Furnished Dwellings LLC v Households Headed by Women Inc.

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[*1] Furnished Dwellings LLC v Households Headed by Women Inc. 2018 NY Slip Op 28422 Decided on December 20, 2018 Civil Court Of The City Of New York, New York County Marton, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 20, 2018
Civil Court of the City of New York, New York County

Furnished Dwellings LLC, Petitioner,


Households Headed by Women Inc. et al., Respondents.


Petitioner's counsel

Green & Cohen

319 East 91st Street - Prof. Suite

New York, NY 10128

(212) 831-4400

Respondents' counsel

Goldberg, Scudieri & Lindenberg, P.C.

6 East 45th Street - 14th Floor

New York, NY 10017

(212) 921-1600
Gary F. Marton, J.

After considering the testimony and the other evidence at the trial of this nonpayment proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants petitioner a judgment (1) against respondent Households Headed By Women, Inc. (hereinafter "HHBW") for possession and for $51,150.00 as all rent due for the period ending September 30, 2018, (2) against respondent Winfield for possession only, and (3) dismissing respondents' counterclaims. One or more warrants may issue forthwith without stay of execution. Upon service of a copy of the judgment against HHBW with notice of entry, and upon papers setting forth the particulars thereof, petitioner may move for an award of attorney's fees and such other relief as may seem just.

In the petition dated February 20, 2018 petitioner alleges it is the "PRIME TENANT, the Owner\landlord" of the premises, that HHBW is the tenant, that Winfield is a subtenant, that the monthly rent for the premises is $4,650.00, and that the rent has not been paid since November, 2017.

By prior counsel respondents interposed an answer sworn to on March 20, 2018 in which they asserted a general denial, an affirmative defense that personal jurisdiction was lacking, an [*2]affirmative defense of breach of the warranty of habitability, and a counterclaim for attorney's fees pursuant to RPL § 234. Thereafter respondents moved for, among other things, leave to interpose an amended answer that added a counterclaim for rent overcharge. By a decision and order dated July 5, 2018 the court (Marin, J.), among other things, granted the requested leave and deemed the proposed amended answer duly interposed.

A claim for attorney's fees pursuant to RPL § 234 need not be sought as a counterclaim; the claim may be asserted independently. In pertinent part RPL § 234 provides that such fees "may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant." As a result, respondents' claim for attorney's fees is "unrelated" to the defense of the instant proceeding, i.e., need not be asserted here to avoid "the spectre of collateral estoppel... [and] the risk of later preclusion [citation omitted]." Textile Technology Inc. v Davis, 81 NY2d 56, 59 (1993). Accordingly, the court holds that respondents' interposition of the counterclaim waived their defense that personal jurisdiction had not been secured.

The court also holds that a petition, notice of petition, and predicate rent demand were duly served, that the premises is located in a multiple dwelling duly registered as such with the City of New York's Department of Housing Preservation and Development ("HPD"), that respondents have not paid any rent since November, 2017, and that petitioner otherwise proved a prima facie case.

More specifically, the court finds that pursuant to a lease dated October 11, 2017, which document characterizes itself as a renewal lease, nonparty 12 East 86th Street LLC rented the premises to petitioner for a period of one year beginning on October 1, 2017. The court also finds that the parties entered into a lease dated September 15, 2017 that characterizes itself as a "Sublease Extension Rider." This agreement was made by petitioner as "Prime Tenant," HHBW as "Subtenant," and Winfield as "Occupant." This agreement extended to September 30, 2018 the term of a pre-existing but expired lease for the premises and fixed the monthly rent at $4,650.00. The court finds that no rent was paid during the 11 months of November 1, 2017 through September 30, 2018, that the accrued arrears for that period are $51,150.00, and the court amends the petition to include all rent due through that date and grants petitioner a judgment for that amount.

The court finds that there was no lease or other agreement to continue the landlord/tenant relationship for the period of time after September 30, 2018. The court has no basis to deem the lease renewed as of October 1, 2018, see, e.g., Samson Mgmt. LLC v Hubert, 92 AD3d 932 (2nd Dep't, 2012). As a result, while use and occupancy may be due for the post-lease period, the court cannot find that any rent is due. "It is elementary that a nonpayment proceeding must be predicated upon an agreement by the tenant to pay the rents demanded (RPAPL 711[2]; see Matter of Jaroslaw v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; Krantz & Phillips, LLP v Sedaghati, 2003 NY Slip Op 50032 [U] [App Term, 1st Dep't, 2003])." Licht v Moses, 11 Misc 3d 76, 78 (App Term, 2nd & 11th Jud Dists, 2006).

Respondents defended on the ground that petitioner had breached the warranty of habitability. To establish this defense respondent had to make four showings: (1) that there were conditions at the premises that rendered them less than habitable, (2) that respondent had notified petitioner of the conditions or that petitioner otherwise knew of them, (3) that respondent [*3]provided petitioner with a reasonable opportunity to cure the conditions but that petitioner did not cure them, and (4) that the conditions had a quantifiably negative impact on respondent's use of the premises. Anoula Realty Corp. v Weiss, 2007 Slip Op 51496(U), (App Term, 2nd & 11th Jud Dists, 2007), Liberti v Fitzpatrick, 2003 NY Slip Op 51643(U) (App Term, 9th & 10th Jud Dists, (2003).

Only HHBW, but not Winfield, may assert this defense. Winfield was not a tenant or subtenant of the premises, but only, as designated in the parties' agreement dated September 15, 2017, an occupant of the premises. Winfield had no obligation to pay rent and accordingly she may not seek a reduction in that obligation.

The court holds that HHBW did not establish the elements of this defense. HHBW did not offer anything either probative of complaints to petitioner about conditions at the premises or probative of having made the premises available on reasonable notice to petitioner so that any alleged conditions might have been addressed. Respondents did offer an email dated September 18, 2018 [FN1] — i.e., well after the instant proceeding had been commenced — to petitioner in which Winfield complained that the conditions at the premises were, both at the time she moved in more than a year before and continuing to the present, less than they should have been. However, the email, in which Winfield also seeks to be released from the lease, is plainly an attempt to negotiate a settlement and, even if admissible, has no probative value for that reason. Also the email does not include a request to petitioner to cure the conditions complained of, and the email does not offer access to the premises to cure the conditions complained of.

Respondents counterclaimed on the ground of rent overcharge. However, they offered nothing probative thereof. Accordingly, the court grants petitioner a judgment dismissing this counterclaim.

The court will mail to the parties their exhibits and copies of this decision.

Dated: December 20, 2018

New York, NY


Gary F. Marton Footnotes

Footnote 1:The email may have been sent on May 15, 2017, and then re-sent and printed on September 18, 2018; if so, the May 15, 2017 sending lies outside of the period of time encompassed by this proceeding, and the re-sending and printing accounts for the date of September 18, 2018.