Bldg. Mgt. Co. Inc. v Bonifacio

[*1] Bldg. Mgt. Co. Inc. v Bonifacio 2009 NY Slip Op 52398(U) [25 Misc 3d 1233(A)] Decided on November 27, 2009 Civil Court Of The City 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2009
Civil Court of the City of New York, New York County

Bldg. Management Co. Inc., Petitioner,

against

Martina Bonifacio, Respondent.



064377/09



Lawrence P. Wolf, Chappaqua, for petitioner.

Manhattan Legal Services, Inc., New York City (Lesley Tse of counsel), for respondent.

Gerald Lebovits, J.

In this nonpayment proceeding, petitioner alleges that respondent owes $20,560.16 in arrears from August 2007 through April 2009 plus current rent. Respondent moves for summary judgment on three grounds: (1) that the petition fails properly to set forth the facts on which the proceeding is based under RPAPL § 741 (4); (2) that petitioner is barred by laches from obtaining a possessory judgment for the portion of rent sought before February 2008 under the stale-rent doctrine; and (3) that petitioner is not entitled to washing-machine fees or extermination fees because these fees are not rent. Respondent also moves for a rent abatement due to petitioner's alleged violation of the warranty of habitability. Petitioner later filed a cross-motion, but the only relief sought in that cross-motion is to oppose respondent's motion.

Respondent has lived in the subject rent-stabilized apartment for the past 22 years. She entered into a renewal lease on August 1, 2006, at a monthly rent of $948.65. Petitioner commenced other proceedings (under the index numbers 075207/2007 [lasting from June 2007 to July 2007], 088325/2007 [lasting from September 20, 2007 to December 18, 2007], and 081883/2008 [lasting from August 20, 2008 to March 26, 2009]) against respondent. The proceedings were ongoing during the period in which rental arrears sought in this proceeding accrued. This court has examined the files for each of these proceedings and has learned the following.

Petitioner commenced a nonpayment proceeding under index number 075207/07. The case was settled on July 2, 2007. Respondent agreed to pay outstanding and current rent, and the court excluded the washing-machine charges. Respondent failed to pay the current rent. That resulted in petitioner's filing a motion for a final judgment. That motion was withdrawn when, on the return date, respondent paid the full rent in court. [*2]

Petitioner commenced a holdover proceeding under index number 088325/07. Petitioner alleged that respondent illegally sublet her apartment. After the case was adjourned to allow petitioner to obtain access to inspect the subject premises, the proceeding was discontinued without prejudice on December 18, 2007.

The most recent holdover proceeding, filed on August 20, 2008, under index number 081883/08, involved petitioner's allegation that respondent did not use the subject premises as her primary residence. Respondent produced evidence of her use of the premises as primary residence, her receipt of supplemental security income, and a violation report from the Department of Housing Preservation and Development (HPD). The proceeding was adjourned for petitioner to move for disclosure and for use and occupancy. The proceeding was then discontinued with prejudice on March 26, 2009. Petitioner acknowledged respondent as the tenant of record and give her a renewal lease.

Respondent states in her affidavit for the current proceeding that she withheld rent payments from August 2007 through May 2009 due to petitioner's supposed failure to make repairs. Respondent had raised repair issues under L & T Index No. 081883/2008.

Respondent now moves for summary judgment in this nonpayment proceeding. To obtain summary judgment, the moving party must establish a cause of action or defense sufficient to warrant the court as a matter of law to direct judgment. The burden then shifts to the opposing party to "show facts sufficient to require a trial of any issue of fact." (CPLR 3212 [b].) If the opposing party fails to produce proof in admissible form to raise triable issues of fact, the court must grant summary judgment to the moving party. (Zuckerman v City of New York, 49, NY2d 557, 560 [1980].) The court may award summary judgment on any defense for which the moving party establishes entitlement to judgment as a matter of law. (CPLR 3212 [b]).

Summary Judgment Under RPAPL § 741 (4)

Respondent moves for summary judgment under RPAPL § 741 (4), which requires that every petition state the facts on which the proceeding is based. Respondent alleges that petitioner incorrectly listed the written lease date as "1/1/0001." The Appellate Term has rejected an overly strict construction of RPAPL § 741 (4). (See e.g. Coalition Houses L.P. v Bonano, 12 Misc 3d 146 [A], 2006 NY Slip Op 51516 [U] at *1 [App Term, 1st Dept, Aug. 2, 2006] [holding that petitions in summary proceedings must set forth sufficient facts so that respondent may adequately frame defense but disapproving of "judicial engraftment of hypertechnical restrictions'"].) Respondent has not shown how the incorrect date materially misrepresented the facts or prevented her from framing a defense. (See e.g. S & R Props. of New York Inc. v Cromwell, 12 Misc 3d 132 [A], 2006 NY Slip Op 51152 [U] at *1 [App. Term, 1st Dept, June 22, 2006] [holding that absence of multiple dwelling statement did not prevent respondent from framing defense or materially misrepresent building's status].) Respondent's motion for summary judgment under RPAPL § 741 (4) is denied.

[*3]Summary Judgment for Laches

Respondent moves for summary judgment contending that petitioner may not obtain a possessory judgment for stale rent. Petitioner instituted this proceeding in April 2009 seeking rental arrears from August 2007 to April 2009. Respondent alleges that petitioner delayed in bringing this nonpayment proceeding and allowed the arrears to accumulate to $20,560.16 through April 2009, thus causing her severe prejudice.

Summary judgment may be awarded on a laches defense. (See e.g. Marriott, 151 Misc 2d 938, 940 [Civ Ct, NY County 1991].) Laches is an equitable doctrine based on fairness. To establish the affirmative defense of laches, a respondent must prove (1) the petitioner's conduct for which a respondent seeks a remedy; (2) that the petitioner delayed in asserting its rights, having been afforded an opportunity to institute in proceeding; (3) lack of knowledge or notice on the respondent's part that the petitioner would assert its rights; and (4) injury or prejudice to the respondent if the relief is afforded to the petitioner or the suit is not barred. (Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991].) Once the respondent meets this burden, the petitioner, to prevail, must show a reasonable excuse for the delay.

Court have the discretion to consider the equities to ascertain "when a claim [for rent] is stale." (Rota Holding Corp. No. 2 v. Shea, 21 Misc 3d 1127 [A], 2008 NY Slip Op. 52250 [U] at *2 [Civ Ct, NY County].) When a respondent establishes the elements of laches, the petitioner is barred from recovering a possessory judgment for arrears found stale. (1560-80 Pelham Pkwy. Assocs. v Errico, 177 Misc 2d 947, 948 [App Term, 1st Dept 1998], citing City of New York v Betancourt, 79 Misc 2d 907, 908 [App Term, 1st Dept 1974].)

The parties agree that respondent has not paid rent from August 2007 through May 2009; this satisfies the first element of laches. Petitioner seeks rent from August 2007 and failed to bring a nonpayment proceeding until April 2009; this satisfies the second element. Throughout the nearly two-year delay — from August 2007, when respondent stopped paying rent, until April 2009, when petitioner instituted this proceeding — petitioner failed to issue a rent demand to respondent notifying her that it would assert its rights; this satisfies the third element. Respondent will be unduly injured or prejudiced if relief is afforded to petitioner. (See Marriott, 151 Misc 2d at 941-942.) Respondent has sworn in an affidavit that she has neither the current income nor the means to raise funds to offset the substantial arrears. This satisfies the fourth element.

Petitioner fails to provide a reasonable excuse for its delay in bringing this nonpayment proceeding for arrears. To justify its delay in bringing a nonpayment proceeding against respondent for arrears, petitioner notes that it brought prior proceedings against respondent and that if any delay exists, it is only a slight delay. Petitioner cited prior cases it commenced against respondent under index numbers 075207/2007, 088325/2007, and 081883/2008. The two most recent holdover proceedings (088325/07 and 081883/08) were pending during the alleged period of unpaid rent. Both these cases were discontinued, and the settlements did not require payment [*4]for use and occupancy. When index number 081883/08 was discontinued, with prejudice, petitioner withdrew its request for use and occupancy for arrears that had accrued through August 2008. The settlement resulted only in petitioner's acknowledging respondent's tenancy and providing a renewal lease.

Given this history, the court finds that petitioner may not rely on the prior proceedings to justify its delay in seeking rent or use and occupancy. Were the law otherwise, a landlord would bring multiple proceedings, some of them without merit, and ultimately secure an eviction simply because the landlord allowed arrears to accrue beyond what a social services agency might pay, all because the landlord did not seek rent or use and occupancy when it could have.

The court must determine whether the rent that accrued within the six-year statute-of-limitations period is subject to a possessory judgment or solely a non-possessory judgment. Using its discretion and taking the equities into account, the court determines that petitioner may seek at trial a possessory judgment only for rent arrears that accumulated one year before the demand for rent was made, or rent owed from April 2008 to date. Petitioner may obtain the remainder at trial, but for a money-only (non-possessory) judgment.

Summary Judgment for Washing Machine & Extermination Fees

Petitioner also seeks to recover a possessory judgment for washing-machine and extermination fees, totaling $714.07. Contrary to petitioner's assertions, these charges, even if valid, do not constitute rent in a rent-stabilized tenancy. (A & E Tiebout Realty, LLC v Johnson, 2009 NY Slip Op 50715 [U] at *4 [Civ Ct, NY County 2009], citing Graham Realty Associates, LLC v Peller, 2006 NY Slip Op 50352 [U] at *1 [2d Dept 2006].) Thus, the court lacks the jurisdiction to dispose of petitioner's non-rent claims. (See Bedford Gardens Co. v Silberstein, 269 AD2d 445, 445 [2d Dept 2000]; Lincoln Amsterdam House, Inc. v Baxter, 249 AD2d 146, 146 [1st Dept 1998]; Garfunkel & Tauster Corp. v Gulinazzo, 24 Misc 3d 1205 [A], 2009 NY Slip Op 51269 [U] at *3 [Civ Ct, NY County 2009].) Respondent is awarded partial summary judgment dismissing petitioner's claims for the foregoing fees without prejudice to seeking their recovery in a plenary action.

Summary Judgment for Breach of Warranty of Habitability

RPL § 235-b provides that in all residential lease agreements, the landlord warrants that the premises leased are "fit for human habitation" and that occupants "shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. RPL § 235-b also "places an unqualified obligation on the landlord to keep the premises habitable" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]) throughout the term of the lease, an obligation that may not be waived or delegated. Respondents may receive an abatement of rent if they specify the nature of the defects and their duration. (Solow v. Wellner, 205 AD2d 339, 340 [1st Dept 1994], affd 84 NY2d 1006 [1994].) The proper measure for an abatement is the difference between the fair market value of the premises as warranted and the value of the [*5]premises during the period of the breach. (See Baldwin Merrick Assocs. v Relles, 20 Misc 3d 1112 [A], 2008 NY Slip Op 51331 [U] at *3 [Dist Ct, Nassau County July 2, 2008].)

The parties' papers present a triable issue of fact with respect to respondent's entitlement to an abatement for petitioner's alleged breach of the warranty of habitability. Respondent alleges in her affidavit that petitioner has failed to correct the conditions and that they continue to exist. According to HPD's inspection report dated November 2008, inspectors found eight violations, including mice, roaches, and bedbugs throughout the entire apartment. Respondent had sought repairs during the holdover proceeding under L & T Index No. 081883/2008. Petitioner maintains that respondent failed to grant access to the apartment to enable petitioner to effect repairs, but petitioner does not give details about when and under what circumstances respondent allegedly failed to grant access. Nevertheless, this court cannot determine the measures of any award, or rent abatement, to which respondent might be entitled.

Respondent's motion to for summary judgment for lack of subject-matter jurisdiction is denied. Respondent's motions for summary judgment to sever stale rent is granted to the extent indicated. Respondent's motion to sever washing-machine and extermination charges is granted. Triable issues of fact regarding the alleged breach of warranty of habitability remain for the trial court to determine.

This proceeding is adjourned for trial to January 6, 2010.

This opinion is the court's decision and order.

Dated: November 27, 2009

J.H.C.