Opinion
984592004
Decided April 7, 2005.
This is a non-primary residence holdover proceeding in which the petitioner seeks to strike the jury demand in the respondent's answer. It is undisputed that the initial lease dated December 1, 1979, included a jury waiver provision, and as a nontraditional family member, the respondent succeeded to this lease in 1989. The court is not persuaded by the respondent's initial argument that he was not a signature to the initial lease and therefore did not agree to and cannot be bound by said waiver provision. Once the respondent succeeded to the aforementioned initial lease in 1989, the terms of said lease, including the jury waiver provision, carried over and became binding upon the respondent. ( N.Y.U. v. Eckstein, N.Y.L.J., October 15, 2001, pg. 18, col. 1 [App. Term 1st Dept.].) On the other hand, the respondent's alternative argument that at the time the initial lease was entered into, no cause of action existed under rent regulation for non-primary residence, and hence there could not have been a knowing jury waiver for same, ( Klipack v. Raymar, 273 A.D. 54, 75 NYS2d 418 [1st Dept. 1947]), bears further analysis.
The petitioner also sought discovery and use and occupancy; however, these items were resolved by the parties, leaving the jury demand as the sole issue.
In Klipack, the Appellate Division determined that although a jury trial is an important right which may be waived by agreement, the extent of the waiver is one of intention under the circumstances. ( Id.) It then held that a jury waiver clause in a written lease does not apply to a cause of action enacted by statute subsequent to the date of the lease, in which the tenants sought damages, rent penalty and excess rent. Besides Klipack, the respondent also relies upon Bldg. Management v. Schwartz, ( 3 Misc 3d 351, 773 NYS2d 242 [Civ. Ct., NY Cty. 2004] (respondent did not waive jury trial because the definition of nontraditional family succession rights under Rent Stabilization did not exist when the lease was executed in 1971)), and 500 West v. Merkin, (April 26, 2000, N.Y.L.J., pg. 28, col. 4 [Civ. Ct., NY Cty.] (no waiver where the rent controlled tenant's 1969 lease predates the enactment of judicial cause of action for non-primary residence)), to support its position that no cause of action for non-primary residence existed at the time the initial lease was executed.
There are, however, three more persuasive decisions all involving a non-primary residence proceeding and a pre-1983 rent stabilized lease with a jury waiver clause. They are as follows: King v. O'Connell, ( 172 Misc2d 925, 660 NYS2d 283 [Civ. Ct., NY Cty. 1997] (1974 lease)), MHM v. Millman, (N.Y.L.J., March 29, 2000, pg. 27, col. 3 [Hous. Part, NY Cty.] (1971 lease)), and Stribula v. Quinn, (N.Y.L.J., June 21, 2000, pg. 30, col. 4 [Hous. Part, NY Cty.] (1978 lease)). All three fact patterns were similar to the instant proceeding, and in all three the respondents similarly argued that it was not until the enactment of the Omnibus Housing Act in 1983, which amended New York City Adm. Code § 26-504(a)(1), that an owner could refuse to renew a rent stabilized lease by reason of non-primary residence. And in all three the court enforced the jury waiver clause. As Judge Hagler succinctly noted in MHM v. Millman, (N.Y.L.J., March 29, 2000, supra), the Omnibus Housing Act did not create a new cause of action, but simply granted a landlord the remedy of proceeding directly to court to recover possession, and eliminated the predicate requirement of obtaining an administrative order from the former New York City Conciliation and Appeals Board. (See, Rent Stabilization Code former § 54(e) et seq. [eff. March 1, 1972].) Hence a cause of action for non-primary residence did exist in 1979 via an administrative proceeding, which itself does not entail a jury trial and therefore no expectation for same could have existed. Given the aforementioned historical enlightenment, and to a lesser extent, the resulting inequity if the court allowed the respondent to rely upon the initial lease to support its attorney fees counterclaim, while at the same time repudiate the jury waiver clause, ( Sherry v. Sherry, 273 AD2d 14, 708 NYS2d 105 [1st Dept. 2000]), the petitioner's motion to strike the jury demand is granted. The instant proceeding is marked off the calendar pending discovery.
This constitutes the decision and order of this court, copies of which are being mailed by the Court to the parties' attorneys.