Promesa HDFC v Frost
Annotate this CaseDecided on June 20, 2017
Civil Court of the City of New York, Bronx County
Promesa HDFC, Petitioner-Landlord,
against
Melody Frost, Respondent-Tenant.
71493/2016
Attorney for Petitioner:
Francisco Rivera, Esq.
Novick Edelstein Lubell Reisman Wasserman & Leventhal, P.C.
733 Yonkers Avenue
Yonkers, New York 10704
(914) 375-1011
Attorney for Respondent:
Andrew Darcy, Esq.
MFY Legal Services, Inc.
299 Broadway, 4th floor
New York, New York 10007
(212) 417-3700
Diane E. Lutwak, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of Respondent's Motion to Dismiss and Petitioner's Cross-Motion for Summary Judgment:
Papers/Numbered
Respondent's Notice of Motion with Affirmation, Affidavit & Exhibits A-G 1
Respondent's Memorandum of Law in Support of Motion 2
Petitioner's Notice of Cross-Motion with Affirmation, Affidavit & Exhibits A-F 3
Respondent's Reply Memorandum of Law 4
Petitioner's Reply Affirmation 5
Upon the foregoing papers, and for the reasons stated below, Respondent's Motion is granted and Petitioner's Cross-Motion is denied.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
This is a nonpayment eviction proceeding brought by Petitioner Promesa HDFC against Respondent Melody Frost, a Rent Stabilized tenant. The Petition, dated November 23, 2016, alleges that the monthly rent is $823.89, seeks alleged rent arrears totaling $22,442.34 and references an attached Rider. The Petition also states that the rent was demanded from the tenant by a five-day written notice, a copy of which is attached with proof of service. The Rent Demand, dated October 19, 2016, alleges rent arrears of $23,657.82 and, like the Petition, references an attached Rider.
The Rider to the Petition and Rent Demand (entitled "Resident Ledger"), covers the period of June 2, 2009 through September 1, 2016. The amount of $22,422.34 sued for in the Petition is comprised of the amount stated at the end of the Ledger's "Balance" column ($23,657.82), minus an "Amount Received" ($1215.46)[FN1] . While the Ledger dates back to June 2009, the relevant period of rent arrears consists of the 30 months which begin on April 1, 2014 and end with September 2016. The Ledger shows that just prior to this period, in March 2014, the "Base Rent" charged increased to $807.74 from $396, and, in the "Balance" column, the month opened with a credit of $1382.12 [FN2] and ended with a credit of $574.38 (carryover credit of $1382.12 minus rent of $807.74). The Ledger's "Description" column for March 2014 states on one line that "Tenant moved on 02/2014" and, on the following line, "Original tenant of record never move out. Her son Alfonso Bonaparte took the Sec 8 with him to his new apartment." Thereafter, for the period of April 1, 2014 through September 1, 2016, the Ledger's "Charge" column lists a monthly rent of $807.74 and the "Payment" column is empty.
Respondent pro se filed an Answer to the Petition on December 12, 2016, using the court's Answer form (CIV-LT-91 [Revised Oct 2014]) in which she checked off a "General Denial" and a defense that "The rent, or a part of the rent, has already been paid to the Petitioner." At the initial court appearance on January 4, 2017, the file jacket notation indicates that the case was adjourned to January 31, 2017 for Respondent to secure legal representation. After several more adjournments, and after Respondent retained counsel, Respondent moved to dismiss and Petitioner cross-moved for summary judgment.
PRIOR HOLDOVER PROCEEDING
Underlying both motions is the post-trial Decision/Order dated March 3, 2016 of the Honorable John Stanley in a prior licensee holdover eviction proceeding that Petitioner commenced against Respondent in 2014, Promesa HDFC v Melody Frost, Bronx Co L & T Index # 69039/14, the outcome of which is cryptically summarized in the March 1, 2014 entries in the "Description" column of Petitioner's Resident Ledger, discussed above. Copies of Judge Stanley's Decision/Order were provided to the court by both parties (Exhibit C to Respondent's [*2]Motion; Exhibit B to Petitioner's Cross-Motion).
In that prior proceeding, as described in Judge Stanley's Decision/Order, Petitioner claimed that Respondent, who had been the Rent Stabilized tenant since 1991, with a Section 8 subsidy administered by the New York City Department of Housing Preservation and Development (HPD), surrendered her tenancy in May 2012 via a handwritten note in which she stated that she was "turning over" her apartment and her Section 8 subsidy to her son Alonzo Bonaparte "because I am no longer living there do [sic] to my mental health." After receiving this note from Respondent, Petitioner acknowledged the succession rights of Mr. Bonaparte, who signed a lease for the apartment commencing February 1, 2013. Mr. Bonaparte also was deemed to be the "head of household" instead of Respondent for purposes of the HPD Section 8 subsidy. A year later, in February 2014, Petitioner transferred Respondent's son's tenancy to a smaller apartment at another address in the Bronx, "in accordance with HPD Section 8 regulations regarding household composition." Respondent's son moved out, taking the Section 8 subsidy with him but leaving his mother behind in the apartment, at which point Petitioner commenced the licensee holdover proceeding.
Judge Stanley dismissed the petition, holding that Respondent was "the tenant of record of the premises," Decision/Order at p. 11, not a licensee. Judge Stanley found that the evidence at trial established that Respondent was the tenant of record under two alternative theories: both because, contrary to Petitioner's position, there was no legally cognizable surrender by Respondent, and, alternatively, because Respondent met the definition of a successor to her son's tenancy.
In doing so, Judge Stanley left open the question of what type of lease at what rental amount Respondent was entitled to. Under the first theory — that Respondent's original tenancy was uninterrupted by the purported surrender — Respondent would have been entitled to a lease renewal based on her expired prior renewal lease. As that prior lease had a monthly rent of $776.68, applying Rent Guidelines Board Order (RGBO) #44, which was in effect at that time, a 1-year renewal would have raised Respondent's rent by 2% to $792.21 and a 2-year renewal would have raised Respondent's rent by 4% to $807.74. Under the second theory — that Respondent was entitled to succeed to the tenancy of her son, who, in turn, was a successor to her own original tenancy — Respondent would have been entitled to a lease renewal based on her son's expired lease [FN3] , and, in addition to the applicable RGBO increase, Petitioner would have been entitled to charge Respondent the second-successor vacancy increase permitted by Section [*3]2522.8(b) of the Rent Stabilization Code.
Although not explicitly stated in either party's motion papers, as explained below, the parties appear to have resolved the question Judge Stanley left open with a hybrid solution: Petitioner prepared and the parties executed on July 28, 2016 a two-year lease renewal commencing August 1, 2016 based not on Respondent's last expired lease renewal with a monthly rent of $776.68, but upon an alleged prior rent of $807.74 [FN4] , raising it by the 2% increase permitted by RGBO #47 to arrive at a current monthly rent of $823.90 [FN5] for the period of August 1, 2016 through July 31, 2018.
RESPONDENT'S MOTION AND PETITIONER'S CROSS-MOTION
In her motion, Respondent seeks dismissal of the Petition, arguing that it is based on a defective rent demand and a non-existent rental agreement. Respondent argues that the Rent Demand "suggests that there was a lease between Petitioner and Ms. Frost dating back to March 2014 at the amount of $807.74", Memorandum of Law in Support at p. 4, when in fact no such lease exists. Respondent attaches copies of her current Renewal Lease, signed on July 28, 2016 for a two-year term beginning August 1, 2016 at the monthly rate of $823.90 (Exhibit F), and the last Renewal Lease she had prior to this one, signed on December 21, 2010 for a two-year term beginning February 1, 2011 at the monthly rate of $776.68 (Exhibit D). Respondent also seeks attorney fees.
Petitioner opposes Respondent's motion, arguing that Respondent failed to raise the defense of defective rent demand in her Answer and, accordingly, "Respondent cannot now raise this defense over three months after the issue has been joined, without leave of Court." Affirmation in Opposition at ¶ 23. Petitioner also avers that the rent demand is legally sufficient.
In its cross-motion, Petitioner seeks summary judgment, arguing that it has established all the elements of its prima facie case for nonpayment of rent totaling $29,265.21 as of April 1, 2017, as per its managing agent's affidavit sworn to on April 18, 2017 and the current Rent History she prepared and attached as Exhibit C. Petitioner also attached to its cross-motion copies of its multiple dwelling registration statement (Exhibit D), 2016 Registration Rent Roll Report from the New York State Division of Housing and Community Renewal's (DHCR) Office of Rent Administration, certified on January 27, 2017 (Exhibit E), and deed (Exhibit F). While the DHCR Rent Roll Report reflects a registration filed on 09/01/16 for Respondent as the Rent Stabilized tenant of Apartment 3B with a monthly rent of $807.74, no lease dates are stated in the "Lease Began" and "Lease Ends" columns and Petitioner did not attach copies of any leases to its motion papers.
DISCUSSION
A nonpayment proceeding must be predicated upon an agreement by the tenant to pay the rents demanded. RPAPL 711 (2); Matter of Jaroslow v Lehigh Val RR Co (23 NY2d 991, 246 NE2d 757, 298 NYS2d 999 [1969]); East Harlem Pilot Block Bldg IV HDFC Inc v Diaz (46 Misc 3d 150, 9 NYS3d 592 [App Term 1st Dep't 2015]); 559 Apts LLC v Caver (49 Misc 3d 1214, 28 NYS3d 648 [Civ Ct NY Co 2015]); Promenade Global LLC v Abraham (44 Misc 3d 1205, 997 NYS2d 100 [Civ Ct NY Co 2014]). Further, to maintain a cause of action for nonpayment of rent, the predicate rent demand required by RPAPL § 711(2) must "clearly inform the tenant of the particular period for which a rent payment is allegedly in default and the approximate good faith sum of rent assertedly due for each such period." Schwartz v Weiss-Newell (87 Misc 2d 558, 561, 386 NYS2d 191 [Civ Ct NY Co 1976]), quoted in 542 Holding Corp v Prince Fashions, Inc (46 AD3d 309, 848 NYS2d 37 [1st Dep't 2007]).
In this nonpayment proceeding, Petitioner seeks to recover from Respondent unpaid rent for the 30-month period of April 2014 through September 2016 at the monthly rate of $807.74. However, Petitioner treated Respondent as a licensee from the time her son moved out in February 2014 until, following Judge Stanley's issuance of his Decision and Order on March 3, 2016 in the prior holdover proceeding, Petitioner issued and the parties executed a two-year Renewal Lease commencing August 1, 2016 at a monthly rate of $823.90. There was never a lease agreement between the parties for Respondent to pay a monthly rent of $807.74, contrary to what is reflected in Petitioner's Riders to the Petition and the predicate Rent Demand and, after the expiration of Respondent's lease for $776.68 that ran from February 1, 2011 through January 31, 2013, there was no lease between them again until the last two months of the 30-month period covered by the Petition. Rather, upon the expiration of Respondent's prior lease, Petitioner entered into a lease with Respondent's son beginning February 1, 2013, a copy of which was admitted into evidence in the licensee holdover proceeding (although not provided by either side in support of the motions now before this court). As found by Judge Stanley, that lease "lists no other tenant or occupant other than Alonzo Bonaparte." Decision & Order dated March 3, 2016, Promesa HDFC v Frost, Bronx Co L & T # 69039/14 at p. 2 (Respondent's Exhibit C/Petitioner's Exhibit B). When Respondent's son moved out, it was because Petitioner "transferred Alonzo Bonaparte to a one bedroom apartment at 765 E. 166th Street," id., and rather than providing Respondent with a lease in her own name at that point Petitioner chose to treat her as a licensee and commence an eviction proceeding against her.
Accordingly, the Petition must be dismissed both because of the absence of a rental agreement during 28 out of the 30 months sued for and because the predicate rent demand is fatally flawed. The most Petitioner could have sued for in this proceeding was rent at the current lease rate of $823.90 beginning with the month of August 2016. The rent demand seeks rent for far more many months than what Petitioner was permitted to sue for, at a monthly rate that there has never been an agreement for Respondent to pay. A proper predicate rent demand is a condition precedent to commencement of a nonpayment proceeding and cannot be amended nunc pro tunc. Chinatown Apts v Chu Cho Lam (51 NY2d 786, 787, 412 NE2d 1312, 433 NYS2d 86 [1980]); Cypress Ct Assoc v McLauren (33 Misc 3d 1203[A], 938 NYS2d 226 [Civ Ct Kings Co 2011]); Vartarian v Brady (184 Misc 2d 333, 707 NYS2d 285 [Civ Ct NY Co 1999]); Parkchester Apts Co v Walker (1995 NY Misc LEXIS 738, 213 NYLJ 123 [Civ Ct Bx Co 1995]).
Petitioner's argument that Respondent waived her defense of defective rent demand by failing to include it in her Answer is unavailing. A proper rent demand is a condition precedent [*4]to a nonpayment proceeding which Petitioner must plead and prove along with the other elements of its case. RPAPL § 711(2). See, e.g., JDM Washington St, LLC v 90 Washington Rest Assoc, LLC (36 Misc 3d 769, 950 NYS2d 647 [Civ Ct NY Co 2012])("the service of a valid predicate notice is a condition precedent for a nonpayment proceeding, and nothing in the RPAPL precludes respondents from raising the issue at trial"); Zenila Realty Corp v Masterandrea (123 Misc 2d 1, 472 NYS2d 980 [Civ Ct NY Co 1984])(a proper rent demand is "a long-established prerequisite to the maintenance of a summary proceeding"). Respondent's "General Denial" of each allegation in the Petition is all that is needed to raise a challenge to the adequacy of the rent demand.
CONCLUSION
Accordingly, Respondent's motion is granted, Petitioner's motion is denied and the Petition is dismissed, without prejudice to Petitioner's claim for rent due for the period of August 1, 2016 forward and Respondent's defenses thereto. Respondent's request for an award of attorney's fees is denied without prejudice, as Respondent has neither proffered a lease with a provision for attorney's fees nor briefed this issue.
Dated: June 20, 2017
Bronx, New York
_________________________
Diane E. Lutwak, Hsg. Ct. J. Footnotes
Footnote 1:There is no explanation provided for the "Amount Received" of $1215.48 typed in at the bottom of the Ledger, and since the "Payment" column is empty for the months of March 2014 through September 2016, it is unclear when this money was received or which months' rent it was applied to.
Footnote 2:The Resident Ledger reflects that Respondent had been carrying over a credit since June 2013, when Petitioner received "Emergency Public Assistance" checks from DSS that exceeded the amount owed at that time.
Footnote 3:Neither party provided a copy of the son's lease, about which all that is known is what Judge Stanley describes in his Decision/Order, namely that it started February 1, 2013 and was in his name alone. The amount of rent he was charged is not stated anywhere, although, presumably, if he was treated as a seamless successor tenant it would have been calculated by adding the increase permitted by Rent Guidelines Board Order #44 to Respondent's prior lease renewal which ended January 31, 2013. If he chose a two-year lease, applying the 4% increase of RGBO #44 he would have been charged a rent of $807.74.
Footnote 4:This may have been the amount stated in Respondent's son's lease. See fn 3, supra.
Footnote 5:Although inconsequential, the court notes that while the lease states that the monthly rent is $823.90, the Petition states that the monthly rent is $823.89.
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