Red Hook Alchemy, LLC v Patierno

[*1] Red Hook Alchemy, LLC v Patierno 2023 NY Slip Op 50803(U) Decided on July 29, 2023 Justice Court Of The Town Of Red Hook, Dutchess County Triebwasser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2023
Justice Court of the Town of Red Hook, Dutchess County

Red Hook Alchemy, LLC, Petitioner,

against

Michael Patierno, et al., Respondents.



Case No. C-482-17


Petitioner is represented by Paul Freeman, Esq., of Freeman Howard, P.C., Hudson, New York. Respondents are represented by Oliver Budde, Esq., Harrison, New York. Jonah Triebwasser, J.

This matter is again before the Court for a determination as to the amount of an undertaking to be deposited with the Court to support a stay pending appeal of the Court's Order of the eviction of the respondents by its decision of July 7, 2022.

Petitioner is represented by Paul Freeman, Esq., of Freeman Howard, P.C., Hudson, New York. Respondents are represented by Oliver Budde, Esq., Harrison, New York.

Court's Analysis

Section 5519 of the Civil Practice Laws and Rules requires as follows in order for tenants to secure a stay on appeal of this Court's order of eviction:

Stay of enforcement. (a) Stay without court order. Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:6. the appellant or moving party is in possession or control of real property which the judgment or order directs be conveyed or delivered, and an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will not commit or suffer to be committed any waste and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property, or the part of it as to which the judgment or order is affirmed, from the taking of the appeal until the delivery of possession of the property; if the judgment or order directs the sale of mortgaged property and the payment of any deficiency, the undertaking shall also provide that the appellant or moving party shall pay any such deficiency; (emphasis added)

Clearly, this section applies to the instant matter. The questions now become: how much of an undertaking is required and how and when shall it be paid?

The Amount of the Undertaking

As no fair rental value was ever agreed upon by the landlord and tenants in the past, both sides have offered appraisals of what they each consider comparable properties to the rental property in question. Landlord's appraisal was for $5,800.00 per month, based upon what she claimed were comparable properties, all of which were outside of Red Hook, New York, the location of the subject property. Tenants submit what they contend are comparables, averaging $2,729.00 per month. Although tenants' comparables are located in Red Hook, New York, some of them were for properties smaller than the subject property.

Given these two extremes, the Court will be Solomon-like [FN1] and rule that the fair market rental is the average of the two appraisals, or $4,264.50.

Landlord's counsel contends that the undertaking should include amounts for the roof repair, town, county and school taxes, as well as the cost of insurance. These items are traditionally the landlord's costs of doing business and are covered by the monthly rental. Landlord has cited no authority to support including these items in the undertaking, and the Court declines to do so.

How the Undertaking Is To Be Paid

Landlord contends that the undertaking should be paid, retroactively, from the date of tenants' Notice of Appeal, July 27, 2022, and that it be extended to include the possible time that the Appellate Term will take to decide this appeal (perhaps as much as two years, or more.) Tenants contend that the undertaking should accrue from the date of the lifting of the ERAP [FN2] stay that tenants acquired, or May 12, 2023. Tenants cite no authority for their contention that the undertaking accrues from the lifting of the ERAP stay. It is axiomatic that the appeal was created by tenants when they filed their Notice of Appeal on July 27, 2022, and this is the appeal for which they seek the stay. Therefore, logic demands that any undertaking relate back to the date of the creation of the appeal on July 27, 2022.

For these reasons, tenants will file an undertaking with the Clerk of this Court in the [*2]amount of $51,174.00 [FN3] by 5:00 p.m. on September 1, 2023. Said undertaking shall be by secured bond, bank check, money order or certified check and made payable to "Town of Red Hook Justice Court."

Tenants claim that they are financially unable to pay any substantial retroactive undertaking and ask that the Court require a de minimis undertaking. Tenants cite as authority for this proposition the New York Supreme Court case of Genger v. Genger, 2016 NY Slip Op 3168(U). This case does not involve a landlord tenant matter, and is not controlling authority on this Court, nor does the decision provide an analysis as to why that court granted relief based upon movant's financial condition. In addition, tenants did not provide this Court with financial records to document their alleged financial distress. Absent that controlling authority and proof, the landlord is entitled to have monies deposited with the Court to assure no further pecuniary loss due to this litigation.

As to the prospective rentals owed from the date of this decision until the Appellate Term addresses the issues on appeal, landlord seeks a lump sum undertaking to cover the expected two year delay in the Appellate Term addressing this matter. Tenants ask for a monthly sum to be deposited with the Court, rather that the much larger speculative amount sought by the landlord.

While the New York State Office of Court Administration has been very generous with the justice courts in suppling computers, software and training, a crystal ball in not in their inventory. The Court has no idea how long it will take for the Appellate Term to fully address this matter. Therefore, in complete fairness to the parties, an undertaking to cover prospective rentals of $4,264.50 per month, beginning with August of 2023, will be deposited with Clerk of this Court by 5:00 p.m. on August 15, 2023, and on the 15th of each month thereafter, until the matter is decided by the Appellate Term. Said monthly undertaking shall be by bank check, money order or certified check and made payable to "Town of Red Hook Justice Court." This monthly payment procedure is not unique and has been used before (see A.K. Estates, Petitioner, v, 454 Central Corp, LLC, et al., 32 Misc 3d 1233(A) (District Court, Nassau County, 2011)).

Tenants' failure to pay the initial undertaking of $51,174.00 by 5:00 p.m. on September 1, 2023, or any monthly undertaking by 5:00 p.m. on August 15, 2023, and on the 15th of each month thereafter will cause the automatic lifting of the stay pending appeal, and the eviction can move forward immediately.

This decision also constitutes the Order of this Court.

SO ORDERED.
Dated: Red Hook, New York
July 29, 2023

__________________________________________
JONAH TRIEBWASSER,
Justice, Town of Red Hook Footnotes

Footnote 1:The Judgement of Solomon is a story from the Hebrew Bible in which Solomon ruled between two women who both claimed to be the mother of a child. Solomon ordered the baby be cut in half, with each woman to receive one half. The first woman accepted the compromise as fair, but the second begged Solomon to give the baby to her rival, preferring the baby to live, even without her. Solomon ordered the baby given to the second woman, as her love was selfless, as opposed to the first woman's selfish disregard for the baby's actual well-being.

Footnote 2:New York's Emergency Rental Assistance Program.

Footnote 3:The monthly rental of $4,264.50 multiplied by the 12 months that have accrued since the filing of the Notice of Appeal.