Richardson v Curran

[*1] Richardson v Curran 2008 NY Slip Op 51991(U) [21 Misc 3d 1107(A)] Decided on October 7, 2008 Civil Court Of The City Of New York, New York County Mendez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2008
Civil Court of the City of New York, New York County

Andre Richardson, Plaintiff,

against

Jeff Curran and Sharon Hamer, Defendant.



SCNY 2596/2008



Appearances:

Andre Richardson, Claimant Pro-Se.

Glenn Fuerth, Esq., Wilson, Elser, Et al, for Defendants.

Manuel J. Mendez, J.

Claimant brings this Small Claims action to recover $5,000.00 from the defendants, jointly and severally, for non-payment of rent on June 1, 2008. Claimant is the owner of a Cooperative apartment No.21 located at 540 west 146th street in the County of New York. On or about May 1, 2008 claimant entered into a lease for the subject apartment with defendant Jeff Curran and others( Claimant's 6). This lease was guaranteed by defendant Sharon Hamer ( Claimant's 5).In accordance with the lease and the rental application defendant was to make a security deposit of $1,800.00, pay the first month's rent $1,800.00 and last month's rent $1,800.00. Defendant moved into the apartment without making any of the payments.

In late May 2008 defendant was served with a Notice to Cure and subsequently with a Notice of Petition and Petition in a Non-payment proceeding.(Defendant's A) The Petition alleged that Claimant was indebted to the Cooperative Corporation for maintenance arrears on the apartment. Defendant had sent a check for June rent in the amount of $1,800.00 to which he placed a stop payment order after being served with legal papers.(Claimant's 8) The Landlord-Tenant proceeding was settled by stipulation of settlement on July 21, 2008 (Defendant's B). In accordance with the terms of the stipulation claimant received a credit to his maintenance for services he [*2]rendered to the cooperative corporation, and agreed to make payments to the corporation as follows:

$2,500 on or before July 31, 2008; $555.35 on or before August 31, 2008; $555.00 on or before September 30, 2008 and $555.00 on or before October 31, 2008.

Claimant alleges that defendant has lived in the apartment without paying the rent or any deposits to which claimant is entitled.

Defendant alleges that claimant fraudulently induced him into entering into the lease agreement. Claimant illegally sublet the premises to defendant without seeking the cooperative corporation's approval and failed to make his rental payments, causing defendant to be served with process thus heightening defendant's concern of getting evicted. He further alleges that he would not have signed the lease had he known that Claimant was in arrears in his rental payment and that the sublet of the apartment was illegal. Finally, defendant alleges that he never felt comfortable that claimant would comply with the terms of the stipulation, thereby causing defendant to be evicted, that is why he never paid any rent and moved out on September 26, 2008. Defendant makes a counterclaim for fraudulent inducement and seeks $1,000.00 as compensatory damages and $3,000.00 as punitive damages .

To establish a prima facie case of fraud a party must present proof that (1)material representations that were false have been made, (2) the party making them, knew the representations were false and made them with the intent to deceive (3) the aggrieved party justifiably relied on the representations, (4) injury as a result of the representations ( Cohen v. House Connect Realty Corp., 289 AD2d 277, 734 NYS2d 205 [2nd. Dept. 2001]). Defendant alleges he was fraudulently induced by claimant into signing the lease and he has been damaged thereby; However, claimant has submitted evidence in the nature of electronic messages between him and the defendant to prove that he had notified the defendant of the situation between claimant and the cooperative corporation.

Claimant has proven through the uncontroverted testimony of Mrs. Richardson, Mr. Mcknight and Mr. Clark, that the proper procedures were followed in renting to the defendant. Mrs. Richardson stated she was a past member of the Cooperative Corporation's Board and a member of the screening committee when defendant was approved as a tenant in apartment 21. Mr. Mcknight, a member of the screening [*3]committee, although he didn't meet with defendant as part of the committee, reviewed the application, verified the information and gave his approval for the rental of the apartment. Mr. Clark, who showed defendant the apartment placed him on notice of the disputes between claimant and the Cooperative Corporation. Having been placed on notice by claimant and Mr.Clark defendant cannot now claim justifiable reliance on any misrepresentation (Barrett v. Huff, 6 AD3d 1164, 776 NYS2d 678 [4th Dept. 2004]quoting Stuart v. Silver Assoc., v. Baco Dev. Corp., 245 AD2d 96, 665 NYS2d 415). Defendants did not come forth with proof to rebut claimant's assertions that the procedure he followed to get defendant Curran approved for the apartment was not proper. But even if he had, that would not have altered the result of this case.

Claimant and defendant entered into a valid lease agreement. The lease obligated defendant to pay a total of $5,400.00 as security, first and last month's rent. Defendant has failed to pay this amount and lived in the premises without paying any rent until September 26, 2008. If defendant was concerned about a possible eviction in the event claimant did not comply with the terms of the stipulation dated July 17, 2008 he should have and could have moved out voluntarily.Defendant's refusal to pay rent or the deposits due for fear of being evicted, is akin to a defense of constructive eviction. However, in such a situation he would only be relieved of the obligation to pay rent if he abandons the premises without unreasonable delay ( See Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 308 NYS2d 649, 256 NE2d 707[1970]; Goldman v. Sears-Robbins/Robbins, N.Y.L.J. 6/15/98 P. 30 Col.3[Civ. Ct. NY CTY.]; U.S. Bronsville II, HDFC v. Nelson, 3 Misc 3d 1107 (A), 787 NYS2d 681[Civ. Ct. NY C. 2004]). Defendant did not abandon the premises, instead he lived in the premises continuously from May to September 26, 2008 when he allegedly moved out. Even on the day this matter was tried defendant still had possession of the keys to the premises and had not returned them to either claimant or the president of the cooperative corporation's Board.

A guaranty is an obligation to answer for the debt of another and upon default the guarantor becomes primarily liable and indebted ( Michels v. Chemical Bank, 110 Misc 2d 74, 441 NYS2d 638 [NY Sup. Ct. 1981]; Bank of China, Chinatown Branch v. Chung Tai Enterprise ( U.S.A.) Inc., 202 AD2d 306, 609 NYS2d 216 [App. Div. 1st. 1994]). Defendant Hamer signed a guarantee which in its pertinent part states: " As guarantor I guarantee that I may be held liable for any payments, damages, liens or other disbursement due to A.K. Richardson as a result of claims pursuant to any [*4]occupancy of a unit by the above named applicant, or under any lease agreement signed by said applicant." The applicant's name is Jeff Curran. This guaranty was signed by Sharon Hamer on April 15, 2008 in front of a notary.

Under these facts and to achieve substantial justice consistent with the principles of substantive law ( CCA §1807) this court must find for the claimant.

Accordingly, the decision and judgment of this court is for the claimant and against the defendants. Claimant is awarded judgment against the defendants jointly and severally in the amount of $5,000.00 with interest from October 7, 2008. Defendant's counterclaim is dismissed.

This constitutes the decision and judgment of this court.