Opinion
Index No. 51341/2020
09-14-2023
Turin Housing Development Fund Corporation, Petitioner, v. Miner Kennedy, as Administrator for the Estate Of Mary Lee Mayo, and VALIENNE ROUSSEL, as Administrator for the Estate Of Mary Lee Mayo, Respondents.
For Petitioner: Jeanne-Marie Williams For Respondent: Miner Kennedy, appearing pro se, and Valienne Roussel, appearing pro se
Unpublished Opinion
For Petitioner: Jeanne-Marie Williams
For Respondent: Miner Kennedy, appearing pro se, and Valienne Roussel, appearing pro se
Jack Stoller, J.
Turin Housing Development Fund Corporation, the petitioner in this proceeding ("Petitioner"), commenced this summary proceeding by a petition verified in January of 2020 against Miner Kennedy, as administrator for the estate of Mary Lee Mayo ("Respondent"), a respondent in this proceeding, and Valienne Roussel, as administrator for the estate of Mary Lee Mayo ("Co-Respondent"), another respondent in this proceeding (collectively, "Respondents"), seeking a money judgment and possession of 609 Columbus Avenue, Apt. 18N, New York, New York ("the subject premises") on the basis of nonpayment of rent. Respondents interposed an answer that admitted that Mary Lee Mayo ("Decedent") was a shareholder in the cooperative that comprises Petitioner and interposed defenses of constructive eviction due to an illegal lockout and laches and a counterclaim of conversion. The Court held a trial of this matter on June 23, 2023, July 19, 2023, and August 24, 2023.
The trial record
Petitioner proved that it is a proper party to commence this proceeding; that it is in compliance with the registration requirements of MDL §325; that Petitioner is a Housing Development Fund Corporation ("HDFC") formed pursuant to Article XI of the Private Housing Finance Law; that the Surrogate's Court appointed Respondents as the administrators for the Decedent by letters issued on July 11, 2019; that Decedent died on September 5, 2014; that there were rent arrears; and that Petitioner demanded payment of rent prior to the commencement of this proceeding.
Petitioner submitted into evidence a rent roll from November 30, 2013 showing that the maintenance for the subject premises was $647.68. Petitioner submitted into evidence minutes from a meeting of Petitioner's board of May 22, 2014 that increased the monthly maintenance by eight percent. An eight percent increase over $647.68 totals $699.49. Petitioner submitted into evidence a rent breakdown showing arrears through June of 2023 that shows that no rent was owed as of May 31, 2014.
Petitioner's rent breakdown shows that after May 31, 2014, Petitioner received the following payments for the subject premises: $699.49 in October of 2019 and July of 2020, $1,600 in November 2019, $850.32 in December of 2019, $800.32 for each month from January through June of 2020 and again from August of 2020 through January of 2021, $874.28 in February of 2021, $848.45 in March of 2021, $849.28 for May and June of 2021, $855.12 in July of 2021, $1,698.56 in September of 2021, and $885.12 for each month from October of 2021 through June of 2023.
Petitioner submitted into evidence proof of three prior nonpayment proceedings it had commenced concerning the subject premises, one with an index number of 58499/2015, one with an index number of 63545/2015, and one with an index number of 78470/2017. None of these proceedings resulted in a judgment.
Co-Respondent testified that she lives in New Jersey and that there was a difference between what Respondent sued for in 2017 and in 2020. Co-Respondent submitted into evidence a rent breakdown showing that the maintenance for the subject premises in June and July of 2013 was $647; a receipt from Petitioner for payment of $885.12; and an email dated May 31, 2020 from Co-Respondent where she said that they gained access to the subject premises, where she said that that Petitioner refused to approve contractors to make the necessary repairs, and where she said that this is another example of the Petitioner preventing them from having entrée to the subject premises. Co-Respondent submitted into evidence violations of the New York City Housing Maintenance Code placed by the Department of Housing Preservation and Development of the City of New York ("HPD"); photographs of a door; an affidavit of service from one of the prior nonpayment proceedings; and a notarized letter from Decedent's oldest daughter dated September 28, 2014 authorizing Respondent to enter the subject premises.
Co-Respondent testified that someone from Petitioner's management told them during the time that they tried to enter the subject premises that Decedent had died and that they needed to sell the subject premises; that she said that Petitioner has the subject premises in a litigation hold that prevented them from selling the subject premises; that when they asked when can they get entry, there was always non-compliance; that they never were able to enter the subject premises until 2019; that they did not get entry into the subject premises until they were escorted by a maintenance worker; and that they were not given a key until August of 2019. Co-Respondent submitted into evidence a bill dated February 1, 2020 to Decedent for $100.25.
Co-Respondent testified that they reached out to Petitioner and asked about making repairs; that Petitioner said that they needed an estimate; that they did not get a response from Petitioner; and that the building manager said that the attorney had to approve it. Co-Respondent submitted into evidence an estimate dated November 26, 2019 that Respondents emailed to Petitioner. Co-Respondent testified that when they came to the subject premises the first time, they had a key; that the second time, they could not enter the subject premises unless they got a certified letter from Decedent's oldest daughter; and that when a tenant goes away, they have to notify Petitioner.
Co-Respondent testified on cross-examination that she knew Decedent since she was a child; that she is not related by blood or marriage to Decedent; and that she never said that she was Decedent's granddaughter. Petitioner submitted into evidence an affidavit Co-Respondent executed in this proceeding where she avers that Decedent was her grandmother. Co-Respondent testified on cross-examination that she did not review the affidavit word for word; that her attorney just told her to sign it; and that she did not submit a request for the shares to change from Decedent to the estate. Petitioner submitted into evidence an application according to which Co-Respondent signed an application to Petitioner saying that she is a grandchild of the Decedent.
Co-Respondent testified on cross-examination that Decedent was living in South Carolina at the time of Decedent's death; that no one was living in the subject premises at the time of Decedent's death; that Decedent died in September of 2014; that she could not enter the subject premises around that time; that she was not aware of the value of the shares in 2017; that she is not aware that Petitioner authorized sales for larger amounts; that she only came to know about that when she got an email from her prior attorney in Supreme Court litigation; that she got an email from Petitioner's counsel; that she asked what the actual value was; that Petitioner said to reach out to HPD; that someone from HPD said she did not know what the figure would be; that the subject premises is worth more than $60,000; and that in 2019 when they retained counsel she knew that the subject premises was worth more than $60,000.
Carolyn Brown ("the Board Member") testified on Co-Respondents' case that she was a board member from 2014 to 2018; that management brings issues to the board's attention; that there are discussions in board meetings about which apartments are not occupied or in need of repair; that the board deals with that by delegating to management; that they talk about arrears at the meetings; that shareholders do not have to let management know if they are going away for a short period of time; that the apartments are supposed to be a primary residence of the shareholders; and that residents have to provide a copy of a key in case of an emergency.
The Board Member testified on cross-examination on Respondent's case that the building in which the subject premises is located ("the Building") is a low-income cooperative and all of the shareholders are low-income.
Respondent chose not to testify, but when he noted his appearance at trial, he stated that he lives in South Carolina and, in fact, Respondent requested accommodations to appear at trial virtually from his home in South Carolina.
Discussion
A proprietary lease, which Petitioner submitted into evidence, is no different from any other type of lease, State Tax Com. v. Shor, 53 A.D.2d 814, 815 (1st Dept. 1976), and therefore a proprietary lease creates a landlord-tenant relationship between the shareholder and the cooperative corporation. Suarez v. Rivercross Tenants' Corp., 107 Misc.2d 135, 137 (App. Term 1st Dept. 1981), Michel v. 14 Beekman Place Corp., 2016 NY Slip Op. 31001(U), ¶ 5 (S.Ct. NY Co.)(Kern, J.). Accordingly, a cooperative can sue a shareholder for nonpayment of maintenance pursuant to RPAPL §711(2). Earl W. Jimerson Housing Co. v. Butler, 102 Misc.2d 423, 424 (App. Term 2nd Dept. 1979), 1990 Seventh Ave. Co-operative Corp. v. Edwards, 133 Misc. 831 (App. Term 1st Dept. 1929). Decedent's death did not terminate her proprietary lease, but rather caused the leasehold interest to pass as personal property to her estate, which remained liable for payment of rent. Joint Props. Owners, Inc. v. Deri, 113 A.D.2d 691, 693-94 (1st Dept. 1986).
As the evidence at trial showed that there are no occupants of the subject premises, in their personal capacity or otherwise, the specialized provisions of RPAPL §711(2) concerning a nonpayment proceeding against a deceased tenant do not apply.
The proprietary lease in this matter is a valid contract even though it does not state an amount of monthly maintenance. Kenneth D. Laub & Co. v. Bear Stearns Cos., 262 A.D.2d 36 (1st Dept. 1999). A cooperative seeking a judgment for nonpayment of maintenance may prove the amount of monthly maintenance by evidence such as the rent roll and board minutes submitted into evidence. Cf. 1045 Anderson Ave. HDFC v. Mack, 3 Misc.3d 1109 (A)(Civ. Ct. Bronx Co. 2004)(Gonzalez, J.).
Based on a monthly maintenance of $699.49, Respondents' aggregate rent liability from June of 2014 through June of 2023 is $75,544.92. During this time period, Petitioner's rent breakdown credits payments totaling $27,394.19. Crediting the payments against Respondents' aggregate rent liability leaves a balance of $48,150.73. Petitioner has therefore proven as a prima facie matter an entitlement to a judgment in the amount of $48,150.73.
Respondents raised a laches defense. Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. Mundel v. Harris, 199 A.D.3d 814, 815 (2nd Dept. 2021), Reif v. Nagy, 175 A.D.3d 107, 130 (1st Dept. 2019). The first element of laches, delay, is apparent as the arrears started to accumulate in June of 2014 and Petitioner commenced this proceeding in January of 2020, five-and-a-half years later.
In those intervening five-and-a-half years, however, Petitioner commenced three nonpayment proceedings concerning the subject premises, which diminishes the prejudice to Respondents insofar as the pendency of those proceedings put Respondents on notice of Petitioner's claims. See 14 Morningside Ave HDFC v. Murray, N.Y.L.J. April 23, 2002 at 18:1 (App. Term 1st Dept.), R.M.H. Estates v. Hampshire, 13 Misc.3d 1222 (A)(Civ. Ct. NY Co. 2006).
The particular circumstances of the intervening five-and-a-half years further diminish the saliency of Petitioner's delay. Decedent died on September 5, 2014. Letters appointing Respondents as administrators did not issue until July 11, 2019. Petitioner could not commence a proceeding against Decedent's estate, as an estate is not a legal entity. Visutton Assocs. v. Fastman, 44 Misc.3d 56, 58 (App. Term 2nd Dept. 2014). Instead, Petitioner would have had to have commenced a proceeding against administrators of Decedent's estate. Id. Respondents did not apparently take action get themselves appointed as administrators until four years and ten months after Decedent's passing. While, in theory, Petitioner itself could have petitioned Surrogate's Court as a creditor of Decedent's estate for the appointment of an administrator, SCPA §1002(1), Petitioner would have had to have served, inter alia, all of Decedent's presumptive distributees. SCPA §1003(1). Intuitively, family members like Respondent or close family friends like Co-Respondent would be better-positioned than a cooperative of a deceased shareholder to know the identities of family members who might be entitled to intestate succession. No evidence at trial proved otherwise. As laches is an equitable doctrine, People v. Alvarez, 33 N.Y.3d 286, 295 (2019), the time that Respondents took to get themselves appointed as administrators must therefore figure into the balancing of interests between the parties.
Significantly, Petitioner would still be entitled to a money judgment for the stale arrears even if Respondents prevailed in their laches defense. 1560-80 Pelham Pkwy. Assocs. v. Errico, 177 Misc.2d 947, 948 (App. Term 1st Dept. 1998). If the severance of the stale arrears from the timely arrears would prevent an eviction, a laches defense would have tangible consequences that would weigh in a balancing of the equities. But neither of Respondents have ever lived in the subject premises. Their only expressed intention regarding the shares to the subject premises was to sell them. As Petitioner would be able to recover a non-possessory judgment as well as a possessory judgment from the proceeds of a sale of the shares, the successful interposition of a laches defense would serve no purpose. Accordingly, it is ordered that the Court dismisses Respondents' laches defense.
Respondents raised a defense of constructive eviction. The preponderance of the evidence shows that Petitioner did not give Respondents a key to the subject premises until August of 2019. However, a constructive eviction defense presumes the existence of a landlord/ tenant relationship. Board of Mgrs. of Brightwater Towers Condominium v. Cheskiy, 109 A.D.3d 944, 945-46 (2nd Dept. 2013), Katz v. Board of Mgrs., 83 A.D.3d 501, 502 (1st Dept. 2011). Respondents were not appointed as administrators of Decedent's estate until July of 2019.
While a representative of an estate may occupy the leased premises of a deceased tenant, that occupancy is solely in the capacity as a representative of the deceased tenant's estate. Jackson v. Kessner, 206 A.D.2d 123, 127-28 (1st Dept. 1994). Logically, then, if someone is not a representative of an estate, there is no discernible capacity according to which such a person is entitled to possession of the leased premises. Cf. Herson v. Marzullo, 72 Misc.3d 132 (A)(App. Term 2nd Dept. 2021)(there was no contractual landlord/tenant relationship between a tenant and a daughter of a deceased landlord when no representative had been appointed for the estate of the deceased landlord). As Respondents did not obtain the status of representatives of the estate until July of 2019, their constructive eviction defense up to that point therefore does not lie. Moreover, given that Respondent lives in South Carolina and Co-Respondent lives in New Jersey, the preponderance of the evidence is insufficient to show what happened in the month in between the issuance of the letters of administration and Petitioner that would rise to the level of constructive eviction.
Even if a representative of an estate is entitled to possession as such, that occupancy is not in the representative's individual capacity. Stallsworth v. Stallsworth, 138 A.D.3d 1102, 1103 (2nd Dept. 2016), Joint Props. Owners, Inc., supra, 113 A.D.2d at 695. See 167 W. 80th St., LLC v. Yoder, 30 Misc.3d 129 (A)(App. Term 1st Dept. 2010)(a representative of an estate who placed himself individually in possession without the landlord's consent violated a substantial obligation of the estate's tenancy).
To the extent that the Court can infer that a constructive eviction defense encompasses a defense of breach of the warranty of habitability as well, an inference that Respondents appeared to encourage by their submission of housing code violations, similar logic applies. Only a tenant of record is entitled to a rent abatement. Bandler v. Battery Park Mgt. Co., 10 Misc.3d 133 (A) (App. Term 1st Dept. 2005). Be that as it may, some of the violations post-date the issuance of letters of administration, putting into play Respondents' out-of-state residence. Tenants who do not reside leased premises cannot obtain a rent abatement. Andreas v. 186 Tenants Corp., 208 A.D.3d 406, 408 (1st Dept. 2022), leave to appeal dismissed, 39 N.Y.3d 1099 (2023).
Respondents raised a counterclaim in conversion. Conversion is a tort. Family Health Mgt. LLC v. Rohan Devs. LLC, 207 A.D.3d 136, 141 (1st Dept. 2022). Housing Court does not have subject matter jurisdiction over torts. See Grant Forbell, L.P. v. Macias, 21 Misc.3d 133 (A) (App. Term 2nd Dept. 2008). Accordingly, it is ordered that the Court dismisses Respondents' defenses and counterclaims, although the dismissal of Respondents' counterclaim of conversion is without prejudice to such a cause of action in the appropriate forum, and without prejudice to Petitioner's defenses.
The Court may raise issues of subject matter jurisdiction sua sponte. In re Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Brotherhood of Carpenters & Joiners, 72 N.Y.2d 307, 311 (1988), Roberts v. State, 4 Misc.3d 768, 773 (Ct. Cl. 2004).
Accordingly, it is ordered that the Court awards Petitioner a final judgment in the amount of $48,150.73. Issuance of the warrant of eviction is stayed through September 19, 2023 for Respondents to pay Petitioner $48,150.73. On timely payment, issuance of the warrant of eviction shall be permanently stayed. On default, the warrant of eviction may issue.
This constitutes the decision and order of the Court.