Opinion
CV-007329/2019
08-07-2019
34 WEST 75TH STREET LLC, Plaintiff, v. Eileen HYNES, Defendant/Third-Party Plaintiff. Eileen Hynes, Third-Party Plaintiff, v. Geena Thompson, Third-Party Defendant.
For Plaintiff: William E. Baney, Esq., Belkin Burden Wenig & Goldman, LLP For Defendant: Bikram Singh, Esq., Singh & Rani LLP
For Plaintiff: William E. Baney, Esq., Belkin Burden Wenig & Goldman, LLP
For Defendant: Bikram Singh, Esq., Singh & Rani LLP
Dakota D. Ramseur, J.
Plaintiff/former Landlord 34 West 75th Street LLC ("Landlord") commenced this plenary action against Defendant/former tenant Eileen Hynes ("Tenant"), both appearing by counsel, for $13,975.00 in unpaid use and occupancy from September 2018 through January 2019 and legal fees. Tenant commenced a third-party action against her former subtenant, Third-Party Defendant Geena Thompson ("Subtenant"), who has not answered, for indemnification. Landlord moves: (a) pursuant to CPLR 3212, for summary judgment on the Complaint, including $11,025.00 in legal fees, or in the alternative, to schedule a hearing to assess appropriate legal fees (sequence 001). Tenant moves pursuant to CPLR 3215(a) for default judgment based on Subtenant's failure to timely appear (sequence 002). For the reasons below, Landlord's motion is granted in part, and Tenant's motion is denied.
Tenant initially appeared pro se. Tenant's counsel's notice of appearance has not been recorded; the Court therefore respectfully requests that the Clerk of Court enter said appearance.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Tenant resided at 34 West 75th Street, New York, NY 10023, Apartment 2-F ("the Apartment") pursuant to a lease with Landlord commencing August 8, 2016, extended by renewal lease dated August 7, 2017, and expiring August 31, 2018 (Landlord/Cherney Aff ¶ 4, citing Exh 2 ["the Lease"] ). During the subject period, Tenant paid $2,695.00 per month (id. ).
On August 1, 2018, Tenant signed a sublease with Subtenant expiring August 31, 2018 (Landlord/Cherney Aff ¶ 6, citing Exh 3 ["the Sublease"] ). On August 26, 2018, Subtenant notified Tenant that the former would not be vacating the Apartment on August 31, 2018 (Tenant/Singh Affirm ¶ 9). On September 26, 2018, Landlord commenced a holdover proceeding against Subtenant. On October 1, 2018, Tenant returned the keys to Landlord's superintendent's office. On January 8, 2019, Subtenant was evicted, and Landlord regained vacant possession. Landlord received no compensation for the Apartment from September 2018 through January 2019.
DISCUSSION
I. Landlord's motion for summary judgment (sequence 001)
On a summary judgment motion, the court must view all evidence in the light most favorable to the non-moving party ( Rodriguez v. Parkchester South Condominium Inc. , 178 AD2d 231 [1st Dept 1991] ). The moving party must show that it is entitled to judgment as a matter of law ( Alvarez v. Prospect Hosp. , 68 NY2d 320 324 [1986] ). Where no issue of fact exists, the legal standard for summary judgment requires that there be no genuine issue of material fact ( Anderson v. Liberty Lobby, Inc. , 477 US 242, 247-248 [1986] ). The failure to make a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). If the opposing party does not controvert the facts appearing in the movant's papers, those facts are deemed admitted and there is, in effect, a concession that no question of fact exists ( Juehne and Agel, Inc v. FW Baiden , 36 NY2d 539, 544 [1975] ).
A. Tenant's default under the Lease
In support of its motion for summary judgment, Landlord alleges that Tenant defaulted by subletting the Apartment to Subtenant. Paragraph 2 of the Lease Rider provides that "tenant shall not sublet or assign lease unless permission has been granted by the landlord in writing" (Landlord/Baney Affirm ¶ 13, citing Exh 2 ). Tenant concedes that she entered into a sublease with Subtenant without Landlord's consent, and that Subtenant subsequently held over after the Lease expired.
Landlord argues that Tenant is liable for all unpaid use and occupancy through the date Landlord regained vacant legal possession on January 8, 2019. "[U]pon termination of a lease, the tenant is obligated to remove the subtenant. A wrongful holdover by a subtenant is deemed the same as a wrongful holding over of the prime tenant/sublessor" ( Radin v. Arthur Holding Co. , 149 AD2d 576, 577 [2d Dept 1989] ). "Having failed to discharge his leasehold obligation to remove his licensee at the expiration of the lease term, the tenant remained responsible to the landlord for the licensee's continued occupancy through the pendency of the summary holdover proceeding" ( 88th St. Realty, LP v. Maher , 28 Misc 3d 10 [App Term 1st Dept 2010] ). Here, Tenant admits that Subtenant—present without Landlord's consent—remained in possession of the Apartment through expiration of the Lease until Landlord commenced a summary holdover proceeding and recovered possession on January 8, 2019. Accordingly, Landlord has demonstrated prima facie entitlement to summary judgment for use and occupancy from September 2018 through January 2019 totaling $13,495.00.
In opposition, Tenant argues that she is not liable for use and occupancy past September 2018 because she surrendered the keys to Landlord's superintendent on or about October 1, 2018. Even crediting this assertion, however, Tenant effectively concedes owing use and occupancy through the end of October because, where rent is due and payable on the first of the month, tenants who vacate during the month are generally liable, absent an agreement to the contrary, for the entire month's rent (see Smith v. Woodson , 31 Misc 3d 143[A], 2011 NY Slip Op 50870[U] App Term 2d, 11th & 13th Jud Dists 2011]; Aimco Columbus Ave., LLC v. Bivou Rest. Corp. , 2008 NY Slip Op 33684[U], *6 [Sup Ct NY County 2008] [rejecting tenant's argument that it should not have to pay use and occupancy for the entire month of October after vacatur October 3 because "since the lease calls for payment on the first of each month for the month in question"] ).
Moreover, even accepting that Tenant's delivery of the keys constituted an offer of surrender, there must also exist a "meeting of the minds on the terms of surrender" ( Connaught Tower Corp. v. Nagar , 59 AD3d 218, 218 [1st Dept 2009] ; see also Schnee v. Jonas Equities , 103 Misc 2d 625 [Civ Ct Kings County 1980] ["The return of the keys by the tenant is not sufficient by itself and must be accompanied by an act of acceptance such as a resumption of possession for the landlord's benefit."] ). Here, Landlord submits email correspondence between Tenant and Landlord's agent clearly demonstrating that Landlord rejected surrender unless the Apartment was vacant (Landlord/Baney Affirm ¶ 23, citing Exhs 1 and 2 ). This reflects the Lease, which explicitly states that "You have not moved out until all persons, furniture, and other property of yours is also out of the apartment. If your property [persons, or furniture] remains in the Apartment after the Lease ends, Owner may either treat You as still in occupancy and charge You for use" (¶ 8[b]; see 274 Madison Co. LLC v. Ramsundar , 2016 NY Slip Op 30530[U], *9 [Sup Ct NY County 2016] [Edmead, J.] [Landlord's agent's acceptance of surrender invalid where lease prescribed means of surrender], citing Connaught Tower Corp. v. Nagar , 59 AD3d 218, 218 [1st Dept 2009] ). Thus, Tenant's purported surrender of the keys could not have operated as a legal surrender of the Apartment because Tenant did not deliver the Apartment vacant.
To the extent that Tenant cites 176 PM, LLC v. Hgts. Stor. Garage, Inc. , (157 AD3d 490, 494 [1st Dept 2018] ), to argue that an issue of fact exists justifying denial of summary judgment, that case is distinguishable. In 176 PM , unlike here, "the tenant submitted evidence that, after it returned the keys to the landlord and vacated the premises, the landlord took possession of the premises, and not only sent bills directly to the subtenants, but also entered into its own contract with Central Parking to operate the parking garage and to pay the landlord each month all the income received from the garage operations" (id. ). Conversely, here, Landlord promptly commenced a summary holdover proceeding to evict Subtenant, which contradicts any argument that Landlord acquiesced to Subtenant's occupancy. Accordingly, the branch of Landlord's motion seeking use and occupancy is granted.
B. Attorneys' fees
Landlord also seeks an $11,025.00 judgment for legal fees and expenses incurred in the holdover proceeding and in this action, or in the alternative, a hearing to assess the reasonable amount of legal fees. Attorneys' fees and disbursements are generally considered incident to litigation, and the prevailing party may collect them only where an award is authorized by agreement between the parties or by statute or by court rule ( AG Ship Maintenance Corp v. Lezak , 69 NY2d 1 [1986] ). Landlord argues that pursuant to Lease Paragraph 19(A)(5), Tenant is liable to Landlord for "any legal fees and disbursements for legal actions or proceedings brought against [Tenant] because of a Lease default by [Tenant]" (Landlord/Baney Affirm ¶ 17). "Provisions, similar to the one here at issue, which allow for the recovery of attorney's fees by a landlord who prevails in a summary proceeding brought because of a tenant's breach of the lease have long been held to be valid and enforceable"( 379 Madison Ave v.Stuyvesant Co , 242 AD 567 [1st Dept 1934] ). To be considered a prevailing party, one must prevail on the central claims advanced, and receive substantial relief in consequence thereof ( 542 E 14th St LLC v.Lee , 66 AD3d 18, 24-25 [1st Dept 2009] ).
Here, the Landlord was the prevailing party in the holdover proceeding because Landlord obtained the central relief sought, Subtenant's eviction. Similarly, Landlord has also substantially prevailed in this action; as detailed above, the Court agrees with Landlord that Tenant is liable for damages as a result of Subtenant's unlawful holdover. To the extent, however, that the Court lacks information on this record to quantify fees, a hearing is justified to determine the amount of legal fees owed to the Landlord (see GAB Mgt. v. Blumberg , 226 AD2d 499, 501 [2d Dept 1996] [reversing fee award based solely on affidavit and remanding for hearing] ).
In opposition, Tenant contends that pursuant to 333 E 49th Partners LP v. Flamm , Landlord should not be able to recover legal fees incurred in the holdover proceeding solely against Subtenant because the Tenant was never named as a party in that proceeding and because the Tenant did not cause the Subtenant to hold over beyond expiration of the Lease ( 107 AD3d 584 [1st Dept 2013] ). Notably, the factual recitation in Flamm (and the underlying Supreme Court order it modifies) is brief, making it difficult to compare to the facts here.
However, to the extent that the Court can discern that the Appellate Division affirmed Supreme Court's denial of fees to a landlord against a tenant for fees incurred in a summary proceeding solely against a subtenant, and further denied reciprocal fees as a matter of equity because, as here, the subtenancy was unauthorized, the Court finds those facts sufficiently similar to limit fees here (id. ). Bearing in mind our courts' prohibition against claim splitting, the Court limits any fee award to fees incurred after judgment in the summary proceeding ( 930 Fifth Corp. v. King , 42 NY2d 886, 887 [1977] ["Failure to make a claim for attorney's fees in the initial summary proceeding results in the splitting of a cause of action which is prohibited."] ).
II. Tenant's motion for default judgment against Subtenant (sequence 002)
Tenant moves pursuant to CPLR 3215(a) for a default judgment against Subtenant on the Third-Party Complaint. Based on the Court's findings above, Tenant has demonstrated that Subtenant has defaulted in the third-party action despite due notice, and has demonstrated that she was forced to incur $13,475.00 as a result of Subtenant's holdover, which was a violation of the parties' sublease agreement. Accordingly, judgment shall be entered for Tenant against Subtenant in that amount.
CONCLUSION AND ORDER
For the above reasons, it is hereby
ORDERED and ADJUDGED that Plaintiff's motion (001) is granted, and the Clerk of Court shall enter judgment for Plaintiff against Defendant for $13,475.00, plus interest from January 8, 2019 and costs; and it is further
ORDERED and ADJUDGED that Defendant/Third-Party Plaintiff's motion for default judgment (002) is GRANTED, and the Clerk of Court shall enter judgment for Defendant/Third-Party Plaintiff against Third-Party Defendant for $13,475.00, plus interest from January 8, 2019 and costs; and it is further
ORDERED that the parties shall appear for a fee hearing on 10/21/19 in Room 353, 111 Centre Street, New York, NY.
This constitutes the decision and Order of the Court.