Payne v Genato

[*1] Payne v Genato 2010 NY Slip Op 52086(U) [29 Misc 3d 1229(A)] Decided on December 2, 2010 City Court Of Rye Latwin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2010
City Court of Rye

Walter Payne, Plaintiff,

against

Betty Grace Genato d/b/a B & B Equities Co., Defendant.



SC10-95



Plaintiff Pro Se

Defendant by Michael F. X. Ryan, Esq.)

Joseph L. Latwin, J.

This is a small claims action seeking return of a security deposit. The defendant moves to dismiss the action based upon: (1) lack of subject matter jurisdiction; & (2) failure to join a necessary party.

For the purposes of this motion only, the Court accepts the facts set forth in the defendant's attorney's affirmation as follows:

Plaintiff and plaintiff's wife [FN1] leased premises in Scarsdale from defendant. Plaintiff and plaintiff's wife paid defendant a security deposit. Defendant resides in Scarsdale. Plaintiff now resides in New Hampshire. When the lease between the parties expired, Plaintiff told defendant that he would like to renew the lease, however no new lease was signed. Plaintiff left the premises. The parties agree there is at least one months rent due. Defendant claims there was damages to the premises.

Defendant asserts that this Court lacks subject matter jurisdiction since this [*2]action arises from a landlord-tenant relationship and therefore should be a landlord-tenant case and not a small claims action. Since the leased premises are not in Rye and neither party resides in Rye, defendant claims that this Court lacks subject matter jurisdiction since the Courts landlord-tenant jurisdiction requires a nexus to Rye.

Subject Matter Jurisdiction

Subject matter jurisdiction is the competence of the court to adjudicate a certain kind of case. City Courts are constitutional courts. New York Constitution article VI, § 17. The New York Constitution grants City Courts subject matter jurisdiction as "prescribed the legislature but not in any respect greater than the jurisdiction of the district court . . ." New York Constitution article VI, § 17(a). Under New York Constitution article VI, § 16, district courts have jurisdiction not greater than the courts for the city of New York however in actions and proceedings for the recovery of money, actions for the recovery of chattels and actions and proceedings for the foreclosure of mechanics liens and liens on personal property, the amount sought to be recovered or the value of the property shall not exceed fifteen thousand dollars exclusive of interest and costs. The maximum jurisdictional amount was increased from $6,000 to $15,000 by Constitutional Amendment adopted at the general election held in 1983.

In 1964, pursuant to article VI, § 17(b) of the New York State Constitution, the Legislature adopted the Uniform City Court Act ("UCCA") to regulate the City Courts, and establish uniform jurisdiction, practice and procedure. Laws of 1964, ch 497. Among the provisions of the UCCA in which the Legislature granted City Courts jurisdiction are: (1) UCCA § 202 (money actions); (2) UCCA § 203(a)(8) (formerly 204) (actions under RPAPL Article 7-A); and (3) UCCA article 18 (small claims).

In actions for money under UCCA § 202, the City Courts have a residence requirement that is not deemed jurisdictional and may be waived by a party, but, despite the waiver, may subject a case to dismissal on the court's initiative. UCCA § 213(d). See also Casden v. Broadlake Corp., 47 Misc 2d 847, 263 NYS2d 345 [New Rochelle City Ct 1965] (lack of residence may be waived) and Downes v. Cirelli, 52 Misc 2d 637, 276 NYS2d 542 [Yonkers City Ct 1967] (dismissal lies within court's discretion even where parties submit to the court's jurisdiction). [*3]Here, neither party resided nor has any nexus to the City of Rye. Therefore, were this action brought under UCCA § 202, the Court would lack jurisdiction.

Actions involving real property under UCCA § 203(a) include what is commonly referred to as landlord-tenant proceedings; those proceeding brought to recover possession and for rent under RPAPL article 7-A. In actions involving real property under UCCA § 203(a), City Courts have jurisdiction "provided that the real property involved is located in whole or in part within the city." The property leased by plaintiff from defendant was in Scarsdale, not Rye. Thus, if this action was based upon UCCA § 203 (a), the Court would lack jurisdiction.

Small claims are "any cause of action for money only not in excess of five thousand dollars exclusive of interest and costs, provided that the defendant either resides, or has an office for the transaction of business or a regular employment, within the county." UCCA § 1801. Unlike other jurisdictional bases, the only requirements are that the jurisdictional amount not be exceeded and the defendant resides or has an office in the county. Here, defendant resides in Scarsdale in Westchester County the county in which the Rye City Court sits.

What is an action to recover a security deposit? A security deposit remains the property of the tenant (General Obligations Law § 7-103[1] ) and must be returned at the conclusion of the tenancy (Cruz v. Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005] ) absent, for example, proof that the tenant caused damage beyond that attributable to ordinary wear and tear (e.g. Finnerty v. Freeman, 176 Misc 2d 220, 222 [App Term, 9th & 10th Jud Dists 1998]). Recovery of a security deposit cannot occur until after a tenant is out of possession for otherwise, the landlord would not be able to ascertain whether the tenant had damaged the premises when the tenant moved out. If a tenant is removed from possession, the lease is as effectively canceled as of the date of the removal as if a warrant of eviction had been issued on that day. Cornwell v. Sanford, 222 NY 248, 252 [1918]); & Harris v. Apolant, 5 Misc 3d 1009(A), 798 NYS2d 709 [Nassau County Dist Ct 2004]. Compare with Wulf v. Colf, 286 AD2d 895, 730 NYS2d 644 [4th Dept, 2001] (co-extensive vendor-vendee relationship between landlord and tenant did not merge). Judicial decisions have uniformly held that the moving out from the leased premises by the tenant , enabling thereby the landlord to take peaceable possession of them, after [*4]the issuance and service of the precept in the summary proceedings, cancels the lease and annuls the relation of landlord and tenant as of the time of the removal. As Judge Cardozo said, "After the tenant had been ejected in summary proceedings, the lease was at an end. What survived was a liability, not for rent, but for damages." Hermitage Co. v. Levine, 248 NY 333 [1928]. Thus, once a tenant is out of possession, a summary proceeding is no longer available to either landlord or tenant, but they must find remedies in a claim for must be brought in a plenary action or a small or commercial claims action depending on the amount in controversy and the character and residence of the parties. Here, the remedy is for money damages, not for rent or a possessory interest.

The plaintiff has the initial choice of forum in seeking to recover damages. Here, plaintiff has chosen the small claims part of the Rye City Court. Since the amount sought is less than the jurisdictional limit of small claims and the defendant resides in Westchester County, this Court has subject matter jurisdiction.

Necessary Party

Defendant asserts that the plaintiff's wife, a co-tenant under the lease, is a necessary party. Plaintiff's wife is listed on the lease as a co-tenant. As such, it appears that plaintiff's wife has an interest in the security deposit. If plaintiff is awarded a judgment, the question of the defendant's liability to the plaintiff's wife for the security deposit would remain. To fail to account for her interests would possibly subject the defendant to duplicative or contradictory judgments.

While the UCCA has no specific provision dealing with parties, UCCA 1804 provides "The provisions of this act and the rules of this court, together with the statutes and rules governing supreme court practice, shall apply to claims brought under this article so far as the same can be made applicable and are not in conflict with the provisions of this article." Accordingly, consistent provisions of the CPLR apply to small claims proceedings.

CPLR 1001(a) requires joinder of necessary parties. It says, "Persons who [*5]ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant." In order to afford complete relief and prevent conflicting or duplicative judgments, plaintiff's wife must be joined as a party or her interests accounted for. This may be done by the relinquishing of her rights or the assignment to plaintiff.

Providing the parties with substantial justice according to the rules and principles of substantive law (UCCA §§ 1804, 1807; see Cosme v Bauer, 27 Misc 3d 130(A), 2010 NY Slip Op 50638(U) [App Term, 9th Jud Dist April 8, 2010]; Ross v Friedman, 269 AD2d 584 [2nd Dept 2000]; & Williams v Roper, 269 AD2d 125 [1st Dept 2000]) (see also, Condon Tree Serv. v Melvin, 2010 NY Slip Op 52023(U) [App Term, 9th and 10th Jud Dists, November 19, 2010]; & Rotem v. Hochberg, 28 Misc 3d 127(A), Slip Copy, 2010 WL 2681875 (Table) [App Term, 9th and 10th Jud Dists, 2010]), the Court finds that the motion to dismiss for lack of subject matter jurisdiction is denied and the motion to dismiss for failure to join a necessary party is granted to the extent that plaintiff's wife fails before the trial to assign to plaintiff or relinquish her rights in the security deposit.

Accordingly, it is,

ORDERED that the defendant's motion to dismiss the action for lack of subject matter jurisdiction is denied and the motion to dismiss for failure to join plaintiff's wife, a necessary party, is granted to the extent that plaintiff's wife fails before the trial to assign to plaintiff or relinquish her rights in the security deposit., and it is further

ORDERED this matter shall be tried before the Court on March 16, 2011 at 5:45 p.m.

December 2, 2010_________________________

JOSEPH L. LATWIN [*6]

Rye City Court Judge

ENTERED

__________________

Mary Jo Garrity

Appeals

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk's office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515.

Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District.

An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant.

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b). Footnotes

Footnote 1: In the style of the book of Genesis of nameless spouses, plaintiff's wife shall be referred to simply as "plaintiff's wife" just as was Lot's wife, (Gen 13:1 and 19:26) and Potiphar's wife (Gen 39: 7 and 8), neither of whom, unfortunately came to a good end.