Opinion
Docket No. 0939-20
02-24-2022
Gerald STOCKTON, Administrator of the Estate of Benjamin Stockton, Petitioner-Landlord, v. Byran MCELDERRY, Respondent-Tenant, Jane Doe, Respondent-Undertenant.
Attorneys for Petitioner: Letiticia Arzu, Esq., The Bozeman Law Firm PLLC, 6 Gramatan Avenue, Fifth Floor, Mount Vernon, NY 10550 Attorney for Respondent: Richard Boatti, Esq., Boatti PLLC, 475 Sterling Pl, Ste 3B, Brooklyn, NY 11238
Attorneys for Petitioner: Letiticia Arzu, Esq., The Bozeman Law Firm PLLC, 6 Gramatan Avenue, Fifth Floor, Mount Vernon, NY 10550
Attorney for Respondent: Richard Boatti, Esq., Boatti PLLC, 475 Sterling Pl, Ste 3B, Brooklyn, NY 11238
Lyndon D. Williams, J.
Petitioner commenced this holdover action in September 2020 seeking to recover the residential premises after expiration of the lease agreement. The Petition provides that the tenancy ended on March 31, 2020 and that $8,500.00 in arrears plus $10,200 in use and occupancy is due and owing to petitioner. On September 25, 2020 the parties appeared. Respondent's name was amended from "Byron McEderry" to "Byron McElderry" to reflect the correct spelling of his name.
On February 24, 2021, respondent filed a COVID-19 Hardship Declaration.
On September 7, 2021, petitioner challenged respondent's hardship declaration.
The parties appeared at a COVID-19 hardship hearing on October 6, 2021. The Court found the respondent's hardship claim to be valid. The Court also set a motion schedule for respondent's summary judgment motion.
On October 25, 2021, respondent filed a Notice of Amended Motion for Summary Judgment.
On November 3, 2021, Petitioner's Counsel, Leticia Arzu, filed a letter with the Court, dated November 2, 2021, advising that petitioner was withdrawing the matter. The letter states, "This letter serves to inform you that we are withdrawing the referenced case. We asked the Respondent's attorney if he would be willing to sign a Stipulation withdrawing this case, but in order to do so, he is asking that our client pay his attorney's fees in the amount of $2,044.00. A copy of his response to my email is attached."
On November 2, 2021, respondent's counsel, Richard Boatti, emailed the court clerks, stating in pertinent part, "The Respondent does not consent to any termination of this action that doesn't result in his attorney's fees getting paid by the Petitioner. Accordingly, the Respondent does not withdraw his Summary Judgment motion and wishes to have that motion adjudicated on the merits."
On November 15, 2021, petitioner filed an Affirmation in Opposition to Respondent's request for attorney's fees.
On December 1, 2021, respondent filed an Affirmation in Reply and In Further Support of Amended Motion for Summary Judgment.
By Decision and Order dated, December 21, 2021, the Court (J. Johnson) held that the Petitioner could not withdraw the matter without the consent of the respondent or leave of court. The court further held that the decision on the pending motions would be held in abeyance until the COVID-19 stay period expired on January 15, 2022.
On February 1, 2022, the parties appeared. Petitioner did not file a motion to discontinue. Petitioner's counsel conceded to the claims in respondent's summary judgment motion and did not make any arguments opposing the merits of the claim. Petitioner's counsel only opposed respondent's request for attorney's fees.
Summary Judgment Motion
In support of the motion for summary judgment, respondent argues that the Notice of Petition and Termination were defective because they do not properly list the respondent's legal name. The petition and notice of petition list him as "Bryan McEddery", but his true legal name is "Bryan McElderry". On September 25, 2020, the petition was amended to reflect the correct spelling as Bryan McElderry with the respondent's consent. Additionally, respondent argues that the termination notice claims that respondent has a "month-to-month" tenancy, when in fact he was occupying the premises pursuant to a written lease that had not yet expired as of the date of the termination notice, December 19, 2019. The lease provides that the term expires on December 31, 2019. As such, respondent argues that he was not a month-to-month tenant at the time the termination notice was served upon him. Finally, respondent argues that the termination notice is defective as it list Petitioner Gerald Stockton as the "administrator of the Estate. .", when in fact petitioner was and is a Limited Administrator of the Estate. A copy of the Surrogates Court order is attached to the motion papers as Exhibit D.
The 90-Day Notice of Termination, dated December 19, 2019 states in pertinent part:
To: Bryan McEderry and Jane Doe ...
PLEASE TAKE NOTICE that the Owner and Landlord (Gerald Stockton, Administrator of the estate of Benjamin Stockton) of the referenced premises ... hereby elects to terminate the month to month tenancy of the Premises as of March 31, 2020, covering the space now occupied by you.
A holdover proceeding will not lie absent a proper predicate notice. Predicate notices "must be clear, unambiguous, and unequivocal in order to serve as the catalyst which terminates a leasehold" ( Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp. , 162 AD2d 238, 556 N.Y.S.2d 339 [1st Dept., 1990], and are not subject to amendment ( Singh v. Ramirez , 20 Misc 3d 142(A), 2008 NY Slip Op. 51680(U) [App. Term, 2nd & 11th] ("It is elementary that the predicate notice cannot be amended.").
The predicate notice herein is confusing. The misspelling of defendant's name is not a defect requiring dismissal of the action,( Fa Wah Mgt., v Alvarrez , 18 Misc 3d 132(A) [2d Dept 2008] )(petition and termination notice with misspelled tenant name is a minor error not rendering the notice defective). The reference of Mr. Stockton as Administrator versus Limited Administrator, is also of no consequence. The Letters of Limited Administration, dated April 25, 2019, provide that Gerald Stockton is the Fiduciary Appointed to "perform all acts requisite to the proper administration and disposition of the estate ..., subject to the limitations and restrictions, if any, set forth above." The Letters of Limited Administration provide that there are no limitations on Mr. Stockton's authority to manage the Estate of Benjamin Lee Stockton.
However, the Court finds that the misstatement about the nature of the tenancy cannot be amended and renders the termination notice and petition defective. At the time the termination notice was served on the tenant, on December 24, 2019, the tenant was in occupancy pursuant to a written lease agreement for a term that commenced on January 1, 2019 and ended on December 31, 2019. He was not a month to month tenant. This defect alone requires the dismissal of the proceeding.
The petition is dismissed without prejudice.
Attorneys Fees
The Court will now address the application for attorney's fees. Respondent argues that the lease agreement entitles him to an award of attorney's fees as the prevailing party in this mater. Paragraph 19 of the lease provides, "In any action or legal proceeding to enforce any part of this Agreement, the prevailing party shall recover reasonable attorney fees and costs. To support an award of attorneys’ fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant (see Walentas v Johnes , 257 AD2d 352, 354, 683 NYS2d 56 [1st Dept 1999], lv dismissed 93 NY2d 958, 716 NE2d 700, 694 NYS2d 635 [1999] ), and the controversy must have reached its ultimate outcome whether or not such outcome is on the merits ( Elkins v Cinera Realty, Inc. , 402 NYS2d 432 [2d Dept 1978] (emphasis added). "A controversy reaches an ultimate outcome ‘when a court disposes of the action on the merits, or when it becomes clear that the action, although not disposed of on the merits, cannot or will not be commenced again on the same grounds ( 2566 Bainbridge Assoc. LLC v Harvey , 44 Misc 3d 1201(A) [Civ Ct. Bronx Co. 2014] (citing Roxborough Apt. Corp. v Becker , 177 Misc 2d 408 [Civ Ct. Kings Co. 1998]. For example, a case may be said to have reached its ultimate outcome when it is dismissed or discontinued without addressing the merits, and is not recommenced within a reasonable time by the landlord ( 2566 Bainbridge , 44 Misc 3d 1201(A), (citing Park S. Assocs. v Essebag , 126 Misc 2d 994, 995 [App Term 1st Dept. 1984] ; see also Murray House Owners Corp v Welter, 64 Misc 3d 129(A) [1st Dept 2019] ).
Here, the Court has not decided the ultimate outcome, which is to decide whether the respondent is entitled to possession of the premises after expiration of his lease term, in December 2019. Accordingly, the Court finds that respondent's attorneys fees application is premature ( Horatio Arms v Celbert , 41 Misc 3d 11 [1st Dept 2013] ( tenant's application for attorney's fees premature in a holdover proceeding that has not reached the ultimate outcome and dismissed without prejudice). The petitioner has 120 days from the date of this decision to commence a new holdover proceeding. This will provide the petitioner ample opportunity to serve a new predicate notice and commence a new summary proceeding should he still seek to obtain possession of the residential premises. If the petitioner fails to commence a new holdover proceeding by June 24, 2022, the respondent may renew his application for attorney's fees.
This constitutes the Decision and Order of this Court.