]academic. Respondent's motion to dismiss the petition for defective verification is therefore denied.
Respondent's cross-motion to impose sanctions against petitioner for frivolous conduct under section 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR 130.1-1) is denied. Frivolous conduct is defined as (1) a legal argument "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; (2) conduct "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or (3) asserting materially false factual statements. (22 NYCRR 130.1-1 [c] [1-3].) Respondent has not established that petitioner's allegations are completely without merit in law. Respondent has not provided any evidence that the proceeding was brought primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure respondent. Respondent has not established that petitioner has asserted materially false facts. Respondent has not provided any proof of the type of conduct required to impose sanctions against petitioner under 22 NYCRR 130.1-1.
This proceeding is adjourned for trial to October 13, 2004.
This opinion is the court's decision and order.
Dated: September 29, 2004
J.H.C.
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