Abdelqader v Arola
Annotate this CaseDecided on June 9, 2021
Civil Court of the City of New York, Queens County
M. Abdelqader, Plaintiff,
against
M.M.D. Arola, Defendant.
CV-029137-18/QU
Petitioner's Counsel:
The Law Office of Noor A. Saab, PC
148-02 Hillside Avenue, 2nd Floor, Suite 1
Jamaica, New York 11435.
Respondent's Counsel:
Lawrence S. Lefkowitz LLC
72 Guy Lombardo Ave.
Freeport, NY 11520
Rachel E. Freier, J.
On January 20, 2021, trial commenced in the instant action and was continued on January 25, 2021; February 16, 2021; and concluded on June 2, 2021. Due to the COVID-19 public health crisis and pursuant to the Administrative Order of the Honorable Anthony Cannataro, Administrative Judge of the Civil Courts of the City of New York, the parties consented to appear virtually for the trial via Microsoft Teams. Following the trial, the Court reserved its decision and, for the reasons set forth below, the Court now finds in favor of the DEFENDANT.
PROCEDURAL HISTORY
The plaintiff, M. Abdelqader ("Plaintiff"), commenced the instant action by filing a Summons and Complaint on or about September 18, 2018, for rental arrears in the amount of $24,000. The defendant, M.M.D. Arola ("Defendant"), joined issue by filing an Answer. The Parties appeared for a virtual trial via Microsoft Teams on January 20, 2021; January 25, 2021; February 16, 2021; and June 2, 2021.
TRIAL SUMMARY
I. Plaintiff's Case
At trial, Plaintiff testified that on June 30, 2013, the Parties — as well as additional [*2]tenants, S.H. and T.E. — entered into a Blumberg apartment lease, T 327, for the first floor apartment located at —-, Kew Gardens, New York 11415 ("Premises") to run from July 10, 2013, through July 30, 2018 ("Lease", Plaintiff's exhibit 1)). Plaintiff contended that Defendant failed to pay rent increases and did not pay rent for the final few months when Defendant remained in the Premises. Defendant objected to the lack of specificity regarding the alleged nonpayments.
Plaintiff entered into evidence the Five (5) Day Notice allegedly sent to Defendant (Plaintiff's exhibit 2), which he stated represented an accurate account of the money due and owed at the time. However, when asked whether Defendant made any payments after the Five Day Notice was sent to her, Plaintiff suggested that Defendant had "maybe" paid $320 at some time in April 2017, but that it was, in any event, a very small amount of money compared to the amount owed.
When asked when Defendant vacated the property, Plaintiff testified he did not know an exact date. Rather, at one point in May, he noticed many garbage bags and pieces of furniture on the side of the property, which were not cleared after several days. Plaintiff testified that, though he saw the door to the Premises was unlocked, he did not enter, nor did he ever change the locks. According to Plaintiff, he never received a clear response from Defendant as to whether she had officially left the property and finally, in June 2017, Plaintiff began to clear the Premises. In support of this alleged date when he took possession of the Premises, Plaintiff submitted a receipt from the company he allegedly hired to clear the Premises (Plaintiff's exhibit 7). He re-let the premises sometime in July 2017 but could not recall the exact date.
Plaintiff also contended that he sent an Advisement of Annual Rent Increase (Plaintiff's exhibit 5) to Defendant on July 5, 2014, to advise Defendant that he was increasing the rent in the second year of the Lease. However, Plaintiff submitted no evidence that the Advisement was sent to Defendant. During the second cross-examination, Defendant noted that, per the Lease (Plaintiff's exhibit 1, ¶ 4), all notices to Defendant were to be sent via certified mail. When asked whether Plaintiff had sent, by certified mail, annual notices of annual increases in rent, Plaintiff stated only that the Five (5) Days' Notice was sent by certified mail and that it included all the annual increases he had implemented.
Additionally, on the first cross-examination, Defendant addressed the handwritten portions and cross-outs in the Lease copy provided by Plaintiff. When Defendant asked whether those changes were initialed when made, Plaintiff said he did not understand the question. Defendant also noted that the handwritten portion regarding rent increases stated only that the Lease was "subject to" annual rent increases (Plaintiff's exhibit 1, ¶ 3), not that it would automatically increase. Plaintiff answered that he told Defendant many times that he was increasing the rent.
On re-direct, Plaintiff stressed that he was never given any notice of any early termination of the Lease.
Following the second cross-examination, Plaintiff rested. Defendant moved to dismiss the case, as Plaintiff had failed to demonstrate that he owned the Premises. Plaintiff argued that, in the course of questioning, Plaintiff clearly acknowledged that he was the owner of the Premises and that the Lease demonstrated the same. The Court denied the motion to dismiss.
II. Defendant's Case
A. Defendant's Testimony
Defendant testified that the Premises was rented as a "crash pad" for American Airlines [*3]flight crew members. The Premises was used by a rotating set of flight crew members, including Defendant, who each paid a share of the rent ("Residents").
Defendant acknowledged that the signature at the bottom of the Lease provided by Plaintiff (Plaintiff's exhibit 1) was hers, but stated that none of the handwritten portions or cross-outs were on the Lease when she signed. According to Defendant, the tenants who signed the Lease (herself, S.H., and T.E.) did so with the understanding that they were signing a five-year lease without any rent escalations during that time. If there would have been rent escalations, Defendant said, they would not have signed a lease for five years, as it would not have been beneficial.
Defendant stated that she kept her copy of the Lease in a file in the kitchen in the Premises so that everyone who stayed in the apartment could access it. According to Defendant, when Plaintiff started to send text messages saying that he would be raising the rent by five percent (5%), she asked others staying in the Premises to look for the copy of the Lease, but was told it was missing. When she next returned to the apartment, she could not find the copy of the Lease anywhere on the Premises. According to Defendant, at an earlier date, the Residents awoke one morning to find a letter had been placed on the kitchen table from Plaintiff, stating that bills were not paid.
Next, Defendant submitted into evidence several text messages from Plaintiff sent to her in February 2017, wherein Plaintiff said that he was invoking the right in the Lease to raise the rent annually, despite having never used it before (Defendant's exhibit A).
Defendant testified that, once they were told the rent would be raised, the Residents instead chose to vacate. Defendant informed Plaintiff in March, by text message and again verbally, that they would leave the Premises by May 1.
When shown Plaintiff's exhibits, Defendant denied having ever received the Five Days' Notice (Plaintiff's exhibit 2), the Thirty (30) Day's Notice (Plaintiff's exhibit 4), the Advisement of Annual Rent Increase dated July 5, 2014 (Plaintiff's exhibit 5), and the Balance Due Notice (Plaintiff's exhibit 6).
Defendant also submitted into evidence bank records demonstrating rent payments through March 2017. According to Defendant, Plaintiff was holding the final month's rent as part of the original deposit, and therefore no rent was due for that month. Defendant alleged, therefore, that all rent had been fully paid. Additionally, Defendant submitted into evidence a U-Haul order receipt for April 26, 2017, pickup. Defendant contended that the truck was rented on that date in order to move all heavy belongings from the Premises to the newly leased apartment down the block. On April 29 or 30, 2017, Defendant alleged that she, along with three others, went back to the Premises and discovered that the door was jammed and they could no longer enter the Premises. At that point, Defendant says that she left the keys for Plaintiff in his mailbox in an envelope marked "returning keys." Defendant contended that Plaintiff saw the residents of the Premises moving out their belongings with the U-Haul truck on April 26, 2017.
B. M.K.'s testimony
M.K., one of the Residents, testified that he stayed at the Premises beginning in October 2016, through when the everyone moved out. He said the latter date was in either April or May 2017; however, later in his testimony, he said that to his recollection, everyone vacated the Premises in April. M.K. stated that he never received any notices of a rental increase.
He did not recall the exact date in April 2017, but M.K. also testified that one evening [*4]after dark, Plaintiff pounded on the door and then opened the door, stating he was there to show the apartment to other people who were there with him. Though M.K. told him it was too late and that people were sleeping, Plaintiff entered the apartment anyway accompanied by two to three other people to show the apartment. M.K. called the police to report that Plaintiff had entered the apartment without permission and the police informed Plaintiff that he needed to give ample notice before arriving at the Premises to show it to prospective lessees.
M.K. testified that he began to pack and move his belongings from the Premises as soon as he returned from a trip on April 27, 2017. He drove the rented U-Haul with furniture and other heavy belongings from the Premises to the Residents' new apartment. On April 28 or 29, 2017, M.K. stated, he was among those who found the door of the Premises blocked so that no remaining belongings could be collected.
On cross-examination, Plaintiff questioned M.K. about his earlier statement that the residents left the Premises around "April or May." M.K. clarified that he was certain they were moving toward the end of the month of April, but he was unsure whether "the last thing [they] did" was on May 1 or on one of the last days of April.
C. M.S.'s Testimony
M.S. testified that she was another of the Residents of the Premises, from October 2014 until the Residents moved from the Premises. She stated that she never received a letter from Plaintiff regarding a rental increase, and that the procedure among the Residents was to give their portions of the rent to Defendant, who would pay Plaintiff.
M.S. testified that she had heard from others of instances where Plaintiff had taken mail or packages from the Premises.
Although she was away when the rest of the Residents moved out with the U-Haul truck, M.S. said that she removed her things at the beginning of the spring; although she could not remember the date, when Plaintiff's attorney asked if it was around April 2017, she confirmed. During cross-examination, she stated that it may have been May, but later clarified that it was May when she went to the new apartment down the street.
D. M.H.'s testimony
S.H., one of the other signatories to the Lease passed away in November 2019. Defendant called as witness his wife, M.H..
M.H. testified that after S.H. signed the Lease in 2013, he showed her his copy of it, as he was elated to have signed a five-year lease with no rental increases. According to M.H., the copy of the Lease she saw had no write-ins or cross-outs. She also stated that S.H. was the one to pay the deposit to Plaintiff and that no money was ever returned to S.H., or to her, following the vacatur of the apartment.
E L.N.'s testimony
As a final witness, Defendant called L.N., a Resident at the Premises from September 2014 through the end of April 2017. L.N. testified that the rest of the Residents moved out of the Premises at that same time to move down the street. L.N. also stated that she was never given nor saw a letter regarding a rental increase and that, if Defendant had received notice of a rental increase, she would have discussed it with the Residents as their portions would have increased.However, according to L.N., no such conversation ever took place.
On cross-examination, L.N. confirmed that she went to collect her belongings within the month of April and that no furniture was left in her bedroom at the time she collected her things. She stated that Defendant had told all the Residents that they needed to be out of the Premises by the end of April and that, after moving her things, she gave her key to Defendant.
Following L.N.'s testimony, Defendant rested.
DISCUSSION
In order to establish a prima facie case of breach of contract, a plaintiff must demonstrate: "the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages" (JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]).
I. Handwritten portions of the Lease
To the existence of a contract Plaintiff submitted a copy of the Lease, signed by himself, Defendant, S.H., and T.E.. However, "[t]o form a binding contract there must be a 'meeting of the minds,' such that there is 'a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms'" (Stonehill Capital Mgt. LLC v. Bank of the W., 28 NY3d 439, 448 [2016] [citations omitted]).
While both parties signed at the bottom of the Lease, the handwritten portions of the Lease and crossed-out portions ("Handwriting") are neither signed nor initialed by either party. This includes the phrase on which Plaintiff heavily relies, "lease is subject to 5% annual increase" (Plaintiff's exhibit 1, handwritten portion at the end of ¶ 3). Both Defendant and M.H. testified that there was no Handwriting on the initial version of the Lease that Defendant and S.H. signed. Additionally, both Defendant and M.H. testified that a material term of the Lease to both Defendant and S.H. was that the rent would not be raised during the five-year period of the Lease. As Defendant explained during her testimony, there would have been no reason for her to enter into a five-year lease if it wasn't beneficial, i.e., that the rent would remain the same.
Courts have held that a handwritten amendment to a lease or contract constitutes a counteroffer, which remains unaccepted if not initialed, signed, or otherwise clearly assented to by the other party (see Bahamonde v Grabel, 34 Misc 3d 58, 61 [App Term, 9th and 10th Jud. Dists. 2011]). Without a clear "manifestation of mutual assent" that the Defendant agreed to an annual increase in rent — such as by initialing or signing the Handwriting so stating — and with the materiality of such a clause testified to by Defendant and by M.H. on behalf of her husband, there was no valid contract between the parties which included the clause pertaining to an annual rental increase.
II. Recording of rent due and owing
Furthermore, even if the contract, including the Handwriting, is fully valid between the parties, Plaintiff presented no rental ledger or any other evidence of recording rent due and rent paid. While Plaintiff testified that the amounts listed in his Five Days' Notice (Plaintiff's exhibit 2) were accurate accounts of what was due and owing by Defendant, Plaintiff provided no evidence of the basis for his calculations or proof that those amounts had not been paid. As evidenced by Plaintiff's uncertainty when testifying regarding the amount Defendant may have paid following the Five Days' Notice, it is unclear that the Plaintiff tracked with any certainty what amounts were or were not paid by Defendant. Similarly, Plaintiff did not have any record of the day on which the new tenants, after the Residents, moved into the Premises and began paying rent.
Therefore, Plaintiff has failed to prove that Defendant failed to pay any rental increases, if, indeed, any increase were properly imposed, or that Defendant failed to pay any month's sum in total. Accordingly, Plaintiff has failed to prove Defendant's breach of the contract or his resulting damages.
III. Notices by certified mail
Paragraph 4 of the Lease requires, "Any bill, statement, or notice must be in writing . A notice must be sent by certified mail. Each party must accept and claim the notice given by the other."
While Plaintiff alleged that he told Defendant many times that he was raising the rent, he provided only one instance of written advisement of such rental increase, dated July 5, 2014 (Plaintiff's exhibit 5). Plaintiff presented no evidence that this advisement was sent to Defendant via certified mail; instead, he testified that he sent the notice by mail and placed a second copy in an envelope where all mail was left for Defendant. When asked by Defendant whether he had sent any notices by certified mail, Plaintiff could point only to the service of the Five Days' Notice (Plaintiff's exhibit 2).
Therefore, Plaintiff has not demonstrated that any notices of rental increase were properly made pursuant to the terms of the Lease. Therefore, any increase made pursuant to such notice would be invalid under the Lease.
IV. Advisements of Rental Increase
Additionally, questions were raised regarding the validity of the Advisement of Annual Rental Increase (Plaintiff's exhibit 5) when Defendant stated that no such notice was ever received. Plaintiff presented no evidence that the advisement was ever mailed.
Furthermore, the Advisement is dated July 5, 2014, the first possible opportunity to attempt to institute an annual rental increase on a lease which began on July 10, 2013. However, Defendant submitted into evidence text messages sent to her by Plaintiff in 2017, which read, in part, "Your lease has an annual 5% rent increase which was not used so far." If Plaintiff acknowledged, by text message, in 2017 that the allowance for rental increase had not been used before that date, this casts significant doubt on the validity of the Advisement of Rental Increase submitted into evidence and dated two and a half years earlier, as well as Plaintiff's claims that he informed Defendant each year that her rent would be increased.
V. Multiple Dwelling Registration
Finally, A multiple dwelling, under the New York Multiple Dwelling Law, is a dwelling rented, leased, or occupied as the residence or home of three or more independent families (Multiple Dwelling Law § 4).
Every owner of a multiple dwelling shall file in the department a notice containing his name, address and a description of the premises, by street number or otherwise, and the class and kind of the dwelling thereon, in such manner as will enable the department to find the same; and also the number of apartments and rooms in each apartment on each story, and the number of families occupying the apartments"(Multiple Dwelling Law § 325 [1]). New York City has a similar registration requirement under the Administrative Code of the City of New York, § 27-2097 (b): "b. A registration statement shall be filed: (1) For every existing multiple dwelling. A registration statement filed by the [*5]present owner of a dwelling pursuant to the requirements of the prior law shall constitute compliance with this section."
In any city of over one million, an owner may not recover rent as long as they fail to comply with local registration requirements (Multiple Dwelling Law § 325 [2]). The Administrative Code of the City of New York also provides, "An owner who is required to file a statement of registration under this article and who fails to file as required shall be denied the right to recover possession of the premises for nonpayment of rent during the period of noncompliance" (§ 27-2107 [b]). No landlord may obtain a rent-based money judgment for a unregistered multiple dwelling (Czerwinski v Hayes, 8 Misc 3d 89, 94 [App Term, 2d & 11th Jud Dists. 2005].
In the instant case, it was established at trial that the house in which the Premises is located has one family living on the first floor, another (Plaintiff's) on the second, and a third family on the third floor. However, Plaintiff did not submit any proof that the Premises is currently properly registered as a multiple dwelling, and therefore, at this time, would not be entitled to collect any judgment for nonpayment of rent for that Premises.
On all accounts, therefore, Plaintiff has failed to meet his prima facie burden to establish the existence of a contract with a valid annual rental increase, proper notifications of rental increase pursuant to such lease, nor that any payments were not made. Furthermore, without establishing current multiple dwelling registration for the Premises, Plaintiff has failed to demonstrate that he would be entitled to a judgment at this time.
Accordingly, the Court finds in favor of DEFENDANT.
CONCLUSION
Plaintiff presented a Lease with handwritten portions that are neither initialed nor signed, including a clause which says the Lease is subject to a 5% annual increase. According to Defendant, such an increase would have gone against her intentions in signing a five-year lease and she would not have done so with an annual increase. As the clause is not initialed, there is no evidence of mutual assent to that material term in the lease or acceptance of it as a handwritten counteroffer; it is, therefore, invalid.
Additionally, Plaintiff has submitted no rental ledger or any other evidence of an accounting of what payments were and were not made by Defendant. Plaintiff also failed to provide proof that any written notices of rent increases were properly sent to Defendant by certified mail, pursuant to the terms of the lease. Furthermore, Plaintiff's text message of 2017 wherein he stated that the 5% rent increase allowance in the lease had not yet been used casts doubt upon the Advisement of Rental Increase, dated July 5, 2014, which was submitted without any proof that it was sent to Defendant.
Finally, without establishing that the Premises is currently registered as a multiple dwelling, Plaintiff has failed to demonstrate that he would be entitled to a judgment at this time.
Accordingly, the Court finds Plaintiff has failed to meet his prima facie burden in the instant matter and finds in favor of DEFENDANT. The instant action is dismissed.
This constitutes the Decision and Order of the Court.
Dated: June 9, 2021
_____________________________
Jamaica, NY
RACHEL E. FREIER, J
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
