Rota Holding Corp. No. 2 v Shea

[*1] Rota Holding Corp. No. 2 v Shea 2008 NY Slip Op 52250(U) [21 Misc 3d 1127(A)] Decided on October 23, 2008 Civil Court Of Thecity Of New York, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2008
Civil Court of theCity of New York, New York County

Rota Holding Corp. No. 2, Petitioner,

against

Christopher Shea, Respondent.



065696/08



Gutman, Mintz, Baker & Sonnenfeldt, P.C., New York City (Gary D. Friedman and Christopher R. Bentivegna of counsel), for petitioner.

Manhattan Legal Services, New York City (Ime Nse Imeh of counsel), for respondent.

Gerald Lebovits, J.

In this nonpayment proceeding, petitioner alleges that respondent owes $3568.10 in arrears from December 2007 through April 2008, plus current rent. Respondent, a rent-stabilized tenant, moves to dismiss the petition on two grounds: (1) that fatal defects exist in the rent demand and petition; and (2) that petitioner violated Rent Stabilization Code (9 NYCRR) (RSC) § 2523.5 (c) (1) by failing to offer a timely renewal lease and by charging respondent an incorrect monthly rent. Respondent also moves for partial summary judgment on the basis of laches and res judicata. Petitioner does not oppose respondent's motion on res judicata and laches. Petitioner argues only that the rent demand and petition are valid and that it sent respondent a renewal lease retroactive to 2006. Respondent's motion is granted in part and denied in part.

Rent Demand and Petition

Respondent argues that the petition is predicated on a defective rent demand. According to respondent, the rent demand does not reflect the rental credit previously stipulated, Human Resource Administration (HRA) credits, or respondent's rental payments for January 2008 through April 2008. Respondent contends that petitioner's supposedly embellished rent demand is misleading and issued in bad faith. Petitioner claims that any alleged defect is not fatal to this proceeding and that its pleadings should be construed liberally.

A notice of petition and petition must alert respondents of the summary proceeding brought against them and give them notice of how, when, and where to answer the allegations. (RPAPL 731 (2); Matter of Recycle v Lacatena, 163 AD2d 693, 694 [3rd Dept 1990].) A predicate rent demand must afford the tenant at least actual notice of the alleged amount due and the period for which the claim is made. The landlord or agent should inform the tenant of the [*2]period for which the rent payment is allegedly in default and of the approximate, good-faith sum of rent assertedly due for each period. (Schwartz v Weiss-Newell, 87 Misc 2d 558, 561 [Civ Ct, NY County 1976]). In this case, the rent demand and petition includes the time periods and amount of arrears. Petitioner gave respondent a sufficient approximation of what he owes and an opportunity to dispute it. The demand for rent need not demand the precise sum due but, rather, claim in good faith the perceived amount of rents and periods due. That petitioner may not entirely succeed on its claim does not provide a reason to invalidate the rent demand and petition. (402 Nostrand Ave. Corp. v Smith, 19 Misc 3d 44, 46 [App Term 2d Dept, 2d & 11th Jud Dists, March 18, 2008, mem].)

Rent Stabilization Renewal Lease

The parties dispute whether petitioner offered respondent a timely renewal lease. Respondent seeks to dismiss that part of the petition that includes rental claims exceeding what is legally collectible under Rent Stabilization Code (9 NCRR) (RSC) § 2523.5 (c) (1). Respondent contends that petitioner sent a late renewal lease, in February 2008 instead of in November 2006. He claims he signed the renewal lease in March 2008 and returned it.

Petitioner alleges that it automatically sent respondent a renewal lease for November 2006 through October 2008 "based on renewal anniversary dates logged in our record keeping system" (Norman Schneider's Affidavit at ¶ 4) and that respondent failed to return a signed copy.

The renewal lease petitioner provided shows that on February 22, 2008, petitioner tendered a renewal lease retroactive to October 2006. The offer was not made within the 150- and 90-day period before tenant's current lease expired, the "window period" allowed in subdivision (a) of § 2523.5. Under subdivision (c), when a late renewal lease is offered a tenant has the option to begin that renewal either on the date a renewal lease would have commenced had a timely offer been made or on the first rent payment date occurring no less than 90 days after the offer is made. (Id.) Respondent's renewal lease did not commence until June 2008 at a monthly rate of $786.68; therefore, petitioner wrongly charged the increased rate of $786.68 for March, April, and May 2008, whereas the rate became due only in June 2008. The landlord's claim for monthly rent exceeding the rent reserved in the expired lease, $733.50, is unwarranted. (See Berger v Carmona, 137 Misc 2d 923, 924 [Civ Ct, Bronx County 1987].) The motion to dismiss on the renewal-lease provisions of Rent Stabilization Law is granted.

Laches

Respondent has established its defense of laches. The defense of laches protects a tenant when the landlord's unreasonable and inexcusable delay prejudices the opposing party. (Brennan v Nassau County, 352 F3d 60, 64 [2d Cir 2003].) To establish laches, an affirmative defense, a respondent has the burden of proving that (1) conduct gave rise to the nonpayment proceeding; (2) the petitioner had an opportunity to assert a claim earlier but delayed without reason; (3) the respondent was unaware that the petitioner would bring a nonpayment proceeding; and (4) the respondent will be prejudiced if laches does not bar the action. (Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1986].) If respondent meets this burden, the burden then shifts to petitioner to show a reasonable excuse for the delay. (Id.) The court has the discretion to consider equities to [*3]determine when a claim is stale. (269 Assocs. v Yerkes, 113 Misc 2d 450, 454 [Civ Ct, NY County 1982].)

Petitioner's rental ledgers show, in addition to current rent, rent charges or adjustments in February and March 2008 totaling $2641.68. In petitioner's bill of particulars, petitioner included the "Charges/Credits Form," which attempts to explain that two additional charges of $2641.68 result from rent increases dating from 2004. Respondent argues that maintaining a proceeding to recover rent claims spanning a four-year period is prejudicial and restricts respondent's ability to obtain rental-arrears assistance that would have otherwise been available to him.

Petitioner does not oppose any of respondent's facts in its opposition to respondent's motion to dismiss. Petitioner has not given the court a reasonable excuse for the delay. The court must therefore accept respondent's unopposed facts as true. (Kuehne & Nagel, Inc. v Baiden,36 NY2d 539, 544 [1975].) Respondent has satisfied the first element of laches because nonpayment of rent is a cause of action. He has satisfied the second element because petitioner delayed in bringing this nonpayment claim. As explained below, petitioner did not attempt to recover those arrears in two earlier nonpayment proceedings covering the same periods that petitioner brought against respondent. Respondent has satisfied the third element because he did not know that petitioner would commence a proceeding based on accounting errors. Respondent paid his monthly rent bill according to petitioner's rent statements, which indicated that he had to pay $688.73 a month. Petitioner should have made sure it received $733.50, the correct amount of rent stated on the lease for those periods. Also, respondent will be prejudiced if he is compelled to pay the back rent. Respondent has established that he will be prejudiced because of the disadvantage that would result from the delay. (See Thurmand v Thurmand, 155 AD2d 527, 529 [2d Dept 1989].) Respondent is disabled and is applying for the Disability Rent Increase Exemption (DRIE). Respondent's only source of income is limited public assistance and disability payments. Respondent would be unduly burdened if the court were to require him to pay $2641.68 in arrears from 2004 because of petitioner's accounting error.

The court must determine whether the rent accrued is subject to a possessory judgment or only a nonpossessory judgement. Taking the equities into account and using its discretion, this court determines that petitioner may seek at trial a possessory judgment for rent arrears that accumulated one year before the demand for rent was made, or rent owed from April 2007 to date. All prior rental arrears are severed. Petitioner may pursue a plenary action for them.

Res Judicata

Respondent has met his burden on summary judgment for that portion of the petition that includes rent claims for December 2007 and part of January 2008. Respondent contends the parties stipulated a rental credit for that period. The movant on a summary-judgment motion must prove that no material issues of fact exist on a cause of action or defense. The absence of any triable issue of fact warrants the court to direct judgment as a matter of law. (Zuckerman v City of NY, 49 NY2d 557, 562 [1980].) The court must deny summary judgment if a triable or arguable issue exists. (CPLR 3212 [b].) In its opposition, petitioner does not oppose the alleged rental credit or even address this aspect of respondent's argument. Any fact the nonmoving party [*4]does not deny is deemed admitted. (Kuehne & Nagel, 36 NY2d at 544) The court must therefore accept respondent's facts as he presents them.

The parties were involved in two earlier nonpayment proceedings. Respondent argues that rent claims for December 2007 and part of January 2008 were resolved in one of the two prior summary proceedings, L & T 86442/2007. The parties signed a stipulation discontinuing that proceeding on December 11, 2007, stating that respondent had "a rental credit of $472.53 through December '07." In this case, the rent demand and petition seek partial rent of $421.38 for December 2007 and $786.68 for January 2008. Respondent argues that petitioner has violated the terms of the stipulation and that res judicata bars petitioner from re-litigating the same claims and issues raised and decided in the earlier proceeding. Respondent has proven that a prior stipulation credit exists and that the rental credit, which was not applied, must be credited to the rent due for December 2007. In addition, January 2008 rent of $733.50 is partially credited to $312.12. That the part of the petition seeking the rental credit must be dismissed.

This proceeding is adjourned for trial to December 1, 2008.

This opinion is the court's decision and order.

Dated: October 23, 2008

J.H.C.