1605 Realty Corp. v. Cataquet

• Decision Date: 08 March 2017
• Docket Number: No. 46312/16.,46312/16.
• Citation: 55 N.Y.S.3d 693 (Table)
• Parties: 1605 REALTY CORP., Petitioner, v. Carmen CATAQUET, Respondent–Tenant, "John Doe" & "Jane Doe", Respondents–Unknown Occupants.
• Court: New York Civil Court

55 N.Y.S.3d 693 (Table)

1605 REALTY CORP., Petitioner,

v.Carmen CATAQUET, Respondent–Tenant, "John Doe" & "Jane Doe", Respondents–Unknown Occupants.

No. 46312/16.

Civil Court, City of New York.

March 8, 2017.

Mark H. Cohen & Associates PC, Bronx, attorney for petitioner.

Boris Yankovich, Esq., The Legal Aid Society/Civil Practice—Housing Help Program, Bronx, attorney for respondent.

DIANE E. LUTWAK, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss:

Papers	Numbered
Notice of Motion, Affirmation, Affidavit & Exhibits A–N	1
Respondent's Memorandum of Law	2
Petitioner's Affirmation, Affidavit & Exhibit A in Opposition	3
Respondent's Reply Affirmation & Exhibits A–C	4

Upon the foregoing papers and for the following reasons, the motion to dismiss filed by Respondent-tenant Carmen Cataquet is decided as follows.

PROCEDURAL & FACTUAL BACKGROUND

In this holdover eviction proceeding, the Petitioner-landlord 1605 Realty Corp. seeks to recover possession of Apartment 5 at 1605 Walton Avenue in the Bronx from the Rent Stabilized Respondent-tenant Carmen Cataquet. The Petition alleges that Petitioner terminated Respondent's tenancy pursuant to Section 2524.3(a) of the New York City Rent Stabilization Code (RSC) based upon her "willful, repeated, and chronic nonpayment and late payment of rent" (Petition at 2nd ¶ # 1¹ ). Petitioner asserts that it commenced "at least 3 nonpayment proceedings" against Respondent under index numbers 26538/2013, 26217/2014 and 47535/2015. (Id. )

The Petition is predicated on a "Fifteen (15) Day Notice of Termination" dated July 13, 2016, a copy of which is annexed to the Petition and incorporated therein by reference (Petition at ¶ 10), which notified the tenant that the basis for the proceeding was her "willful, repeated, and chronic nonpayment and late payment of rent" pursuant to RSC § 2524.3(b). The Notice alleges that Petitioner commenced "numerous court proceedings" against Respondent for nonpayment of rent in which she "failed to interpose any defense" and that the court entered "numerous judgments" in favor of Petitioner. The Notice further states that Petitioner was "forced to commence at least 3 nonpayment proceedings against you in the last 4 years" and refers to the same three index numbers cited in the Petition: 26538/2013, 26217/2014 and 47535/2015.

Respondent, represented by counsel, moves to dismiss under CPLR 3211(a)(7) based on failure to state a cause of action. Respondent argues that the three nonpayment proceedings referenced in Petitioner's papers are insufficient to establish grounds for eviction due to chronic rent delinquency:

• The first, L & T # 26538/2013, does not involve the parties to this proceeding and bears the caption "Robert C. Leupp as Trustee v. Eileen C. Fox ". A copy of the case summary from the court system's data base is attached to Respondent's moving papers as Exhibit D.

• The second, L & T # 26217/2014, is one in which the court file reflects that Respondent had a significant defense of breach of the warranty of habitability, which she raised in her Answer (dated May 19, 2014, copy attached to moving papers as Exhibit F) and which was thereafter addressed in three Stipulations of Settlement (dated May 22, 2014, August 8, 2014 and April 13, 2015, copies attached to moving papers as Exhibits G, J and M, respectively) which contained access dates for Petitioner to inspect and repair a list of conditions² , most of which persisted throughout the pendency of the case.

• The third, L & T # 47535/2015, was abandoned by Petitioner after it was filed, with no court appearances and no judgment and warrant. Copies of the Notice of Petition and Petition, dated August 5, 2015, are attached to the moving papers as Exhibit N.

In the alternative, Respondent requests permission under CPLR 3012(d) to submit a late answer.

Petitioner opposes, arguing that it did adequately plead its cause of action for chronic rent delinquency based on the three nonpayment proceedings which it had to commence against Respondent since 2013:

• The first, L & T # 26538/2013, was misidentified in Petitioner's predicate notice and Petition due to an "unintentional typographical error" and the correct index number is L & T # 2638/2013. (Affirmation in Opposition at ¶ 8.) Petitioner does not include copies of any of the documents from that case, but alleges that it lasted for five months, resulted in the issuance of a final judgment and warrant of eviction, included four court appearances and was discontinued at the last court appearance when the arrears were paid in court by the City's Department of Social Services ("DSS"). Petitioner does not mention whether Respondent raised any defenses to that proceeding.

• The second, L & T # 26217/2014, lasted for twelve months, resulted in the issuance of a final judgment and warrant, included seven court appearances and was discontinued after DSS paid the arrears.

• The third, which Petitioner now asserts³ was assigned L & T # 33767/2015 (not L & T # 47535/2015 as stated in the Petition and termination notice), was initiated in early June 2015 because, as per Petitioner's rent breakdown (Exhibit A to Petitioner's opposition papers), Respondent owed $1293 on June 1, which was more than a month's rent ($1077.50). However, as per Petitioner's managing agent, "Respondent never answered and a judgment was issued upon the Respondent's default. Before the warrant of eviction could issue the arrears were paid in full by DSS. For that reason, I had my attorneys discontinue that case." (Affidavit in Opposition at ¶¶ 5–7.) Petitioner does not include copies of any of the papers from this proceeding, although Petitioner's rent breakdown confirms that Respondent owed $1293 on June 1, 2015 and then had a zero balance as of June 29, 2015.

Further, Petitioner alleges that Respondent has not paid any rent since June 2016 and, as of February 2017, owed $11,448.02.

ADDITIONAL INFORMATION

Because of the various discrepancies regarding the index numbers of—and activity in—the first and third of the three nonpayment proceedings upon which Petitioner bases this case, the court has examined the information available on the court's data base and discovered the following:

• Regarding the first nonpayment proceeding, as stated above, Petitioner's attorney affirms that, due to "an unintentional typographical error", Petitioner incorrectly referenced the index number in the Notice of Termination and Petition as "26358/13" instead of "2638/13". (Affirmation in Opposition at ¶ 8.) The court's database shows, however, that the case assigned to index number LT–2638–13/BX, like the one assigned to LT–26358–13/BX, is irrelevant to this proceeding. It does not involve either Petitioner or Respondent and bears the caption "Tilden Towers Housing Co. Section II, Inc. v. Harold Payne, Jr. "

• Regarding the third nonpayment proceeding, while Petitioner's opposition papers do not make the same claim of "an unintentional typographical error", for reasons that it does not explain Petitioner discusses the case by reference to index number "33767/15", not "47535/15" as stated in the Notice of Termination and Petition. Petitioner's managing agent alleges that "Respondent never answered and a judgment was issued upon the Respondent's default." Affidavit in Opposition at ¶ 5. Further, because the arrears were paid before the warrant of eviction issued, "For that reason I had my attorneys discontinue the case." Id. at ¶¶ 5–6. However, the court's database shows that the case assigned to index number LT–33767–15/BX does not involve either of the parties to this proceeding and bears the caption "2427 Webster Realty LLC v. Martina Perez ".⁴

Further, in the case assigned index number LT–47535–15/BX, as correctly described by Respondent's attorney, there was no activity after the case was filed.

DISCUSSION

Section 2524.3 of the New York City Rent Stabilization Code ("RSC") is entitled "Proceedings for eviction—wrongful acts of tenant". This section of the Code authorizes a landlord to bring a holdover eviction proceeding against a Rent Stabilized tenant, after service of the predicate notice required by RSC § 2524.2, who is alleged to have committed one or more of the wrongful acts listed in subsections (a) through (h). See, generally, Domen Holding Co v. Aranovich (1 NY3d 117, 123, 802 N.E.2d 135, 138, 769 N.Y.S.2d 785, 788 [2003] ). The subsections that are relevant herein are subsections (a) and (b): Petitioner exclusively references subsection (a) in its Petition (in the second ¶ 1⁵ ) and exclusively references subsection (b) in the first paragraph of its termination notice.

Subsection (a) covers violations of a substantial obligation of the tenancy which includes, "A history of repeated nonpayment proceedings brought to collect chronically late rental payments." Adam's Tower Ltd Partnership v. Richter (186 Misc.2d 620, 717 N.Y.S.2d 825 [App Term 1st Dep't 2000] ) (granting summary judgment to landlord where the uncontradicted evidence established that "after years of consistently late payments, landlord was required to commence nine nonpayment proceedings" during a period of three years and four months and there was "no suggestion that rent was withheld because of uninhabitable conditions" but rather the tenants acknowledged that "they have experienced financial difficulties attributable to expenses occasioned by their son's medical condition"). Compare Chama Holding Corp v. Taylor (37 Misc.3d 70, 955 N.Y.S.2d 464 [App Term 1st Dep't 2012] ) (affirming lower court's holding that landlord failed to establish "a pattern of unjustified rent defaults" sufficient to constitute a violation of a substantial obligation of the tenancy under RSC § 2524.3[a] where, of the four proceedings commenced in a two-year period, two "were shown to have arisen from legitimate disputes as to the propriety of the monthly rent sought by landlord and the existence of rent...