Morgan Webster Manor, LLC v McCann

[*1] Morgan Webster Manor, LLC v McCann 2013 NY Slip Op 51768(U) Decided on October 28, 2013 Just Ct Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2013
Just Ct of the Town of Webster, Monroe County

Morgan Webster Manor, LLC, Petitioner,

against

Nicole McCann, Respondent.



13100006



Duwaine Bascoe, Esq. of Counsel to Woods Oviatt Gilman LLP, for the Petitioner.

Nicole McCann, Respondent, Pro Se.

Thomas J. DiSalvo, J.

History of the Case.

Thomas J. DiSalvo, J. The respondent entered into a lease relative to an apartment at

42 Webster Manor Drive, Apt. 7, in the Town of Webster on April 16, 2013. The petitioner

served the respondent with a "Three (3) Day Notice to Pay Rent or Quit and Surrender

Possession of Premises" dated August 13, 2013. The petitioner filed a Notice of Petition and

Petition with the court on October 1, 2013. The matter was returnable in court on October 8,

2013 at 9:30 A.M. An affidavit of Service was filed with the court which attested to service by

"nail and mail". Nevertheless, the respondent duly appeared in court at the appointed date and

time. The petition alleged the non-payment of rent for the months of July, August, September,

October, plus a rent credit refund, late fees, disbursements and attorneys fees totaling $2,185.00

plus an October per diem. At that time the respondent indicated her disagreement with the [*2]

amount allegedly owed to the petitioner. She also indicated that she was no longer living in the

apartment in question. The matter was set down for a hearing on October 25, 2013.

Facts of the Case.

On the date of the hearing the petitioner presented one witness, to wit: Matthew Ward,

the regional property manager of the petitioner. He testified to the existence of the lease and the

amount owed to date on said lease. The respondent then took the stand and, after having been

sworn, testified by narrative as to her defenses to the amount demanded. She testified that she

moved into the apartment on April 19, 2013. She further testified that she was constantly

harassed by a fellow tenant in her building. She admitted under cross examination as to being

in arrears for rent through August. However, she testified to having moved out of the apartment

on August 17, 2013, after receiving the "Three (3) Day Notice to Pay Rent or Quit and Surrender

Possession of Premises" on August 13, 2013. She testified to having returned the keys to the

petitioner's drop box upon vacating the premises. She therefore argued that she did not owe any

rent for September or October. On cross-examination she testified to leaving a table and desk in

the apartment. There was no testimony that she ever demanded return of that property. In fact it

was the respondent's testimony that she did not wish to retain those items. The petitioner's

position was, that since the said table and chairs were in the apartment at the time the action was

commenced, the respondent was still in possession of the apartment.

Issue Presented.

Was there a landlord/tenant relationship existing at the commencement of the action

herein?

Legal Analysis. [*3]

The petitioner presented no evidence that would show that the respondent resided in the

premises after August 17, 2013. Nor did the petitioner contest receipt of respondent's keys to

the apartment. The respondent credibly testified to having vacated the apartment on August 17,

2013 and to turning in her keys to the apartment to the petitioner. Petitioner's argument that the

table and chairs that remained in the apartment constituted the continuation of the

landlord/tenant relationship is without merit. The fact that the table and chairs remained in the

apartment for about a month and half without any demand for their return by the respondent

evidenced an intent to abandon said items of personal property. (See Henryka vs. Amalgamated

Warbasse House, Inc., 34 Misc 3d 157(A) 2012 NY Slip Op. 50421[U], *2). Return of

respondent's keys to the apartment to the petitioner via its drop box evidenced an intention to

vacate the premises.

Conclusions of Law.

Real Property Actions and Proceedings Law Section 711 requires that in order for a

Summary Proceeding action to lie, the respondent must be in possession of the premises at the

time of commencement of the action. In this case the evidence is overwhelming that the

respondent had not resided in the apartment in question for approximately six weeks at the time

the action was commenced. As a result, the petition herein is dismissed. This constitutes the

decision and order of this court.

Dated: October 28, 2013

Webster, New York

__________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice