East Sterling Realty v Abel
Annotate this CaseDecided on August 18, 2004
Civil Court of the City of New York, Kings County
EAST STERLING REALTY, Petitioner,
against
VERNA ABEL / KAREN THOMAS, Respondents.
100744/03
George M. Heymann, J.
Petitioner commenced this non payment proceeding against the respondent Verna Abel in October, 2003. On April 24, 2004, petitioner entered into a "so ordered" stipulation with Karen Thomas which, in relevant part, contained the following provisions:
"3. Petitioner agrees to accept 'Karen Thomas' as the new tenant. Karen Thomas acknowledges that the prior tenant has vacated.
"4. Respondent, Karen Thomas agrees to sign a new lease including rent increase.
"5. Petition is amended to reflect 'Karen Thomas' as the respondent."
On May 1, 2004, Ms. Thomas entered into a two year, rent stabilized, lease with the petitioner agreeing to pay a monthly rent of $1,000.
Respondent now moves this Court for an order 1) staying execution of the warrant of eviction and extending the time within which the respondent can pay her rent arrears; and 2) directing the petitioner to provide respondent with a "lawful lease" pursuant to the stipulation dated April 20, 2004 to enable the respondent to apply for Jiggett's relief.
The petitioner did not submit formal opposition papers to the instant motion.
During an "off the record" bench conference with the attorneys for both parties, respondent's counsel argued that petitioner be precluded from opposing the motion citing 4117 15th Ave. Realty Corp. V. Hornedo, 184 Misc 2d 986, 712 N.Y.S.2d 304 (AT 2nd Dept). The petitioner argued that there was no need to submit opposition papers in that it was sufficient to orally oppose the motion, especially since it had lived up to its obligations by providing the respondent with a rent stabilized lease, which respondent duly executed.
The Court notes that it is not required to preclude petitioner's opposition to the motion, notwithstanding the failure to provide written opposition papers. In Hornedo, Id.at 987, 305, relied on by respondent, the court stated: "Upon landlord's failure to submit papers in [*2]opposition to tenant's motion, the Housing Court could properly preclude landlord from arguing in opposition to the motion..." (Emphasis added) Clearly, the use of the word "could" as opposed to "shall" or "must" does not mandate preclusion, but makes it discretionary with the Court. Notwithstanding petitioner's failure to submit opposition papers, the Court finds that the moving papers are insufficient to warrant the relief sought therein.
The crux of respondent's motion is that the petitioner acted in bad faith by not providing her with a lease that reflects the lawful rent. Respondent alleges that petitioner took a vacancy increase more than double what it was legally allowed to take plus a 1/40th increase for major capital improvements (MCI).
Upon review of the motion papers and exhibits attached thereto, the second branch of the motion to compel the petitioner to provide respondent with a "lawful lease" is denied. Petitioner provided respondent with a standard rent stabilized lease agreement as it had agreed to do. The stipulation made it clear that the new lease would contain a "rent increase", although it was silent as to how much the new rent would be. Respondent had ample opportunity to question the amount of the new rent prior to signing the lease. Having not only lived with the prior tenant before executing said new lease, she was fully apprised of what the previous rent was, especially since it was set forth in the petition and stipulation itself. Moreover, aside from mere conclusory statements by the respondent's attorney (i.e.: that "petitioner has not done any work in the apartment that amounted to anything more than normal maintenance"), there is no supporting affidavit from the respondent, herself, to verify any of the allegations of her attorney or to enlighten the Court as to the circumstances surrounding her signing the lease (i.e.: did the petitioner give the respondent an explanation or breakdown as to how the new rent was derived at?) At this juncture, if the respondent believes that there is an overcharge she can file a complaint with the Division of Housing and Community Renewal (DHCR) which maintains all the appropriate records for making such a determination.
As to the first branch of the motion seeking additional time to pay the balance of arrears, the execution of the warrant is stayed through August 31, 2004 for respondent to either pay the outstanding balance of arrears, or to prove payment of same to the landlord.
Accordingly, the first branch of the motion for an extension of time to pay is granted as indicated above, and the second branch to compel the petitioner to provide respondent a lawful lease is denied.
This constitutes the decision and order of the Court.
Dated: August 18, 2004
GEORGE M. HEYMANN, J.H.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
