Opinion
No. CV–118388–08/KI.
2012-06-26
KINGS HOLDINGS LLC, Plaintiff, v. Shirley A. TERRICK, Defendant.
Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park, for Plaintiff. Frank Wharton, Esq, Brooklyn, Defendant Pro se.
Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park, for Plaintiff. Frank Wharton, Esq, Brooklyn, Defendant Pro se.
KATHERINE A. LEVINE, J.
Plaintiff Kings Holdings LLC (“Kings” or “plaintiff”) brings this action to recover the amount of $10,096.92 with interest from defendant Shirley A. Terrick (“defendant” or “Terrick”) due to her alleged breach of a lease agreement between the parties for a residential apartment. The sum of $10,096.92 represents rent due and owing from July 7, 2007 ($712.62) through March 8, 2008 ($1042.70 per month). Plaintiff has produced the original lease signed by Terrick dated March 2004 and several renewal leases executed under defendant's name, the last of which expired on March 31, 2009.
Defendant contends that although she signed the original lease so that her friend, Kathleen Degouville could have a place to live, she did not sign any of the renewal leases. She claims that she subleased the apartment to her friend and that her friend forged her (Terrick's) name on the subsequent renewal leases. Terrick also asserts that Degouville paid the rent to plaintiff directly and that plaintiff “accepted” the forged signature and continued the tenancy hence making Degouville, rather than Terrick liable for the rent.
The original lease between defendant and plaintiff's corporate predecessor and assignor, Maine Leasing Limited Liability Co., (“Maine”) specifically provides in paragraph 16, Assigning, Subletting and Abandonment” that the tenant cannot assign the lease or sublet the apartment without the Owner's “advance written consent ... to a request made by you in the manner” required by RPL § 226–b. Section 226–b(2)(a) affords the tenant the right to sublease the premises subject to the written consent of the landlord in advance of the subletting. The tenant must inform the landlord of his intent to sublease by mailing a notice of such intent via certified mail. The request shall be accompanied with details of the sublease and the proposed sub lessor. § 226–b(2)(b).
Since defendant asserted as a counterclaim that a valid sublease exists, she had the burden of proving that a valid sublease was effectuated pursuant to the lease and RPL § 226–b. At trial defendant offered no evidence on whether she ever requested of the landlord to sublease the apartment much less provide any evidence of mailing a notice of such intent to the landlord. Nor did she provide proof to support her contention that her friend, rather than she, paid the rent. As such, defendant has failed to prove that a valid sublease even exists.
Furthermore, since defendant disputes the genuineness of her signature on the renewals, she bears the burden of proving such forgery. The only signatures given to the court to compare were defendant's signature on the original lease, which she admittedly signed, and the renewals. Defendant submitted no other documents with either her signature or that of her friend who lived in her apartment. Pursuant to CPLR § 4536, this Court, as the sole trier of fact, may review the documents submitted to determine the genuineness of a signature on the note. See, Ibanez v. Pfeiffer, 76 Misc.2d 363, 350 N.Y.S.2d 964 (Civil Ct, Queens Co.1973) (court must rely on its ability to visually compare samples of defendant's signature contemporaneously made, and to observe conforming characteristics in order to determine whether defendant did sign the note). Based on the limited documents presented, this Court finds that the signatures on the renewals closely resemble defendant's signature on the original lease and declines to find that the renewals were forged.
Pursuant to Holy Properties v. Cole Products, 87 N.Y.2d 130, 637 N.Y.S.2d 964, 661 N.E.2d 694 (1995) and its progeny, a landlord has no legal duty to mitigate its damages when a tenant vacates the premises prior to the expiration of a lease term. In Holy Properties, the Court placed great weight upon the fact that the lease expressly provided that the plaintiff was under no duty to mitigate damages and that the tenant would remain liable for all monetary obligations upon its abandonment. 87 N.Y.2d at 137, 638 N.Y.S.2d 388, 661 N.E.2d 961. In Rios v. Carillo, 53 A.D.3d 111, 113, 861 N.Y.S.2d 129 (2d dept.2008) the Second Department found that there was no basis for limiting the broad language employed by the Court in Holy Prop to commercial premises. Furthermore, the lease between the parties in Rios provided that the defendant remained liable for the rent upon the cancellation of the lease except as provided by law. 53 A.D.3d at 114, 861 N.Y.S.2d 129. Therefore, the Rios court found that the residential landlord had no duty to mitigate damages.
Despite this lack of a duty to mitigate, a landlord is not entitled to rent until the expiration of the lease if there is a surrender of f the subject premises by operation of law. Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d 689, 690, 506 N.Y.S.2d 302, 497 N.E.2d 669 (1986); Mtr. Of Wasserman v. Ewing, 270 A.D.2d 427, 428, 705 N.Y.S.2d 271 (2d Dept.2000). A surrender by operation of law “occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated.” Riverside, supra, 68 N.Y.2d at 692, 506 N.Y.S.2d 302, 497 N.E.2d 669.See, 32–42 Broadway v. Panam Mortgage, 2011 N.Y. Skip Op 31091U, 2011 N.Y. Misc. LEXIS 1837, 2011 WL 1732659 (Sup.Ct., N.Y. Co.2011). This surrender is inferred from the conduct of the parties, where the tenant must abandon the premises and the landlord must accept the premises as a surrender. 32–42 Broadway, supra at 10. The mere retention of keys by the landlord after the tenant has surrendered them does not “alone constitute a surrender by operation of law.” Ford Coyle Props., Inc. V. 3029 Avenue v. Realty, 63 A.D.3d 782, 881 N.Y.S.2d 146 (2d Dept.2009); 80 State Street v. Allwen. 6 A.D.3d 978, 774 N.Y.S.2d 889 (2d Dept.2004) (plaintiff needs to take possession or obtain a new tenant in order to evince an intent to accept the surrender).
Here, the landlord did not merely retain the keys which the tenant surrendered. Rather, Plaintiff submitted a “Move Out Form” indicating that on December 14, 2007, tenant Terrick actually moved out without notice and that on December 18, 2007, Terrick requested her security deposit. The form indicates that as of December 14th Terrick was in arrears of $6,973.14 and that Maine withheld the security of $1,047.02 bringing the amount owed to $5,983.14 (see plaintiff's “2” and “3”). Maine noted that the lease expires on March 31, 2009 and that Terrick broke the lease and moved out without notice. Maine also filled out a sheet indicating that as of January 10, 2008 Terrick owed $5,926.12 after Maine retained the security deposit of $1,027.30 to bring down the actual balance due of $6,983.14. As of May 1, 2008, Maine had executed a new lease with tenant Guillame.
Based upon the above, this Court finds that Maine accepted defendant's surrender of the lease as of January 10, 2008, when it calculated that Terrick owed it $5,926.12 after withholding the security deposit from Terrick to bring down the balance due. As such, the Court awards plaintiff $5,926.12 plus interest, costs and attorney fees of $500.
This constitutes the decision and order of this Court.