Kaphan v Zoom Wireless of Greenvale, Inc.
Annotate this CaseDecided on March 12, 2010
District Court of Nassau County, First District
Mathew Kaphan, Petitioner(s)
against
Zoom Wireless of Greenvale, Inc. a/k/a AWNY INC. d/b/a VERIZON, BAWA BHASIN, Respondent(s)
SP 006932/09
Somer & Heller, LLP, Attorneys for Petitioner, 2171 Jericho Turnpike, Suite 350, Commack, New York 11725, 516-462-2323; Gary P. Field, Esq., Attorney for Respondent, 425 New York Avenue, Suite 204, Huntington, New York 11743, 631-351-8787.
Scott Fairgrieve, J.
Respondent-Tenant, Zoom Wireless of Greenvale, Inc., moves by way of order
to show cause to vacate the judgment and warrant of eviction entered in favor of the Petitioner,
dismiss the entire proceeding and permit reinstatement of the lease. Petitioner-Landlord Mathew
Kaphan opposes the motion.
FACTS AND PROCEDURAL HISTORY
Petitioner initiated this non-payment proceeding on November 23, 2009 after rent checks for the months of September and October 2009 were returned to Respondent for insufficient funds.
On the original return date of this proceeding, December 7th, 2009, an attorney representing the Respondent corporation appeared and obtained an adjournment to December 22nd, 2009. On the appearance date of December 22nd, no attorney appeared for the Respondent corporation. Instead, Rameet Bhasin, Vice President of the corporation appeared and stated, on the record, that her attorney was not present due to a holiday. As the Respondent corporation was not properly represented by an attorney, as required by CPLR § 321, a default judgment was entered in favor of Petitioner, along with a warrant of eviction with no stay.
The judgment of possession and warrant were signed by the Court on January 13, 2010. A
review of the recorded Court proceedings on December 22nd, 2009, demonstrates that
respondent [*2]made no offer of rent payments.
ORDER TO SHOW CAUSE
In its order to show cause, Respondent claims that Rameet.Bhasin appeared in court on December 22nd, 2009 to tender to Petitioner's counsel three corporate checks representing rent for the months of October, November and December 2009, but they were refused. In its opposition, Petitioner's counsel asserts that no such checks were tendered.
On February 3rd, 2010 (six weeks and one day after the default judgment was entered) Respondent unilaterally deposited directly into Petitioner's bank account four checks totaling $20,000.00 "in order to pay all outstanding rent due and owing." Respondent contends that this action made Petitioner whole.
Subsequently, on February 4th, 2010, Respondent's attorney writes to Petitioner's attorney, stating:
Please find enclosed copies of certified checks deposited in the Landlord's account yesterday representing rent paid through January. Please note that February's rent shall be paid in the normal course of the parties' business.
In response, Petitioner's counsel, in a letter dated February 8th, 2010, informed Respondent that:
Please be advised that the direct deposit by your client into the landlord's checking account
does not cure the default. The payments totaling $20,000.00 satisfy the judgment and do not take
into account January or February use and occupation, which would be rejected in any event. All
the payment did was satisfy the judgment so that the sheriff would not execute on same;
however, the warrant remains valid. There is no landlord-tenant relationship any longer between
these parties, and the sheriff has been directed to proceed with the eviction.
REINSTATEMENT OF A LEASE
The issuance of the warrant of eviction by this Court terminated the landlord-tenant relationship between Petitioner and Respondent (see, Holy Props. v. Cole Prods., 87 NY2d 130, 637 NYS2d 964, 661 NE2d 694, 1995 ; Iltit Assoc. v. Sterner, 63 AD2d 600, 405 NYS2d 68 1 Dept., 1978).
The court stated in New York City Housing Authority v. Luis Torres and Marie Torres (61 AD2d 681, 403 NYS2d 527, 1st Dept., 1978):
Analysis of this case must begin with the unquestioned premise that the issuance of a warrant of eviction annuals the relationship of landlord and tenant (RPAPL, § 749(3); 300 West [*3]Realty Co. v. Wood, 69 Misc 2d 580, 581, 330 NYS2d 524, 526, aff'd 69 Misc 2d 582, 330 NYS2d 527 (Appellate Term, 1st Dept.)), and the landlord is no longer obligated to accept a tender of rent.
However, it is within the rights of Petitioner and Respondent, subsequent to the termination of their relationship, to revive the tenancy. But, to do so, the landlord must be found to have had the intent of reinstatement (DiGiglio v. Tepedino, 173 AD2d 763, 571 NYS2d 301 N.Y.A.D. 2 Dept., 1991). Respondent, in the instant case, has failed to prove such intent ever existed.
In Rasch's Landlord and Tenant, Fourth Edition, § 46:23 addresses reinstatement of a lease and its dependence on intent:
§ 46:23. Effect of Acceptance of Rent after Issuance of Warrant
. . .
Nevertheless, if it appears that the payment and acceptance of the rent were not intended as a revival of the lease but merely as a satisfaction of the indebtedness, then the payment will not constitute a waiver of the cancellation.
Petitioner in the instant case explicitly stated his lack of intent in reinstating Respondent's tenancy in the letter dated February 8th, 2010, as did he convey that the money tendered would satisfy the money judgment but not the issue of possession.
In STP Associates LLP v. Schauer (2010 WL 309008 [N.Y.Dist.Ct]), this Court rejected Respondent's argument that the landlord's acceptance of rent manifested the intent to reinstate her tenancy:
Furthermore, even if it was determined that the rent was not returned within a reasonable time period, the court must make a determination of whether there was an intent to reinstate the landlord-tenant relationship by accepting rent.
When a landlord accepts payment from a tenant after the issuance of a Warrant of Eviction and Judgment of Possession, the court must determine whether it was the landlord's intent, upon receiving said payment, to reinstate the landlord-tenant relationship.(284 Central Owners Corp. V. Alexandre and Marin, NYLJ Feb. 21, 2007 at p. 24 col. 1).
It was clear from the accompanying letters that there was never any intention to reinstate the relationship.
In the case at bar, no evidence of reinstatement of the landlord-tenant relationship has been
demonstrated by Respondent.
JANUARY 7th, 2009
FIRE
[*4]On January 7th, 2009, a
fire damaged the subject premises and Respondent was displaced until July 31st, 2009. Under
Article 12 of the Lease between the parties:
Article 12
DAMAGE BY FIRE, ETC.
12.01 - Restoration of Premises
. . .
In the event the Premises are completely or partially destroyed or so damaged by fire or other hazard that they cannot be reasonable used by Tenant or can only be partially used by Tenant and this Lease is not terminated as above provided, there shall be no abatement of rent, it being understood and agreed, Tenant shall, at its cost and expense procure necessary insurance to protect itself against any interruption of its business.
Respondent-Tenant, therefore, had the responsibility to continue making rent payments to Petitioner-Landlord, despite its inability to conduct business.
Respondent states it expended more than $162,000.00 in restoring the leased premises, approximately $83,000.00 of which was reimbursed by insurance proceeds, leaving Respondent with losses of approximately $80,000.00. Respondent's counsel states that the law would abhor a forfeiture, given the investment in the property. Petitioner, however, claims that Respondent did not pay anything as all expenses came from Petitioner's full replacement cost insurance, as required under ¶ 11.03 of the lease.
Proof of Respondent's expenditures, presented to this Court in the form of checks (some made to "cash") and bank statements showing transfers, total only $26,296.83. And a list of expenses provided by Respondent totals only $79,504.83, which contradicts the $162,000.00 of payments alleged in its affidavit. No evidence of any expenditures approaching $162,000.00 has been provided.
By Respondent's own admission, insurance proceeds have totaled approximately $83,000.00,
more than the $79,504.83 in its itemized list, and much more than the $26,296.83 in checks and
transfers presented. Respondent, therefore, has not demonstrated that an eviction would be unjust
or inequitable.
CONCLUSION
Respondent's order to show
cause is denied in its entirety. The default judgment in favor of Petitioner is upheld. Petitioner
may proceed with the existing warrant of eviction, no further seventy-two (72) hour notice is
required.
So Ordered:
/s/
DISTRICT COURT JUDGE
[*5]
Dated:March 12, 2010
CC:Somer & Heller, LLP
Gary P. Field, Esq.
SF/mp
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