Fleetwood Holdings I, LLC v Smith
Annotate this CaseDecided on June 7, 2018
City Court of Mount Vernon
Fleetwood Holdings I, LLC, Landlord-Petitioner,
against
Antoine Smith, Respondents-Tenants.
1110-18
Nat Sripanya, Esq.
Attorneys for Petitioner
9 West Prospect Avenue, Suite 406
Mount Vernon, NY 10550
Antoine Smith, pro se
Adam Seiden, J.
Petitioner commenced this holdover proceeding in April 2018 seeking to recover possession of the residential premises on the ground that the tenancy has been terminated based upon the respondents breach of a substantial obligation of his tenancy in that he has chronically and consistently failed to pay his rent on time thereby requiring petitioner to commence numerous nonpayment summary proceedings in a short period of time.
The respondent occupies the premises located at 80 West Grand Street, Apt. C1, Mount Vernon, New York, subject to the Emergency Tenant Protection Act (ETPA) and pursuant to a written lease for a one year term which commenced in September 2009 and has since been renewed numerous times. The petitioner served respondent with a Notice of Termination, dated March 28, 2018, advising respondent that his tenancy was being terminated on April 16, 2018 due to his chronic failure to pay the rent in full in a due and timely fashion as provided for in the lease agreement. The Notice of Termination listed the following four (4) nonpayment summary proceedings brought by petitioner against the respondent in the City Court of Mount Vernon: Index No. 1382-16; Index No. 1251-17; Index No. 2668-17; and Index No. 0216-18. The petitioner then commenced this holdover proceeding on April 23, 2018.
A non-jury trial was held in this matter on May 21, 2018. Petitioner maintains that it has been forced to commence four (4) nonpayment actions against the respondent within a twenty [*2]month period to collect rent due. The Court has reviewed the court file for each proceeding. On Index No.1382-16, commenced on May 17, 2016, petitioner sought the balance of April 2016 rent - $498.56, and May 2016 rent - $1.071.64. However, petitioner withdrew the matter by the time respondent appeared on the return date. On Index #1251-17, commenced on May 16, 2017, petitioner sought the balance of March 2017 rent - $941.40, April 2017 rent - $1,071.64, May 2017 rent - $1,071.64 and a $25.00 late charge. A judgment and warrant of possession were entered against the respondent, however it appears that respondent paid his arrears before the warrant was executed. On Index #2668-17, commenced on September 27, 2017, petitioner sought the balance of August 2017 rent - $324.60 and September 2017 rent - $1,077.00. A judgment and warrant of possession were entered against the respondent, however it appears that respondent paid his arrears before the warrant was executed. On Index# 0216-18, commenced on January 17, 2018, petitioner sought the balance of December 2017 rent - $709.60, January 2018 rent - $1,077.00 and $25.00 late charges per month for December and January. Respondent tendered a $1,600.00 money order in court on the return date and a final judgment of possession in the amount of $236.00 with two week stay was granted to petitioner. A judgment and warrant was not entered in that matter. Petitioner commenced the instant action, as previously stated, on April 23, 2018.
A history of repeated nonpayment summary proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation of the tenancy (See Sharp v. Norwood, 89 NY2d 1068 (1997); Matter of Carol Mgmt. Corp. Mendova, 197 AD2d 687 (2nd Dept. 1993); Adam's Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 (App. Term. 1st Dept. 2000); Tenth Street Holdings, LLC. v. McKowen, 50 Misc 3d 141(A) (App. Term 1st Dept. 2016)). "However, the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent" (Green v. Stone, 160 AD2d 367 (1st Dept. 1990) (citing 25th Realty Assocs. v Griggs, 150 AD2d 155)). Rather, in a chronic nonpayment holdover proceeding "there is no 'magic number' of prior proceedings required, as each case is sui generis (" Sharp v. Norwood, 223 AD2d 6, 9 (1st Dept. 1996) aff'd 89 NY2d 1068 (1997). The law further provides that only where there are bonafide claims that the subject premises is in need of repairs, precipitating the withholding of rent, or a viable dispute regarding the amount of rent owed, should a holdover petition based upon chronic nonpayment of rent not be sustained (See 31-67 Astoria Corp. V Cabezas, 2017 NY Misc LEXIS 1160; 2017 NY Slip Op 50432 (U) (citations omitted)).
In the case at bar, petitioner commenced four (4) nonpayment summary proceedings within a twenty (20) month period. Although it appears that the respondent did not raise warranty of habitability claims, the Court finds that there is insufficient proof to support a finding that the respondent violated a substantial obligation of his lease. The 2016 action was withdrawn by petitioner on or before the return date and shall not be charged against the respondent (Chama Holding Corp., 37 Misc 3d 70 (1st Dept 2012). Therefore only the last three proceedings can be relied upon in examining the sufficiency of the petition. The two 2017 resulted in judgment and warrant being issued. The 2018 proceeding was commenced seeking the balance of December 2017 rent and the rent due for the month in which the action was commenced. No judgment and warrant issued in that proceeding.
Accordingly, the petition is dismissed as the court finds that the petitioner has failed to allege enough frequency and number of prior nonpayment proceedings to demonstrate that respondent has substantially violated a material obligation of his 8 and half year tenancy.
This constitutes the Decision and Order of this Court.
Dated: June 7, 2018
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
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