Morning Light Realty, LLC v BrownAnnotate this Case
Decided on October 24, 2018
City Court, Albany County
Morning Light Realty, LLC, Petitioner-Landlord,
Gregory V. Brown, Respondent-Tenant.
John T. Keenan III, Esq. Albany, NY, for Petitioner-Landlord.
Michael F. O'Brien, Esq. Albany, NY, for Respondent-Tenant.
Thomas Marcelle, J.
The landlord and tenant have a long and adversarial history—and to fully understand the decision in this case, that history, in brief, must be recited. For a number of years, Gregory V. Brown ("Brown") rented an apartment on the second floor at 285 State Street in the City of Albany. He worked for his former landlord doing basic janitorial work in the apartment building in exchange for $50 per month. Morning Light Realty ("MLR") purchased the building in 2015 and kept Brown employed on the same basis as he had previously been. Things went well for a while. In June 2016, MLR and Brown agreed on a one-year lease extension. It appears that sometime in early 2017, MLR discharged Brown from his janitorial duties and hired a company to perform similar services in a number of properties that MLR had acquired along State Street.
After being discharged, Brown would regimentally complain about MLR's upkeep of his apartment building and MLR's neighboring buildings. In March 2017, Brown noticed that the trash was not picked up regularly and that it would overflow and spill onto the sidewalk, which invited pedestrians who passed to heap more trash upon the overflow. He contacted MLR about it, but MLR ignored the complaint. This prompted Brown to complain to governmental authorities who intervened.
Approximately two months later, Brown wrote MLR a letter outlining a series of grievances about the conditions of his building together with a request that his lease which expired at the end of June 2017, be renewed for another year. This request was denied. Instead, MLR served Brown with notice that it was terminating his tenancy. Brown refused to vacate and continued to offer his rent. MLR brought a holdover proceeding (RPAPL 711 ) in Albany City Court.
A trial was held (Albany City Ct, Heath, J., index No. LT 2803-17/AL). Brown claimed that MLR refused to renew his lease in retaliation for his complaints to City officials and to MLR. Brown argued that the non-renewal violated RPL 223-c. Section 223-c provides that a landlord shall not refuse to renew a lease or offer a new lease in retaliation for either a good faith complaint by the tenant to a governmental authority concerning a health or safety issue or any [*2]other good faith action relating to enforcing the warranty of habitability (RPL 223-b  [a]; RPL 223-b  [b]). In particular, since the non-renewal came within six months of the good faith complaints, Brown argued that therefore a statutory presumption of retaliation arose which obliged MLR to come forward with "a credible explanation of a non-retaliatory motive for [its] acts" that would "overcome and remove the presumption " (RPL 223-b ).
MLR came forward and explained that it became frustrated by Brown's incessant emails, numbering into the hundreds. In addition, according to MLR, two tenants at 285 State Street refused to renew their leases because of Brown's unsavory character. As a result, MLR was no longer comfortable with a landlord-tenant relationship with Brown. The trial court accepted these explanations as credible non-retaliatory reasons for refusing to renew Brown's lease and thus, the court found that Brown had no right of possession after expiration of his lease, granted possession of the apartment to MLR, and issued a warrant of eviction.
Brown appealed this ruling. On appeal, the court found "[i]t simply incredible that, without ever responding to the tenant's numerous emails in any fashion—even to request secession—that only after the tenant complained to government officials and within hours after receiving the tenant's certified letter summarizing a host of former complaints and requesting repairs, the landlord became 'uncomfortable with [its] relationship' with the tenant and decided not to renew his lease" (Albany County Ct, Carter, J., index No. CA 691-17). In addition, County Court found it "troubling" that City Court "rel[ied] upon the landlord's hearsay testimony regarding statements of concern allegedly made to [it] a year prior by two unnamed tenants concerning [Brown's unsavory] history." Such evidence, according to the appellate court, was unreliable.
Ultimately, County Court decided that no credible evidence existed that rebutted the statutory presumption that MLR's decision not to renew the lease was in retaliation for making a complaint by the tenant to a governmental authority concerning a health or safety issue. Therefore, the court ordered the warrant of eviction vacated and returned possession of the apartment back to Brown.[FN1]
After the decision, MLR and Brown attempted to negotiate a new lease but failed to reach an accord. Instead, Brown was kept on as a month to month tenant with the same terms and rent as the previous lease. The tenancy continued in this state until July 31, 2018 when MLR served Brown with a notice of termination of the month to month tenancy. The notice provided that MLR was terminating the tenancy and that Brown was required to vacate and surrender the possession of the premises by August 31, 2018. Brown did not vacate his apartment at the end of August; instead, he offered September's rent. MLR refused to accept this rent and countered by commencing a holdover proceeding. A trial was held in Albany City Court on September 28, 2018.
At trial both parties moved for judgment as a matter of law. First, Brown asked to have the Petition dismissed because MLR lacked a residential occupancy permit ("ROP") from the City of Albany. Multiple Dwelling Law § 302 (1) (b) provides that a landlord shall not recover rent for the period where the apartment lacked a certificate of occupancy. However, Multiple Dwelling Law § 302 applies to cities with a threshold population exceeding 325,000. The City [*3]of Albany is under that population threshold. Nevertheless, "[t]he legislative body of any city [under a population of 325,000] may adopt the provisions of [Multiple Dwelling Law § 302 (1) (b)] and make the same applicable to dwellings within the limits of such city" (Multiple Dwelling Law § 3).
The City of Albany has adopted such a law. Albany City Code Chapter 231-11 provides: "No owner [who lacks a ROP] shall collect rents during any period which would otherwise be due and owing for the rental of premises unless and until he or she shall [obtain a ROP]." So, because MLR cannot collect rent, MLR certainly would be unable to maintain a non-payment of rent proceeding under RPAPL 711 (2). However, this proceeding is a holdover proceeding under RPAPL 711 (1). "A holdover proceeding is not barred by the landlord's failure to obtain a certificate of occupancy for the premises" (Khelawan v. Corneil, 190 Misc 2d 621, 622 [Civ Ct, Queens County, 2002]). The court, therefore, denies Brown's motion to dismiss the case.
The landlord made its own motion for judgment as a matter of law. MLR argued that it had a statutory right not to renew the lease, even in the face of a new allegation of retaliatory eviction. The argument begins by acknowledging the general rule that "[a] landlord shall not refuse to offer to renew the lease or offer a new lease in retaliation for any [protected activity proscribed by RPAPL 223-b (1)]" (RPAL 223-c ). However, MLR notes that there is an exception contained in the last part of RPAPL 223-b (2) to wit: "a landlord shall not be required [after an initial finding of retaliation] to offer a new lease or a lease renewal for a term greater than one year and after such extension of a tenancy for one year shall not be required to further extend or continue such tenancy."
MLR makes a forceful statutory argument. It maintains that since it extended Brown's tenancy for a year after the 2017 retaliatory eviction (which is accurate), it is not required, therefore, to further extend Brown's lease. This argument has some allure—it is literally what the statute says. Brown disagrees however. He argues that this passage relates only to the retaliatory act that triggered the initial non-renewal of the lease, but a new retaliatory act, which Brown alleges in the case, is not covered by RPAPL 223-b (2). The court asked the parties to provide case law on the subject. Neither party nor the court located any precedent remotely relevant to the issue.
Without guiding precedent, the court must engage the canons of statutory construction. When a court interprets a statute, the paramount rule is that it should construe the law to animate the intention of the legislature. The starting point for discerning that intent is the text (Yatauro v. Mangano, 17 NY3d 420, 426 ). Thus, the words of the statute and what those words convey, in context, is what the statute means. Here, without a doubt, § 223-b (2)'s language lets a landlord terminate a tenancy after a one-year extension, even if the tenancy's termination is in retaliation for the tenant's prior protected activity which triggered the required one-year extension in the first place. In other words, after a year goes by, the landlord can act with impunity on the old grudge and rid itself of the tenant.
But that does not quite answer the question raised — whether § 223-b (2)'s no further extension language blankets the landlord with immunity to terminate the tenancy in retaliation for the tenant engaging in a protected activity during the one-year renewal period. It is true, as MLR points out, that the no further extension provision contains no disqualifying clause. That is, the statute does not read "a landlord shall not be required to further extend or continue such tenancy [unless the decision not to further extend the tenancy is made in retaliation for a [*4]protected activity under § 223-b (1) within the last six months of the renewal period]" (RPL 223-b  [language in italics does not appear in the statute]).
If RPL 223-b (2) is viewed in isolation from the remaining paragraphs of § 223-b, MLR's position is almost unassailable. However, a subdivision should not be interpreted in isolation from the other sections of the law. Rather, "[s]tatutory construction, is a holistic endeavor" (United Sav. Assn. of Tex. v Timbers of Inwood Forest Associates, Ltd., 484 US 365, 371 ). Thus, the court must construe the statute with the aid of the whole text canon (see generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 24 at p. 167 ). The canon implores that the "meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view" (Panama Refining Co. v Ryan, 293 US 388, 439 [1935, Cardozo, J., dissenting]).
Section 223-b has a natural flow from prohibition to consequences. Paragraph 1 (§ 223-b ) starts by prohibiting a landlord from terminating a tenancy "to punish the tenant for complaining to government authorities" (Kirkview Associates LP v. Amrock, 160 AD3d 1108, 1109 [3d Dept 2018], quoting Pena v. Lockenwitz, 53 Misc 3d 428, 431 [Cohoes City Ct 2016]). Paragraph 2 of the statute (§ 223-b ) deals with the consequences for a landlord who engages in a retaliatory act—the landlord must extend the lease. However, the lease need not be extended indefinitely for an act of retaliation. The retaliatory act is absolved after a year in the sense no further lease extension is required. But this absolution applies to past acts and says nothing about a landlord's subsequent violation of the statute. Thus, since the no further extension language of § 223-b (2) deals with the consequences of a previous retaliatory act by the landlord, it cannot be implied, as a matter of sound statutory construction, that § 223-b (2) supersedes § 223-b (1]) and grants immunity from all future retaliatory conduct by the landlord under § 223-b (1).
Therefore, the court finds that a new retaliatory act renders the no further extension language inoperative. Thus, if a landlord refuses to extend a tenancy beyond the one-year required by § 223-b (2) because a tenant made a new good faith complaint to a governmental authority concerning a health or safety issue or any other good faith action relating to enforcing the warranty of habitability during the course of the extended tenancy, then the refusal to further extend the tenancy is illegal. MLR's motion for judgment on the pleadings is denied.
The case now circles back to the trial evidence and whether Brown proved his affirmative defense of retaliatory eviction. Brown offered four complaints that triggered protection under RPL 223-b. Of these complaints, two dealt with the warranty of habitability issues (RPL 223-b  [b]) and two dealt with health and safety complaints to a governmental authority (RPL 223-b  [a]). The court will examine each in turn.
With respect to the warranty of habitability issues, to make a prima facia case on the affirmative defense of illegal retaliatory non-renewal of a lease under RPL 223-b (1) (b), the tenant must prove the following elements: (1) the tenant took actions to secure or to enforce his rights under RPL 235-b; (2) such actions were undertaken in good faith; (3) the landlord was aware of the tenant's actions; and (4) if the tenant's action took place within the six month period before being served with a notice to quit, then the landlord's refusal to renew the lease is presumed to have been in retaliation for the tenant's complaint or (5) if the tenant's action took place longer than six months before being served with a notice to quit, then the tenant must prove that the landlord's decision not to renew the lease was in retaliation for the tenant's action.
Brown's first complaint has to do with the common area of the apartment building being unkept.[*5]The chief complaint that he made to MLR was that another tenant, who had a dog, caused the common area to be littered with the animal's hair. Moreover, Brown said that the dog hair was not properly and regularly removed. He testified that his lease forbade him from having pets and the presence of the dog and its hair represented a health concern to him—although nothing in the lease promises that the apartment building would be pet free. Additionally, the court notes that Brown never testified that he suffered from allergies from being around the dog hair.
The dog hair complaint does not fall within the ambit of the warranty of habitability (RPL 223-b ). Pursuant to RPL 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Dog hair in the common area while undesirable does not subject Brown to illness nor inhibits his ability to enjoy living inside his apartment. The Court of Appeals has held that the warranty "protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide" (Solow v. Wellner, 86 NY2d 582, 588  [internal citations and quotations omitted; emphasis in the original]). Therefore, the court finds that Brown failed to prove the first element of his affirmative defense (an action taken to enforce a habitability issue) with respect to the presence of excessive dog hair in the common area.
The next issue that Brown raised involved the presence of mice in his apartment. A mouse infestation in an apartment, if not caused by the tenant's poor upkeep of the premises, constitutes a breach of the warranty of habitability (Roman v. Emigrant Sav. Bank-Brooklyn/Queens, 111 AD3d 692, 693 [2d Dept 2013]). On the other hand, a mouse scurrying here and there on an occasion or two is nothing out of the ordinary.
Brown's testimony described a serious matter and not an inconvenience. Brown testified that at some point in time he noticed that the pest control service that had maintained the apartment building stopped coming. He testified that he never became aware of a successor exterminator. As a result, the tenant claimed that mice invaded his apartment on a frequent and intolerable basis. Brown further stated he deployed mouse traps and each time he would catch a mouse, he registered a complaint with MLR and sent a picture of the deceased rodent. MLR denied the allegation that Brown ever provided it emails, photographs or any other kind of notification about mice in his apartment.
The conflict over notification is critical to resolving Brown's retaliatory defense. Obviously, MLR could not have retaliated against Brown for actions of which it was unaware. Thus, before reaching the issue of retaliation, Brown must prove that MLR received his complaints about a rodent infestation. This is a problem for Brown. All the court has is Brown's assertion that he complained to MLR and MLR's assertion that Brown never complained. Both sides' testimony seemed equally credible—this places the matter at an evidentiary equipoise.[FN2]
However, the lack of certain evidence tips the scales against Brown. There were three notable [*6]omissions in Brown's testimony. First, Brown neither produced the emails nor the photographs of the captured mice that he says he sent to MLR.[FN3] Second, Brown never specified the dates that he had alerted MLR to the presence of mice. Third, and perhaps most significantly, Brown, who was quite versed in accessing the channels of government, never lodged a complaint with code enforcement concerning rodents. Thus, the court finds that based on all the credible evidence (or lack thereof) Brown failed to establish the third element of his defense that MLR was aware of a complaint about a mouse infestation.
Besides the warranty of habitability retaliation claim, Brown raised the affirmative defense of illegal retaliation under RPL 223-b (1) (a). This provision forbids a landlord from serving a notice to quit because a tenant made a good faith complaint to governmental authorities concerning the landlord's alleged violation of a health or safety law. The elements to establish a prima facia case for this defense are identical to RPL 223-b (1) (b) except for the first element. The first element of a defense § 223-b (1) (a) requires that tenant made a complaint to a governmental authority of the landlord's alleged violation of any health or safety law.
Thus, to make out the affirmative defense under RPL 223-b (1) (a), the tenant must show: (1) the tenant made a complaint to a governmental authority of the landlord's alleged violation of any health or safety rule, regulation, code, law or ordinance; (2) such complaint was undertaken in good faith; (3) the landlord was aware of the tenant's complaint; and (4) if the tenant's action took place within the six month period before being served with a notice to quit, then the landlord's refusal to renew the lease is presumed to have been in retaliation for the tenant's complaint or (5) if the tenant's complaint took place longer than six months before being served with a notice to quit, then the tenant must prove that the landlord's decision not to renew the lease was in retaliation for the tenant's action.
With respect to Brown's first complaint under RPL 223-b (1) (a), Brown informed governmental authorities that he had a grave concern about water build-up on the roof of his apartment building. Brown testified that 285 State Street is a three-story building that was constructed in 1859. During times of heavy rains, the drain on the roof lacks sufficient capacity to clear the water unless the miscellaneous debris that would naturally accumulate and/or was swept into the drain during a storm was removed. In early August 2018, a severe summer thunder storm that came with flood advisories hit Albany. Brown went to the rooftop and observed water accumulating in a hazardous fashion and immediately reported the danger to Albany City officials who in turn commanded MLR to clear the drain.
The August 2018 report to city officials is the type of activity which is protected under RPL 223-b (1) (a). However, the issue here is timing. MLR served the notice to quit in July 2018. Thus, the report about the roof came after the notice to quit. The report could not have been a motive for serving the notice to quit and therefore, the roof top report provides no defense to extend the present holdover proceeding.
The last issue that Brown raised with the government concerns garbage removal, the same issue that caused the initial finding of retaliation in 2017. This iteration of the trash complaint mirrors the previous one but to a lesser degree. To comprehend the complaint, mundane details of trashcan storage and trash removal must be set forth. MLR has provided three trash receptacles— two of the receptacles are for trash disposal and the third is for recyclable materials. The containers are stored in a small alcove beneath the front stairway with the recyclable bin and one trash container placed in front of the remaining trashcan. According to Brown, how the three containers were arranged created an issue. In particular, Brown testified that when the front bins were filled, they became too heavy to move and thus, access to the additional trash container in the back was blocked. As a result, the rate at which garbage accumulated exceeded the frequency of its removal.
The crux of Brown's grievance was how MLR chose to ameliorate the trash build-up. MLR had engaged a private hauler to remove the trash and instead of having its hauler remove the trash more frequently, MLR had its maintenance person stop by 285 State Street between the hauler's scheduled pick-ups to remove part of the trash from the top of the container. This was unacceptable to Brown, so he filed a complaint with the City of Albany Department of General Services ("DGS").
On May 18, 2018, Brown emailed Frank Zeoli, Director of DGS, and told Zeoli that while the trash situation does not "look bad or out of compliance at the moment," appearances were deceptive. Brown told Director Zeoli that MLR merely "skimmed" a small portion of the refuge from the top of the trash container between regular pick-ups. This, according to Brown, resulted in the trash at the bottom of the barrel decomposing and omitting "an offensive odor."
On May 24, 2018, DGS posted a Notice of Violation on the door of 285 State Street. The notice indicated that the property was found in violation of Albany City Code Chapter 313 ("Chapter 313"). Although Chapter 313 contains a brigade of sections and subsections, no particular provision of the Chapter was cited. Rather, the Notice of Violation contained a handwritten remark that read: "Please remove the trash cans from public view. Thank you."
On July 17, 2018, Brown emailed Director Zeoli again. Among other things, the email had attached a photograph that depicted a trash container at 285 State Street with the lid pried open by debris that had mushroomed over the top of the container. That same day, DGS again posted the 285 State Street door with a notice that MLR was in violation of Chapter 313. Similar to the May notice, the July notice provided no specific provision violated by MLR but only bore a handwritten admonishment to store the trashcans neatly.
The evidence raises two issues as to the sufficiency of Brown's defense. First, were Brown's complaints made in good faith and second, assuming good faith, did MLR offer a credible non-retaliatory explanation for serving the notice to quit the tenancy upon Brown. A tenant is cloaked with the protection of RPL 223-b only if he makes "[a] good faith" complaint to a governmental authority (RPL 223-b  [a]). "Good faith is an elusive idea, taking on different meanings and emphases as [courts] move from one context to another" (In re: Hosking, 2016 WL 128209 [SDNY 2016], citing Black's Law Dictionary [10th ed. 2014]). It appears that no court has wrestled with the meaning of good faith in the context of RPL 223-b (1) (a). At an irreducible minimum, however, "good faith connotes an actual state of mind—a state of mind motivated by proper motive" (Polotti v. Flemming, 277 F2d 864, 868 [2d Cir 1960], citing Doyle v. Gordon, 158 NYS2d 248, 260 [Sup Ct, New York County, 1954]).
In the context presented here, good faith has both an objective and subjective component. [*7]To establish the objective component, the tenant must prove that at the time he complained to governmental authorities, there was reasonable cause to believe that the landlord violated a health or safety law, regulation, code or ordinance. To establish the subjective component, the tenant must prove that his motivation for the complaint was based upon a sincere health and safety concern for himself, other tenants or the public.
The court has trouble finding reasonable cause to believe that the MLR had violated a health or safety law, regulation, code or ordinance. The skimming of the garbage seems like small potatoes. DGS only cited MLR for having trashcans on the public walk. Significantly, MLR was never charged with spilling trash into the walkway or any other of the numerous City regulations dealing with trash.
Moreover, Brown's chief complaint that the skimming caused a repellant odor lacks supporting logic and evidence. MLR's private hauler removes the trash at regular intervals. The amount that the trash decomposes is a function of the time between trash removal dates. Consequently, the decomposition that the trash undergoes between scheduled pick-ups has nothing to do with whether MLR's employees skim trash off the top. If anything, the skimming allows the trashcan lid to be shut which should reduce odors. Brown never offered evidence to convince the court (and for that matter DGS officials) that the intervals between trash pick-up was so long as to force residents and passersby to suffer adverse health or safety issues from the odors.
Even assuming that the trash smelled from time to time, Brown must understand that no landlord, even the most capable and conscientious, can maintain a residential dwelling in a constant state of perfection. Problems arise, things break, contractors fail to perform. It is not the occurrence of defects, even serious ones, that raises issues. Rather, it is the neglect of a problem that transforms a momentary incident into a health or safety issue. The stink of garbage may be an annoyance, a nuisance and inconvenience, but the court is not sure it endangers any person's health or safety.
Even if the court could get around the objective component of good faith, the subjective component is still problematic. A good faith complaint requires a good motive. RPL 223-b (1) (a) is not a tool for gamesmanship. The court finds that Brown's primary goal in making complaints to DGS was to gain a tactical legal advantage.
The court's impression of Brown's testimony was that he was looking for something, anything, so he could file a complaint with the City and thereby extend his lease an additional year. Brown's complaints to the City seemed scripted rather than authentic. Significantly, and fatally to Brown's case, he never produced a single email, letter or text message showing that he complained to MLR about the garbage collection prior to emailing a complaint to DGS. Thus, Brown made no effort to have MLR resolve the trash issue, which would have been a minimal sign of good faith.
The court finds, after carefully reflecting upon the credible evidence, that Brown's complaint of May 18, 2018 and his complaint of July 17, 2018 to DGS about trash collection at 285 State Street were not good faith complaints within the meaning of RPL 223-b (1) (a).[FN4] [*8]Consequently, Brown has unlawfully held over after the expiration of his lease. Therefore, the court grants the possession of the second-floor apartment of 285 State Street to MLR together with the costs of this proceeding.
RPAPL 749 requires the court, after rendering a final judgment, to issue a warrant of eviction. This Court has the discretionary power in a holdover proceeding to grant a reasonable stay (Jones v. Allen, 185 Misc 2d 443, 448 [App Term, 2d Dept, 2000]); see CPLR 2201 [providing that a stay should be granted "upon such terms as may be just"]). The court will hold a hearing to determine a just date for the warrant of eviction to issue. The clerk of the court will advise the parties of the hearing date.
The foregoing constitutes the Decision and Order of the Court.
Dated:October 24, 2018
Albany, New York
City Court Judge Footnotes
Footnote 1: Brown had obtained a stay of the warrant of eviction pending the determination of the appeal. Thus, the phrase "returned possession of the apartment back to Brown" in this context means Brown had lawful possession of the premise going forward.
Footnote 2:If the weight of the proof is equal, then Brown would fail in his defense because RPL 223-b places the initial burden of proof upon Brown.
Footnote 3: The only relevant photo was attached as an exhibit to Brown's Answer (but not offered into evidence). That exhibit depicted a mouse on a glue trap. The photograph bore a date of August 9, 2018, more than a week after MLR served Brown with the notice to quit. Thus, even if the exhibit had been offered and admitted into evidence, the timing makes it irrelevant. But it does seem strange that if Brown indeed had pictures of mice that pre-dated the notice to quit, he would have attached those pictures as exhibits to his Answer and/or offered them into evidence at trial. Thus, the court draws an inference against Brown's assertion of a rodent problem.
Footnote 4: Since the court finds that there was no good faith complaint, it need not reach the question of whether MLR offered a credible non-retaliatory explanation for serving the notice to quit the tenancy upon Brown. Though the court has considered the testimony of the witnesses and their demeanor on this issue, it seems unwise to opine on matters that are immaterial to the decision.