81 Baxter LLC v Shen

[*1] 81 Baxter LLC v Shen 2005 NY Slip Op 52309(U) [12 Misc 3d 1185(A)] Decided on October 18, 2005 Civil Court, New York County Gesmer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
Civil Court, New York County

81 Baxter LLC, Plaintiff,

against

Jennie Shen, WEN HUA XU and AMA GALLERY, INC., Defendants.



11482CV05

Ellen Gesmer, J.

In this action, plaintiff is suing for rental arrears and for future rent payments allegedly due to it under its lease with defendants. Defendants interposed a pro se answer which, broadly read, stated a defense of constructive eviction. The matter came on for trial on October 12, 2005.

Before trial, plaintiff made an oral motion to withdraw its second cause of action, because that cause of action sought future rent in excess of the jurisdictional limit of this Court. Defendants had no objection, and the Court permitted plaintiff to withdraw the second cause of action. Plaintiff also made an oral application to increase the amount sought in the complaint to $25,000.00, to include the reasonable value of its attorneys' fees, to which it claims to be entitled under the lease between the parties. Defendants also had no objection to this application, and the Court permitted plaintiff to increase the amount sought in the complaint to $25,000.00.

On October 12, defendants Shen and Xu each appeared pro se. In addition, Ms. Shen advised me that she was appearing on behalf of defendant Ama Gallery, Inc. I then reviewed the court file which shows that, on September 20, 2005, the case was marked final against the defendants and adjourned to October 12 so that defendants could obtain counsel. I advised Ms. Shen that, since Ama Gallery, Inc. is a corporation, it must be represented by an attorney. Accordingly, I stated on the record that Ama Gallery, Inc. was in default, and I would treat the [*2]trial as an inquest against defendant Ama Gallery, Inc.[FN1]

TESTIMONY AT TRIAL

Plaintiff's prima facie case

At trial, the parties stipulated to the admissibility of certain documents and to the truth of certain facts. Plaintiff then presented the testimony of Michael Chu, a member of plaintiff 81 Baxter Street, LLC, with regard to its case in chief, and the testimony of its attorney, Oleh Dekajlo, with respect to the attorneys' fees incurred by plaintiff.

From the stipulated facts and documents and Mr. Chu's testimony, plaintiff established the following facts: Plaintiff entered into a lease, on or about December 1, 2002 (the Lease), with defendants to rent the North Store (the Store) at 81 Baxter St, New York, New York for the five year period beginning on December 1, 2002. Although the Lease describes the "Tenant" as "Wen Hua Xu and Jennie Shen d/b/a AMA Gallery, Inc.," it is signed only by Wen Hua Xu and Jennie Shen; there is no signature line for AMA Gallery, Inc. Defendants had rented the Store for the previous 13 years. Prior to December 2004, defendants had always paid their rent on time. However, defendants did not pay rent for December 2004 or January or February 2005. As of February 1, 2005, the rent due totaled $20,765.74. On February 10, 2005, plaintiff received a letter from defendants, dated February 4, 2005, stating that they were surrendering the Store and that they had returned the keys under separate cover. By letter dated February 11, 2005, plaintiff advised defendants that it did not accept their surrender of the Store.

Plaintiff retained the firm of Burns Dekajlo and Castro, which agreed to represent plaintiff at the reduced rate of $300.00. Plaintiff's counsel spent approximately 20 hours on this matter, including the time spent at trial.

I find that plaintiff established its prima facie case that defendants Wen Hua Xu and Jennie Shen are jointly and severally liable to it, under the Lease, for rental arrears in the amount of $20,765.74. I further find that defendants are liable to plaintiff, under paragraph 20 of the Lease, for the reasonable attorneys' fees incurred by plaintiff, which exceed $6,000.00. Plaintiff's counsel agreed to reduce the amount of attorneys' fees sought so that the amount at issue would not exceed $25,000.00. Therefore, I find that plaintiff made out a prima facie case that defendants Xu and Shen are liable to it in the amount of $25,000.00. I further find that plaintiff failed to establish a case as against AMA Gallery, Inc., since the Lease was not signed on behalf of AMA Gallery, Inc.

[*3]Defendants' case

Defendants Shen and Xu each testified. They essentially attempted to present a defense of constructive eviction, claiming that plaintiff threatened them, and turned off the electricity and the water in the Store. For the reasons set forth below, I reject this defense.

The parties stipulated that the defendants were without electricity in the Store on Dec. 29, 2004 from approximately 3:30 to 6:30 pm. Ms. Shen testified consistently with this. In his rebuttal case, Mr. Chu explained that defendants called him on December 29 and complained that they had no electricity. He testified that he promptly called the superintendent and left a message asking that the superintendent restore the defendants' electricity. Having not heard from the superintendent, Mr. Chu himself went to the Store at the end of his work day, found that the circuit breaker had been triggered, and turned it back on. Defendants did not claim or prove that they were without electricity at any other time. I do not find that the three hour interruption in electrical service constitutes constructive eviction.

Ms. Shen testified that the Store was without water service from December 29, 2004 until they vacated the Store in early February. She further testified that she complained about this to Mr. Chu on December 29, but did not complain after that because he would not have done anything. She claims that she complained to the police about the lack of water on January 11, but she did not produce any proof of this complaint. Similarly, Mr. Xu testified that they did not complain to the landlord about not having water because they had no way to reach him and that he would not have fixed it anyway. I do not find their testimony credible. In view of Ms. Shen's admission that she complained about the interruption in electrical service as soon as it happened and that Mr. Chu then promptly remedied it, I do not find credible either Mr. Xu's testimony that they did not know how to reach the landlord and that contacting him would have been futile, or Ms. Shen's testimony that she did not complain for over a month that they had no water. Mr. Chu testified that the sink in the Store was without water for one day in January because of work being done in the basement of the Building, but that defendants had access during that time to the common bathroom in which water service was not interrupted. Consequently, I find that the defendants were deprived of water service in the sink in the Store for only part of one day in January. I find however that, during that brief period, they still had access to water in the common bathroom. Moreover, under paragraph 14 of the Lease, defendants are not entitled to any abatement in rent for the period when they were without water since the interruption was the result of repairs being performed by plaintiff.

Finally, defendants seem to claim that they were constructively evicted from the Store because plaintiff harassed them. They claimed two specific incidents of harassment, apart from the interruption of electrical service and water. Ms. Shen testified that, on December 29, Mr. Chu told them that he would change the lock on January 2, 2005 if they did not pay their rent, but she conceded that he did not in fact change the lock. While the Court does not condone the practice of making threats, the Court finds that Mr. Chen's statement does not, by itself, constitute constructive eviction. Secondly, Ms. Shen complained that, on or about January 15, 2005, Mr. Chu served them with a rent demand seeking more rent than was actually owed. [*4]However, I find that the rent demand was proper.

Consequently, I find that defendants did not prove a defense of constructive eviction or any other defense to plaintiff's claim for rent. Indeed, Ms. Shen testified that they did not pay the rent because business was bad and they did not have the money.

CONCLUSION

Judgment shall enter for plaintiff and against defendants Jennie Shen and Wen Hua Xu in the amount of $25,000.00, plus interest from February 1, 2005, and costs. The claim is dismissed against defendant AMA Gallery, Inc.

Dated: October 18, 2005_________________

ELLEN GESMER

Judge, Civil Court Footnotes

Footnote 1:In fact, on reviewing the court file, I observed that the answer filed on behalf of defendants was signed by Ms. Shen and Mr. Xu, each acting pro se, and by Ms. Shen, on behalf of defendant Ama Gallery, Inc. Since Ms. Shen is not an attorney, she was not authorized to file the answer on behalf of the corporate defendant, and Ama Gallery, Inc. should have been treated as being in default upon expiration of its time to file an answer.