156-158 Second Ave., LLC v Delfino
Annotate this CaseDecided on February 22, 2008
Civil Court of the City of New York, New York County
156-158 Second Avenue, LLC, Petitioner Landlord,
against
Michael Delfino, Respondent-Tenant, -and- Mark A. Marroletti "John Doe" and "Jane Doe", Respondent-Undertenants.
L & T 079258/2006
Cornicello & Tendler, LLP
Attorneys for Petitioner
116 John Street
Suite 2501
New York, New York, 10038
by: David B. Tendler, Esq.
African Services Committee
Attorney for Respondent
429 W. 127 Street
New York, New York 10027
by: Chitra Aiyar, Esq.
David B. Cohen, J.
In this residential holdover proceeding, petitioner-landlord seeks possession of Apartment 2B (the "apartment"), a rent stabilized apartment located at 156 Second Avenue, New York, New York, 10003 (the "premises"), on grounds that the tenant of record, respondent Michael Delfino, overcharged his roommate for the use of the apartment in violation of Rent Stabilization Code ("RSC") [9 NYCRR] § 2525.7.
Respondent moves for summary judgment pursuant to CPLR 3212 (b), claiming that his
rent-sharing arrangement did not rise to the level of profiteering and that the court lacks subject
matter jurisdiction on grounds that a Notice to Cure was required. Petitioner opposes and
cross-moves for leave to conduct discovery.
Factual and Procedural History
Respondent has been the rent stabilized tenant of Apartment 2B, a three bedroom unit, since [*2]December 1, 1993. The most recent renewal of his lease was on September 1, 2005,[FN1] for which the legal monthly rent was $2,556.79. Respondent alleged that, in the same year, both of his roommates moved out of the apartment and, despite his efforts, respondent was unable to find suitable replacements until January 2006, when he found one roommate who was willing to pay more than half the rent in consideration for his occupancy of two of the three bedrooms. When this roommate moved out in December 2006, according to respondent, his current roommate, William A. Marroletti,[FN2] moved in under a similar arrangement to that of the previous roommate. Respondent claims that Mr. Marroletti agreed to pay a greater portion of the rent in consideration for his occupancy of two of the three bedrooms within the apartment. Of the legal rent, $2,556.79, respondent stated that he paid $1,057 per month whereas Mr. Marroletti paid $1,500 in cash to respondent. Mr. Marroletti's payments were then converted into two money orders of $1,000 and $500 and forwarded to the landlord each month.
Respondent claims that he is unable to work due to a chronic disability, for which he receives rental assistance of $1,057 from the New York City Human Resources Administration ("HRA"). According to respondent, HRA pays directly to petitioner in two monthly installments of $528.50 to cover respondent's portion of the rent.
In the summer of 2006, respondent fell into arrears and petitioner commenced a nonpayment proceeding on or about September 11, 2006 seeking $6,131.90 in rent.[FN3] Respondent answered on September 20, 2006, seeking time to pay the arrears, and the nonpayment proceeding was calendared for September 28, 2006. On September 28, 2006, the parties appeared in court and entered into a Stipulation of Settlement in which the parties consented to a final judgment in the amount of $6,131.90 with a Warrant of Eviction to issue forthwith and execution stayed through October 31, 2006 upon the condition that respondent pay the October 2006 rent by October 10, 2006 and the arrears by October 31, 2006. Respondent defaulted under this Stipulation and brought six Orders to Show Cause to stay execution of the Warrant of Eviction. The matter came before the court on December 27, 2006 (the "December 27th Court Appearance"), in which respondent's rent-sharing arrangement was discussed for the first time. The court informed respondent that the arrangement may possibly be a violation of RSC § 2525.7. On March 26, 2007, petitioner and respondent executed a Stipulation of Settlement (the "March 26th Stipulation") in which respondent conceded to having a roommate named "William Marroletti" who had been paying a monthly rent of $1,500 since January 2007. Neither the Stipulation nor the transcripts reflect how the bedrooms were divided between respondent and his roommate.
On or about June 21, 2007, petitioner served a Ten Day Notice of Termination of Tenancy and Intention to Recover Possession ("Termination Notice") based upon respondent's concession in the March 26th Stipulation and upon its allegation that respondent's rent-sharing arrangement with his roommate constituted rent gouging prohibited by RSC § 2525.7. No predicate Notice to Cure [*3]was served upon respondent. Respondent continued to remain in possession of the apartment through the expiration of the Termination Notice and, on or about July 19, 2007, petitioner commenced this proceeding.
Respondent now moves for summary judgment, arguing, among other things, that his
rent-sharing arrangement did not rise to the level of profiteering, that he was unaware and
uninformed by the landlord that it may be construed as such, and that he was not served with a
Notice to Cure. Respondent claims that his rent-sharing arrangement, in which Mr. Marroletti
paid approximately 58% of the total legal rent, did not constitute profiteering and that it was an
insubstantial overcharge that was entirely reasonable upon consideration of Mr. Marroletti
renting two of the three bedrooms within the apartment. Thus, even if deemed to be an
overcharge under RSC § 2525.7, respondent claims it to be an offense that is wholly
curable and for which a predicate Notice to Cure must have been served. Petitioner justifies its
failure to send to respondent a predicate Notice to Cure claiming that the overcharges constituted
profiteering, which is an incurable offense.
Conclusions of
Law
Overcharging roommates gives rise to a possessory cause of
action on the part of the landlord (see First Hudson Capital LLC v Seaborn, 15 Misc 3d
40 [App Term, 1st Dept 2007]; West
148 LLC v Yonke, 11 Misc 3d 40 [App Term, 1st Dept 2006]; RAM 1 LLC v
Mazzola, 2001 Slip Op 50073 [U] [App Term, 1st Dept 2001]; see also Greene Street Realty Corp. v
Shook, 8 AD3d 168 [1st Dept 2004] [implicitly recognizing a possessory remedy on the
part of the landlord]; Murphy v
Carter, 15 Misc 3d 75 [App Term, 1st Dept 2007] [implicitly recognizing possessory
remedy]; Roxborough Apt. Corp. v
Becker, 11 Misc 3d 99 [App Term, 1st Dept 2006]). An overcharge occurs where the
roommate pays in excess of his "proportionate share of the legal regulated rent charged to and
paid by the tenant for the subject housing accommodation" (RSC § 2525.7 [b]). The
"proportionate share" is "determined by dividing the legal regulated rent by the total number of
tenants named on the lease and the total number of occupants residing in the subject housing
accommodation" (id.). With only respondent and Mr. Marroletti living in the apartment,
respondent was only permitted to charge Mr. Marroletti 50% of the legally regulated rent, or
$1,278.40. Charging Mr. Marroletti $1,500.00 represented an overcharge of $221.60 or 17.33%.
A landlord may generally only bring a proceeding for eviction based upon a claim that a tenant violated a substantial obligation of his or her tenancy after serving a written 10 day Notice to Cure (326-330 East 35th St. Assoc. v Sofizade, 191 Misc 2d 329, 330 [App Term, 1st Dept 2002]; RSC § 2524.3[a]). Petitioner's notice to terminate advises respondent that "you have violated a substantial obligation of your tenancy and the law in that you are engaged and have engaged in rent gouging an incurable offense in violation of Section 2525.7 of the [RSC]. . . . " As the petitioner advances the theory that respondent violated a substantial obligation of his tenancy, a 10 day Notice to Cure was required.
There are only two possible exceptions to the Notice to Cure requirement. The first exception arises where it is asserted that the tenant has "willfully violated" a substantial obligation of the tenancy and "inflicted serious and substantial injury upon the owner within a three month period immediately prior to the commencement of the proceeding" (RSC § 2524.3[a]). This exception is inapplicable since neither the notice of termination nor the petition assert a willful violation or a serious or substantial injury.
The second exception stems from a line of cases holding that failure to serve a Notice of Cure is not fatal where, based upon the cumulative pattern of a tenant's chronic nonpayment of rent, [*4]the course of conduct is incapable of any meaningful cure (Herald Towers, LLC v Perry, 2003 NY Slip Op 50564[U] [App Term, 1st Dept 2003]; Century Apartments Assoc. v Kleinman, 2002 NY Slip Op 50303[U] [App Term, 1st Dept 2002]; Sofizade, 191 Misc 2d at 330 [App Term, 1st Dept 2002]; Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 622 [App Term, 1st Dept 2000]; see also 2215-75 Cruger Apartments, Inc. v Stovel, 196 Misc 2d 346, 347 [App Term, 1st Dept 2003]; 974 Realty Corp. v Ledford, 9 Misc 2d 240, 241 [App Term, 1st Dept 1957]). This holding reflects a desire to "dispense with the empty formalism of a cure notice. . . " which would be a futile act ". . . since the past, persistent rent defaults which form the basis of the landlord's claim cannot be remedied by a tenant's furnishing of assurances of future performance'" (Sofizade, 191 Misc 2d at 330 [citation omitted]). This exception appears limited to chronic nonpayment holdovers, and thus inapplicable.
However, certain roommate overcharges are also not susceptible to post-judgment cure and perhaps, in these instances, courts should also dispense with the formality of a 10 day Notice to Cure. In determining whether a tenant is entitled to a post-judgment cure, courts have looked to the nature of the overcharge. Where the overcharge is so egregious that it rises to the level of "commercial exploitation," a post-judgment cure is unavailable (see Seaborn 15 Misc 3d at 44; Yonke, 11 Misc 3d at 41). In Seaborn, Appellate Term affirmed the trial court's denial of a post-judgment stay to permit a cure, finding that the tenant engaged in "profiteering" and "commercial exploitation" of his rent stabilized apartment. The tenant had placed multiple advertisements for roommates in the Village Voice over three years and at least two of the "roommates" paid "substantial overcharges," in excess of the entire lawful monthly rent (Seaborn, 15 Misc 3d at 44). Similarly in Yonke, Appellate Term upheld the trial court's determination that the tenant's "commercial exploitation" of her stabilized apartment which resulted in a "lucrative windfall" required her eviction. The tenant posted an internet listing for "Affordable Hotels," her business card read "Chez Sylvie Bed and Breakfast" and she rented a portion of her apartment to a series of "roommates" charging each nearly double the monthly stabilized rent for the entire apartment (Yonke, 11 Misc 3d at 41).
By contrast, in the absence of bad faith, intent to profiteer and commercial exploitation, an overcharge is curable. In Shook, Appellate Division affirmed the trial court's dismissal of an ejectment action upon condition that the tenant refund all the rent paid by the roommate in excess of 50% of the regulated rent. The court held that although the tenant had overcharged his roommate in violation of RSC § 2525.7 by charging more than half the monthly stabilized rent, the opportunity to cure was appropriate since "the amount of overcharge was small and there was no evidence of bad faith or an intent to profiteer" and it was "not unreasonable for the tenant to believe that he was entitled to some compensation for the improvements he made to this loft space" (Shook, 8 AD3d at 168). In Roxborough v Becker, Appellate Term held that although the tenant charged his roommates a disproportionate share of the legal rent in violation of RSC § 2525.7, "the overcharges did not rise to a level of profiteering requiring eviction . . . without giving him an opportunity to cure" and that "the surcharge amounts, though not insubstantial, [did] not reflect commercial exploitation of the regulated tenancy" (Roxborough, 11 Misc 3d at 100-101). Although, the tenant in Roxborough charged three roommates a total of $2,100 per month when the legal regulated rent was only $1,954 per month, the tenant's mistaken belief that he was entitled to charge extra for services and amenities was not "palpably unreasonable" and the financial arrangements between tenant and his roommates were not actuated by "bad faith or an intent to profiteer" (id. at 100-101). The Roxborough court stayed execution of the warrant for 30 days affording the tenant a post-judgment cure period to [*5]provide refunds to his roommates (id. at 100).
At bar, the overcharge of 17.33% was small. Although petitioner's notice of termination claims that the overcharge is "incurable," it does not allege that respondent profiteered or received a lucrative windfall, and, in fact, respondent did neither. The amount collected from respondent's one roommate was well shy of the total legal regulated rent for the apartment and respondent did not commercially exploit his apartment by renting rooms as a hotel or bed and breakfast. In fact, petitioner has not alleged that respondent pocketed any of the overcharge obtained from Mr. Marroletti. Rather, it is uncontested that respondent converted Mr. Marroletti's $1,500 rent payments into money orders and paid them directly to petitioner to cover part of the monthly rent while the exact amount of rent remaining was paid to petitioner by HRA on behalf of respondent; not one penny is alleged to have been pocketed by respondent as profit. Nor is there any claim of bad faith by respondent. Nor is it unreasonable for respondent to have believed, although mistakenly, that he was entitled to some additional compensation for the fact that his roommate had use of two out of the three bedrooms. For all of these reasons, respondent's overcharge is exactly the type that is capable of being meaningfully cured post-judgment by requiring the return of the overcharged amounts to respondent's roommate. As respondent's overcharge is curable, the service of a 10 day Notice to Cure was an essential predicate to this proceeding, not a mere formality, and petitioner's failure to serve the notice mandates dismissal of this proceeding.
Although failure to serve a predicate notice is not a jurisdictional defect, this court "will treat
respondent's motion as motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a
cause of action on grounds that service of inadequate predicate notices rendered the holdover
proceeding fatally defective" (40 East
68th Street Co v Habbas, 17 Misc 3d 1101[A], 2007 NY Slip Op 51789[U], *2 [Civ Ct
NY 2007]). Thus, this proceeding must be dismissed.
Conclusion
Respondent's motion to dismiss is granted.
Petitioner's cross motion for leave to conduct discovery is denied as moot.
The clerk is directed to mail a copy of this decision to all parties.
This constitutes the decision and order of this court.
Dated:February 22, 2008
New York, New York
___________________________________
David B. Cohen, J.H.C
To:
Cornicello & Tendler, LLP
Attorneys for Petitioner
116 John Street
Suite 2501
New York, New York, 10038
by: David B. Tendler, Esq.
[*6]
African Services Committee
Attorney for Respondent
429 W. 127 Street
New York, New York 10027
by: Chitra Aiyar, Esq.
Footnotes
Footnote 1: Respondent claims that his lease
and lease rider are devoid of a provision which prohibits an "unequal rent-sharing agreement" as
conduct rising to the level of substantial, and thus incurable, violation of his tenancy. However,
as conduct expressly prohibited by statute, this point does not impede petitioner's ability to bring
suit.
Footnote 2: Named in this proceeding as
Mark Marroletti.
Footnote 3: 156-158 Second Avenue,
LLC v Michael Delfino, L & T Index No. 90476/06 (Civ Ct, NY County).
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