BX-9E Partners LP v Almonte
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BX-9E Partners LP v Almonte 2017 NY Slip Op 31853(U) September 6, 2017 Civil Court of the City of New York, New York County Docket Number: 30166/2017 Judge: Sabrina B. Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX: SMALL CLAIMS PART X BX-9E PARTNERS LP, HON. SABRINA B. KRAUS Claimant, DECISION & ORDER Index No.: SCB 30166/2017 -against- WENDY ALMONTE Defendant, X BACKGROUND BX-9E PARTNERS LP (Claimant) sues WENDY ALMONTE (Defendant) for $5000 for damage to the elevator doors at 30 East Clarke Place, Bronx, New York 10463 (Subject Premises). The trial took place on September 5, 2017, and at the conclusion of the trial, the court reserved decision. FINDINGS OF FACT Claimant is the owner of the Subject Premises pursuant to a deed dated September 12, 1995 (Ex. 1). Defendant is the rent stabilized tenant of record for apartment 4C at the Subject Premises, pursuant to an original lease dated July 16, 2004 (Ex. 2) and most recently renewed for a two year period through and including July 31, 2008 (Ex. 3). Defendant is also the recipient of a section 8 subsidy for apartment 4C at the Subject Premises. Originally, Defendant lived in apartment 4C with her two sons, Samuel and Saul, but 1 [* 2] slightly over a year prior to the trial in this matter Saul moved out. 1 Saul was also removed from Defendant’s family composition and as a legal occupant of the Subject Premises. At or about the time that Saul moved out, Henry Ramirez (Ramirez), the Superintendent of the Subject Premises sold him a key to the entrance of the Subject Premises for $20 that Saul subsequently used to access the building. On April 11, 2017, at approximately 11:30 pm, Saul entered the lobby of the Subject Premises, by use of the key he had purchased from Ramirez, and repeatedly kicked the elevator doors in the lobby, thereby damaging the doors. This act was captured on video tape by the security camera in the building and the video was admitted into evidence at trial (Ex 4). Defendant’s credible and undisputed testimony was that she neither let Saul into the building on that date, nor was he there to visit her. Rather Saul was going to apartment 2B on the second floor of the building to purchase marijuana. Claimant obtained a proposal for repairs which was approved by the managing agent. The proposal was for $6342.00. Virginia Colon (Colon) testified that the proposal was approved and the work was done, however, no evidence of payment for the work was provided by claimant at trial.2 1 To the extent that Defendant’s testimony and the testimony of Henry Ramirez conflicted on this point and other points, the court credits the testimony of Defendant over Ramirez. 2 Only after the court inquired as to proof of payment, did counsel inquired of his witness as to whether she had proof of same in court, and she stated she did not. Counsel sought a continuance to provide such proof, but the application for a continuance was denied by the court given that it was made after commencement of the trial, only upon the court’s inquiry as to proof of payment, and as Defendant was not represented by counsel. 2 [* 3] Paragraph 13 of the lease between the parties addresses repairs and provides in pertinent part: Renter will reimburse Owner all costs incurred by Owner to remedy damages to the apartment or the building caused by Renter, members of Renter’s family, Renter’s guests or Renter’s household staff. Such sums shall be added rent. This type of contractual provision is considered an indemnification provision [Bender v Niebel 11 Misc.3d 136(A)]. “A contract imposing a duty to indemnify must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed (Preferred Mutual Insurance Co v Pine 44 AD3d 636, 639).” In this case, while Saul is the Defendant’s family member, Saul was not at the building based on any family connection to Defendant. Rather, Saul gained access through a key improperly provided to him by Claimant’s agent, and had come to see a resident in a different apartment, not sue to the fact that Defendant lived in the building. The parties did not intend for Defendant to indemnify Claimant for the intentional torts of individuals who were at the building for reasons wholly unrelated to their relationship with the Defendant, and who gained access to the building through the improper conduct of Claimant or its agents. Moreover, Claimant failed to properly establish damages due under the contract. The lease states Defendant will “reimburse” Claimant for all costs “incurred.” Where claim is based on an indemnification provision in a contract there must be proof of payment, and proof of payment alone will be sufficient unless payment was in bad faith or for an unreasonable amount (Lee v TF DeMilo Corp 29 AD3d 867). A proposal for a repair (Ex 5) is insufficient to establish damages pursuant to such a provision, which requires proof of the amount actually spent on the 3 [* 4] repair, nor was the document submitted by claimant otherwise sufficient to establish damages under §1804 of the NYCCA. Based on the foregoing the action is dismissed with prejudice. This constitutes the decision and order of the court. Dated: Bronx, New York September 6, 2017 ___________________ Sabrina B. Kraus, JCC TO: AMSTERDAM & LEWINTER LLP Attorneys for Claimant By: LEE WACKSMAN, ESQ. 9 East 40th Street, 11th Floor New York, NY 10016 85 West 188th Street, Suite AA Bronx, New York 10468 WENDY ALMONTE Defendant Pro Se 30 East Clarke Place, Apt. 4C Bronx, New York 10452 4 [* 5] 5
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