McKinley v Oates

[*1] McKinley v Oates 2009 NY Slip Op 51878(U) [24 Misc 3d 1245(A)] Decided on September 3, 2009 Just Ct Of Town Of Sand Lake, Rensselaer County Fryer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 3, 2009
Just Ct of Town of Sand Lake, Rensselaer County

James McKinley,C/O Albert Park Properties, Petitioner,

against

Eric Oates a/k/a ERIC OAKES



xx09

David W. Fryer, J.

The Petitioner filed a petition for a summary proceeding on July 21, 2009. The parties appeared on July 27, 2009. After a short appearance where no resolution was at hand, the matter was set down for a hearing. The hearing date was adjourned upon consent from August 3, 2009 until August 24, 2009.

On August 24, 2009, the Petitioner was represented by William P. Hessney, Esq. and John Berigan as property manager. The Respondent, Eric Oakes, appeared pro se, indicating that he was not able to come to terms for representation with legal counsel Christina Cronin, Esq.

After a brief opening statement by attorney Hessney, a motion was made by the same to amend the petition before this court to add the name of Eric Oakes as a party. That motion was granted. The petition is seeking an order for possession and other related damages as per RPAPL 711 (1) deeming the respondent an "objectionable tenant". The allegations suggest breaches to the written lease involving the payment of rent, the housing of animals and cars, as well as the payment of utilities.

It is undisputed that there was a written lease executed by Eric Oakes, although referencing another name of Eric Oates that was dated December 27, 2008. The term of the lease was for a one year period, commencing on January 1, 2009. The property in question was a single family home with a detached garage.

Mr. Berigan testified that the Respondent was late on his rent for July 2009 as well as other prior months, and owes rent for August 2009 in the amount $1250.00 plus a late charge of $75.00. Mr. Berigan also testified that the Respondent was housing three dogs and four cats in direct violation of the lease referencing two dogs only. There were allegations made that the animals caused damages to the basement area. Further, there was testimony that was some 7 vehicles on the premises and at least five were not properly registered. Finally, it is the argument of the Petitioner that a bill for liquid propane used to heat the home was never reimbursed by the tenant as per the lease. Evidence was provided by the petitioner relating to pictures of the [*2]vehicles in question, a copy of the lease and bills related to the propane.

The Respondent testified that upon receiving the notice of default in July 2009, he immediately made the required corrections regarding the alleged breaches of the lease. The Respondent admitted there were 3 dogs and 4 cats on the premises and that the lease provided for only two specific dogs. It is the Respondent's position that there was no damages to the Petitioner's property as a result of the animals being in the basement of the home and that any damages were to the Respondent's personal property only. The Respondent also argued that at the time of the service of the pending petition, all of the vehicles, except for one housed in the garage, were registered and insured. As result there was no violation of the local ordinance relative to the same. With regard to the propane, the Respondent raised the argument that the bills provided to him were for past due amounts owed for period prior to his tenancy. While the issue of past due rents for July 2009 were resolved, the rents for August 2009 remain in question.

Upon review of all, it is clear to this Court that there were breaches to the lease provisions. The fact that one of the dogs was only housed temporarily and that the cats were considered outside cats, does little to alleviate the actual breach of the lease regarding pets. Likewise, while the issue regarding the vehicles may be such that the vehicles were registered when this matter was commenced, the evidence seems to suggest otherwise. In the end the Respondent admitted that as of the date of this hearing, none of the vehicle were legally registered or insured, in clear of violation of the local law. The facts seem to support the Respondent's position that propane bills may well involve past due amounts unrelated to use and occupancy of the home. The rents for August remain in dispute. I am satisfied that as of the date of this hearing, the rent amount for August 2009 in the amount of $1250.00 plus the allowed for penalty of $75.00 was not received.

The reference to RPAPL 711 (1) in the Petitioner's verified petition suggests the grounds for which seeking relief is based upon a series of defaults referenced in part above and therefore allegations the Respondent should be considered an "objectionable tenant ". The law specific to what is otherwise an "objectionable tenant" as per RPAPL 711 (1) is murky at best. What is required is a provision in the written lease allowing the landlord to seek to terminate the lease in the event that the landlord deems the tenant to be an "objectionable tenant", Perrotta v Western Regional Off Track Betting Corp., 98 Ad2d 1 (4th Dept 1983).Those provisions should be compared to termination clauses built into certain leases that require a notice of default based upon a breach and thereafter after the expiration of the notice of default, a termination of the lease and the tenants rights, (see TSS Seedmans Inc v Elota Realty Company, 72 NY2d 1024,(1988). Relative to the objectionable tenant, for the most part, the available case law involves nuisance type cases. The standard in those cases require the landlord to prove by competent evidence that the tenant caused an, " unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others", Frank v Park Summit Realty Corp, 175 Ad2d 33, (1st Dept 1991), see also RPAPL 711 (1). To what extent a party can be considered an objectionable tenant outside the nuisance claims, remains unclear. More stringent rules apply to rent controlled, rent stabilized dwellings in New York City, where there are regulations in place relative to what is considered an objectionable tenant, (see PHL 54). In terms of what is otherwise an illegal use, RPAPL 711 (5), limits that conduct to an illegal trade or business, including lewd activities. What is clear is that it is a well established principle that Courts will deny the termination of a lease unless there is proof of a substantial breach of the terms, Sy Jack Realty Co. v Pergament Syosset Corp, 27 NY2d 449, (1971). It should be noted also that verified petition in this case reads more than not as a breach of lease case, wherein the [*3]grounds for eviction are built into the terms of the lease, outside those referenced in RPAPL 711.

In this case, the real property in question is a single family home. There are no issues related to a multi family unit, rent stabilization or rent control. There is written lease. There are both an objectionable tenant clause and a termination clause in the written lease. The record is void of any allegations relating to a nuisance to any other tenants or nearby residents. As a result, the real issue becomes whether based upon the violations of the lease agreement taken together, the Respondent herein can be determined to be objectionable.

There was testimony provided suggests that there were other disputes raised by the Landlord relating to rent and other matters involving the cars and animals. At least one these disputes involved a prior summary proceeding. Although, not a breach of the lease per se, the housing of six unregistered vehicles on the premises was never contemplated by the Landlord and is in fact, a violation of the Sand Lake Town Code. The lease did set forth that two dogs were allowed on the property. In the end, there were 3 dogs and 4 cats on the premises, in clear violation of the agreement. Considering all of the above and compounding the same with issues regarding past due rent, the problems with the utility bills and the fact that these have been on going problems for several months, the evidence would tend to favor the Petitioner's position.This court is very mindful that the defining aspects as to what is an"objectionable tenant" rarely involves anything other then nuisance related issues. It would seem however, the law does not prohibit considerations specific to the totality of the tenant's actions, misdeeds and breaches of the written lease, when determining what is objectionable. While under most circumstances any potential termination of the lease should be carefully scrutinized and the tenants rights protected, landlords should be given the opportunity to remove a tenant that does not conform to what is otherwise proper conduct related to the use and occupancy of the rental property.

In this case, the violations regarding the vehicles, pets and rental obligations were proven to the satisfaction of this Court. The record indicates that some of the violations were referenced in certain letters and other communications dating back several months and were never corrected. Taken together, it is the position of this Court that the conduct of the tenant, spread over several months, rises to the statutory requirement of what is considered objectionable.

In addition, taking this matter from the perspective of a breach of lease claim, wherein the termination clause of the lease gives rise to the pending action, this Court is likewise satisfied that there was a substantial breach the lease terms. Given the sheer volume of unregistered vehicles and pets on the site, this Court would have difficulty deciding otherwise.

The damages are determined to be rents for August and September, plus any applicable late fees, attorney fees in the amount of $425.00 and costs, including filing and service fees. Assuming the Respondent leaves the gas tanks filled, there are no damages regarding the same. In any event, those issues regarding utility bills will need to dealt with by way of a separate action, if need be. The warrant of eviction will stayed until September 30, 2009, should the Respondent make the September rental payment by September 15, 2009. In the event the said payment is not made, the Petitioner will be allowed to apply for the Warrant of Eviction, anytime after September 15, 2009. Counsel for the Petitioner is directed to file a judgment with the Court, consistent with the decision, on notice to the Respondent.

IT IS SO ORDERED

September 3, 2009

___________________________

David W. Fryer [*4]

Town Justice