Opinion
5280/17
07-18-2017
Kalaja Realty, LLC, Petitioner, v. Elvi Morel, Respondent.
Appearing for the Petitioner: Lazarus Karp & Kalamotousakis, LLP, By: Samantha Sumilang, Esq. Appearing for the Respondent: Legal Services NYC-Bronx, By: Roland Nimis, Esq.
Appearing for the Petitioner: Lazarus Karp & Kalamotousakis, LLP, By: Samantha Sumilang, Esq. Appearing for the Respondent: Legal Services NYC-Bronx, By: Roland Nimis, Esq. Kimon C. Thermos, J.
Upon the foregoing cited papers, the Decision/Order on this motion is decided as follows:
This summary holdover proceeding was commenced in February 2017, seeking possession of the subject rent stabilized apartment on the basis that Respondent, whose tenancy began in March 2010, violated a substantial obligation of his lease by engaging in a chronic pattern of late, partial and/or non-payment of rent. A Notice to Cure was served on December 16, 2016. The Notice to Cure alleges that Petitioner commenced four non-payment proceedings against Respondent, under Index numbers: 31780/10, 71663/12, 6852/14, 26560/16, each resulting in the entry of a judgment in favor of Petitioner and the issuance of a warrant of eviction. Moreover, the notice states that there was a continuing default over a 25-month period between November 2014 and November 2016, where the rent was late every month. A Notice of Termination was served on January 4, 2017. Service of the Notice of Petition and Petition was made on January 30, 2017. After the matter was adjourned twice for settlement or trial, Legal Services NYC-Bronx filed a Notice of Appearance on behalf of the Respondent on April 24, 2017, followed by the instant motion.
Respondent, by counsel, moves for an Order, pursuant to C.P.L.R. §3211(a)(7), dismissing the petition for failure to state a cause of action for breach of a substantial obligation of the lease. Alternatively, Respondent seeks summary judgment, pursuant to C.P.L.R. §3212, on the basis that there are no triable issues of fact regarding Respondent's assertion that a breach of a substantial lease obligation cannot be established. Respondent also seeks an award of reasonable legal fees should he prevail.
In opposition, Petitioner argues that Respondent has breached a substantial obligation of his lease, in that, since he became a tenant, he has not paid rent on time without justification, causing Petitioner to bring four non-payment cases between 2010 and 2016 and that Respondent continues to be in default, as he has not paid rent since October 2016.
Dismissal pursuant to CPLR §3211(a)(7)
When considering a motion to dismiss pursuant to CPLR §3211(a)(7), the court must determine whether the pleadings state a cognizable cause of action. The Court must "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference." EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). See also, Gorelik v. Mount Sinai Hosp. Ctr., 19 AD3d 319 (1st Dept. 2005). "The motion must be denied if, from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 NY2d 46 (2001).
It is well-settled that an obligation to pay rent under a lease in a timely manner is a primary obligation of a tenancy and continued failure to do so, without justification, constitutes a violation of a substantial obligation of the tenancy. Zalaznick v. Imbembo, 35 Misc 2d 164 (App. Term 1st Dept. 1962); Desjardins v. Owens, NYLJ 4/23/80 (App. Term 1st Dept. 1980), aff'd 81 AD2d 758 (1st Dept. 1981); Matter of Estate of Birnbaum v. Yankee Whaler, Inc., 75 AD2d 708 (4th Dept. 1980), aff'd 51 NY2d 935 (1980); East End Residences v. Dolen, NYLJ 4/14/97 (App. Term 1st Dept. 1997).
It is further well-settled that a history of repeated non-payment cases brought to collect chronically late rent in a relatively short time period may support a holdover proceeding based upon a violation of a substantial obligation of the tenancy, depending upon the totality of the circumstances of each predicate case. Adam's Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 (App. Term 1st Dept. 2000); Pamela Equities Corp v. Coverton, NYLJ 7/18/90 (App. Term 1st Dept. 1990); Greene v. Stone, 160 AD2d 367 (1st Dept, 1990). The prior non-payment cases need not have resulted in a judgment or a warrant to support such a holdover proceeding. Stern v. Carroll, 28 Misc 2d 507 (App. Term 1st Dept. 1960). Moreover, the analysis is not limited to the number of cases commenced. As the Court found in Greene v. Stone, "[t]he analysis, when properly evinced, may include breaches that did not comprise a non-payment proceeding." Id. at 368. See also, Sharp v. Norwood, 89 NY2d 1068 (1997), where the court held that the landlord's commencement of repeated non-payment cases and service of rent demands due to the Respondent's chronic rent defaults may support an eviction proceeding on the ground that Respondent violated a substantial lease obligation.
Herein, Respondent seeks dismissal alleging that the petition fails to state a cause of action for breach of a substantial lease obligation, since a warranty of habitability defense was raised in each of the four prior nonpayment cases used as grounds for the instant proceeding. Furthermore, relying on the six-year statute of limitations for contracts set forth in C.P.L.R. §213(2), Respondent argues that the oldest of the four non-payment proceedings, which was commenced in 2010, cannot comprise grounds for this cause of action since it was commenced six years prior to the instant action. Respondent's memorandum of law includes an elaborate discussion of this Court's prior holding in a proceeding where the issue of the statute of limitations, as it applies to chronic non-payment holdover cases, was analyzed in depth. See, 705 Gerard LLC v. Nunez, January 16, 2016, Bronx L & T Index #: 6475/15.
In Nunez, Petitioner predicated its cause of action upon five non-payment proceedings brought between 2004 and 2013, to wit: a proceeding in 2004, 2010 and 2012 and two proceedings in 2013. This Court engaged in an extensive analysis of the applicability of the six-year statute of limitations as applied by various cases both in the lower courts and at the appellate level. In doing so, this Court sought to clarify the apparent confusion between the number of non-payment cases or defaults required to constitute a prima facie case of a chronic non-payment holdover based upon a violation of substantial lease obligation and a Petitioner's ability to incorporate non-payment cases commenced more than six years prior to the commencement of the holdover.
In delineating a standard, the Court held, and continues to hold, that there must be a pattern of unjustified defaults, to wit: three non-payment cases or two non-payment cases and at least one rent default outside the context of a court proceeding, which are temporally clustered. When this pattern is established, a chronic non-payment holdover based upon a breach of a substantial lease obligation cause of action accrues, at which time the six-year statute of limitation pursuant to CPLR §213(2) begins to run.
When it comes to how far back a landlord can look to incorporate defaults, the six-year statute of limitations cannot be used to establish the elements of a chronic non-payment holdover based upon a breach of a substantial lease obligation. Upon deciding which prior cases or defaults can be incorporated in the cause of action, the six-year statute of limitations does not provide a look back period or cutoff date. It is, as is all statutes of limitation periods, a deadline for the commencement of a claim once it has accrued. More specifically, the statutes of limitation set forth the maximum about of time a litigant can wait before commencing a proceeding after the accrual of a claim. They do not define when the claim accrues.
See, Weil v. Chandler, 38 Misc 2d 58 (App. Term 1st Dept. 1962), where the court held that an isolated instance of late payment due to a tenant's temporary financial embarrassment is not grounds for eviction. See also, Wadsworth Terraces Assocs. v. Jones, NYLJ 4/30/91 (App. Term 1st Dept. 1991), where the court held that "proof of only one or two prior non-payment proceedings, without more, will not support a finding that a substantial obligation of the lease had been violated."
In Chama v. Taylor, the predicate for the holdover was grounded on the commencement of four non-payment proceedings. After excluding two of the prior proceedings for not comprising proper grounds due to "legitimate disputes as to the propriety of the monthly rent sought by the Landlord and the existence of rent impairing conditions in the apartment," the court affirmed dismissal on a motion for summary judgment. Considering the apparent lack of a pattern with only two predicate proceedings, the court found that the remaining two proceedings commenced fell short of constituting sufficient grounds to trigger an eviction. Chama v. Taylor, 37 Misc 3d 70, 71 (App. Term 1st Dept. 2012).
But see, Ludor Properties, LLC v. Brooks, 33 Misc 3d 139(A) (App. Term 1st Dept. 2011), where the court held that three non-payment cases established a cognizable possessory claim sufficient to withstand the tenant's CPLR 3211 (a)(7) dismissal motion. See also, Greene v. Stone, supra. and 31-67 Astoria Corp. v. Cabezas, 55 Misc 3d 132(A) (App. Term 2nd Dept. 2017).
In Greene v Stone, the First Department Appellate Division held that it was error to dismiss the landlord's case on the grounds that the holdover cause of action constituted only three prior non-payment proceedings and that the court should have also considered defaults outside of the proceedings. Greene v Stone, supra.
Similarly, in 31-67 Astoria Corp. v. Cabezas, the Appellate Term of the Second Department permitted inclusion of a history of defaults dating back to 2004, well outside the circumspection time period argued by Respondent, upon its reversal the lower court's dismissal of a chronic non-payment holdover commenced in 2015, finding that three non-payment proceedings were prima facie sufficient to constitute a cause of action. 31-67 Astoria Corp. v. Cabezas, 55 Misc 3d 132(A) (App. Term 2nd Dept. 2017).
In Nunez, this Court did not allow the 2004 proceeding to become a part of the cause of action, not because it was barred by the statute of limitations, but because of its six-year separation from the next default in 2010 making it too long of an interval to satisfy the appellate authority requirement that the defaults be within a relatively short time period, or temporally clustered, and form a pattern of unjustified defaults. Adam's Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 (App. Term 1st Dept. 2000); Pamela Equities Corp v. Coverton, NYLJ 7/18/90 (App. Term 1st Dept. 1990); Chelsea 19 Associates v. Minetti NYLJ 10/27/86 (App. Term 1st Dept. 1986); Hudson Realty Co. v. Simon, NYLJ 6/9/83 (App. Term 1st Dept. 1983); Bennett v. Mentis, NYLJ 9/13/00 (App. Term 1st Dept. 2000); 501 West Realty v. Chapa, 2003 WL 1907145 (App. Term 1st Dept. 2003).
The instant holdover is predicated upon four non-payment proceedings between 2010 and 2016 each commenced approximately two years apart (thus, temporally clustered), all of which resulted in judgments in favor of Petitioner without any abatement in the landlord's claim for rent arrears, coupled with allegations of defaults outside of the pendency of these actions commencing in 2014. This constitutes a prima facie case for a chronic non-payment holdover based upon a breach of a substantial lease obligation.
With regard to accrual, the cause of action could only have accrued after conclusion of the third non-payment case in 2014, since the third non-payment case established a pattern of temporally clustered unjustified defaults. In addition, regarding the six-year statute of limitation, since this proceeding was commenced in 2017, three years after the cause of action accrued, it is timely.
Regarding the issue of warranty of habitability, Respondent argues that, since a warranty of habitability defense was raised in each of the four prior non-payment cases used as grounds for the instant proceeding and some of the stipulations of settlement in those cases contained provisions requiring repairs, those cases could not support a chronic non-payment holdover based upon a breach of a substantial lease obligation. However, this argument is unavailing.
Although it has been held that "where there are bona fide claims that an apartment is in need of repairs, precipitating the withholding of rent, a holdover petition based upon chronic non-payment should not be sustained," [Bennett v Mentis, supra.; See also, Greene v Stone, supra.], it has also been held that where the tenant fails to sufficiently justify the pattern of payment defaults, the landlord is entitled to a summary judgment of possession. Pamela Equities Corp v Coverton, supra.
Therefore, without conclusive proof that the rent was being withheld in the exercise of the warranty of habitability defense to compel Petitioner to perform its obligations to perform repairs, a motion to dismiss for failure to state a cause of action on this ground must fail. GIT LEB, LLC v. Golphin, 51 Misc 3d 144(A) (App. Term 2nd Dept. 2106); Zevrone Realty Corp.v. Gumaneh, 51 Misc 3d 142(A) (App. Term 1st Dept. 2016). The papers submitted herein do not provide any such proof. Rather, a review of the proceedings had under the predicate non-payment proceedings evinces the contrary, that the failure to pay the rent was due to the unavailability of the funds. As such, dismissal, pursuant to C.P.L.R. §3211(a)(7), is not warranted herein.
Accordingly, Respondent's request for dismissal, pursuant to C.P.L.R. §3211(a)(7), is denied.
Summary Judgment
Summary judgment is a drastic remedy and cannot be granted where there is any doubt as to the existence of a triable issue of fact or if there is even arguably such an issue. Hourigan v. McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637 (1985); Andre v. Pomeroy, 35 NY2d 361 (1974). The function of the court is to determine whether any issues of fact exist that preclude summary resolution of the dispute between the parties on the merits. Consolidated Edison Co. v Zebler, 40 Misc 3d 1230A (Sup. Ct. NY 2013); Menzel v Plotnick, 202 AD2d 558 (2nd Dept. 1994). The Court must accept, as true, the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. Warney v Haddad, 237 AD2d 123 (1st Dept. 1997); Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dept. 1989). The movant must submit admissible evidence to demonstrate prima facie entitlement to summary judgment as a matter of law and the absence of any issues of fact that require a trial. Zuckerman v City of New York, 49 NY2d 557 (1980); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Alvarez v Prospect Hosp., 68 NY2d 320 (1986). The movant's failure to make such a showing mandates denial of summary judgment, regardless of the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Ctr., supra; Alvarezain v Prospect Hosp., supra. Once a prima facie showing has been made, the burden shifts to the non-moving party to submit admissible evidence sufficient to raise a triable issue of fact. Giuffrida v. Citibank Corp., 100 NY2d 72 (2003); Zuckerman v. City of New York, supra.
In light of the foregoing, Respondent failed to demonstrate the absence of a material issue of fact that requires a trial. Notably, Respondent's motion does not contain an affidavit from Respondent recounting the facts and circumstances of the warranty of habitability defenses in the predicate non-payment cases. An affirmation by an attorney with no personal knowledge of the facts has no probative value, unless supported by probative admissible evidence. Zuckerman v NY, 49 NY2d 557 (1980); Unlimited Assets, Inc. v Chowdry, NYLJ 5/3/17 (Civ. Bronx 2017). Furthermore, an answer not verified by a party with knowledge cannot serve as a substitute for a party's affidavit. 1644 Broadway LLC v Jimenez, 2014 NY Slip Op 50859U (Civ. Kings 2014). Respondent's affidavit, annexed to his attorney's reply affirmation, will not be considered, since it is prejudicial to Petitioner. McNair v Lee, 24 AD3d 159 (1st Dept. 2005); Ritt v Lenox Hill Hospital, 182 AD2d 560 (1st Dept. 1992). Notwithstanding, a review of the papers properly submitted indicates that there are several material issues of fact regarding the alleged withholding of rent due to repairs and/or disputes as to the amount of rent sought, which can only be determined at trial. As such, Respondent's request for summary judgment is denied.
Respondent's request for attorney's fees is also denied, as premature.
Accordingly, Respondent's motion is denied, in its entirety. All parties are directed to appear on August 31, 2017, at 9:30 a.m., in Part J, Room 490, for settlement or trial.
This constitutes the Decision and Order of the Court. Dated: July 18, 2017 Bronx, New York ____________________________ Kimon C. Thermos, J.H.C.