170 N.Y. Properties LLC v. Boynton, 2008 NY Slip Op 30798(U) (N.Y. Civ. Ct. 3/21/2008), 0069939/2007.
| Decision Date | 21 March 2008 |
| Docket Number | 0069939/2007. |
| Citation | 2008 NY Slip Op 30798 |
| Parties | 170 N.Y. PROPERTIES LLC, Petitioner-Landlord, v. KIMBERLY BOYNTON, Respondent-Tenant. |
| Court | New York Civil Court |
SCOTT D. GROSS, Mineola, New York, Attorney for Petitioner.
JOAN L. BERANBAUM, By: Barbara A. Cass, Of Counsel, DC 37 MUNICPAL EMPLOYEES LEGAL SERVICES, New York, N.Y., Attorneys for Respondent.
DECISION & ORDER
The underlying summary holdover proceeding was commenced by 170 N.Y. PROPERTIES LLC, ("Petitioner") against KIMBERLY BOYNTON ("Respondent") the tenant of record of Apartment 27 at 170 New York Avenue, Brooklyn, New York, 11216 ("Subject Premises"). The Subject Premises is governed by Rent Control, and this chronic non-Payment holdover proceeding was commenced, based on the allegation that Respondent had breached a substantial obligation of her tenancy, by repeatedly failing to pay rent on a timely basis.
Respondent's tenancy was terminated by Petitioner on or about March 16, 2007 by a Thirty Day Notice of Termination. The proceeding was commenced on or about May 3, 2007, by service of a Notice of Petition and Petition. Respondent appeared in the proceeding through counsel, and asserted an answer and counterclaim to the Petition. On or about July 20, 2007 Judge Lansden issued an order striking Respondent's third, fourth and fifth affirmative defenses and setting the matter down for a traverse hearing. The proceeding was scheduled for traverse and trial on July 23, 2007.
On July 23, 2007, the parties entered into a stipulation of settlement ("Stipulation") resolving the proceeding. The Stipulation provided that Respondent was on probation for twenty-four months, from August 2007 through July 2009. During said period, Respondent agreed she would pay her rent, so that Petitioner received the payment no later than the tenth of each month. Under the terms, Respondent would be excused from three rental defaults only. In the event of a fourth default, Respondent would be in breach of its obligations under the Stipulation. Paragraph "5" of the Stipulation provides:
If Petitioner believes there is a breach & it is found by the court or conceded that there is a breach by Resp., Petitioner shall be entitled to a possessory judgment, money judgment & issuance of a warrant of eviction. Relief is to be obtained by motion.
(a) If such an application for a judgment and a warrant is made, & the Respondent has utilized her permissible default, she will be entitled to a six month stay to vacate the subject premises provided use and occupancy is paid.
On or about January 11, 2008, Petitioner moved to enforce the Stipulation alleging that four defaults had occurred, since the Stipulation had been so-ordered by the Court. Respondent opposes said motion, and cross-moves pursuant to CPLR § 2201 for a stay of the execution of any warrant issued by the Court. The motion and cross-motion are consolidated herein for disposition.
The essential facts regarding the four defaults under the Stipulation are not in dispute.1 From October 2007 through January 2008 for four consecutive months Respondent failed to tender the required rent payment so that it was received by Petitioner by the 10th of the month as required by the stipulation. The details of the each of the defaults are set forth below.
On or about October 2007, Respondent tendered a post dated personal check for October rent. The check was dated October 18, 2007, and accompanied by a note, which requested the check be deposited on October 18, 2007 or thereafter.
The following month Respondent once again submitted a post dated check dated November 15, 2007, with a note asking that the check not be deposited before November 15, 2007.
The following month Respondent again submitted a post-dated check for December rent. The check was dated December 14, 2007, and when the landlord deposited it on said date it bounced.
Respondent failed to pay rent for January 2008 on or before January 10th, 2008, and the following day Petitioner made the instant motion on the basis that said failure constituted Respondent's fourth consecutive default under the terms of the stipulation. Respondent paid rent for December and January by a bank check, which was not purchased until on or about January 26, 2008.
Respondent does not dispute that the above constituted defaults under the stipulation. Rather, Respondent argues that the motion should be denied because the defaults were de minimus, and did not substantially prejudice the Petitioner. Respondent argues that remedy is too harsh given the nature of the default.
Alternatively, Respondent argues that should the Court grant Petitioner's motion, it should also grant Respondent's cross-motion for a stay ("Sofizade Stay") pursuant to CPLR 2201 and 326-330 East 35th Street Assoc. v. Sofizade, 191 Misc.2d 329 (App. Term, 2002).
It is clear, based upon the undisputed facts recited above, that Respondent has defaulted on the Stipulation, by failing to pay her rent for the months of October 2007 through January 2008, so that Petitioner received the rent on or before the 10th of each of month. Stipulations of settlement are contracts and are subject to the principles of contract construction. Aivaliotis v. Continental Broker-Dealer Corp., 35 A.D.3d 153 (1st Dept., 2006).
The underlying proceeding was predicated on the allegation that Respondent had failed to timely pay rent. The proceeding was settled by agreeing that the failure to pay Petitioner by the 10th of any month was a default. Because the essential obligation of Respondent was to pay on time, a late payment not a de minimus default, but rather a default that goes to the heart of Respondent's obligation of under the Stipulation.
"A covenant to pay rent at a specified time ... is an essential part of the bargain as it represents the consideration to be received for permitting the tenant to remain in possession of the property of the landlord." Fifty States Mgt. v. Pioneer Auto Parks, 46 N.Y.2d 573, 575 (1979). Repeated breaches of the covenant to timely pay are not de minimus, but are breaches of a material term of the contract. Cyber Land Inc. v. Chon Property Corporation, 36 A.D.3d 748 (2nd Dept., 2007).
The Stipulation was entered under advice of counsel, and so-ordered by the Court. The Stipulation expressly provided that if Respondent breached the terms, Petitioner would be entitled to the entry of a judgment of possession, after moving for said relief. Such language has been held to be unambiguous, and subject to enforcement without extrinsic evidence of the parties' intent. 64th Street — 3rd Ave. Ass. v. Wall, 257 A.D.2d 487 (1st Dept., 1999).
Appellate Courts have held that it is an abuse of discretion, when trial courts excused late payments in a chronic non-payment holdover proceeding, if the stipulation clearly provided that a breach would entitle the landlord to an eviction.
For example, in Kalimian v. Cutarella, NYLJ May 23, 3003 (App. Term, 1st Dept.), the Appellate Term held that where the stipulation provided that two late payments during a twelve month period would entitle landlord to execute on the warrant of eviction, the language was unambiguous and required that the stipulation be enforced according to its terms. The Appellate Term reversed the lower court's finding that the breach was de minimis, and noted that the tenant's excuse of the late payment was "insufficient cause to warrant relief from the stipulations provisions". Kalimian v. Cutarella, Supra, citing Hallock v. State of New York, 64 N.Y.2d 224; see also M&B Lincoln Realty Corp. v. Lubrun, 4 Misc.3d 129 (A) (App. Term, 2nd Dept., 2004); M.F. Realty v. Santini, NYLJ, July 15, 2003 (App. Term, 1st Dept.) ().
The cases cited above do differ from the case at bar in that the stipulations settling those proceedings, provided for the entry of a judgment and the issuance of a warrant of eviction. The stipulation herein did not provide for said relief until the breach occurred. However, neither party addresses this issue in their papers and the cases do not indicate that a different result is warranted.
In this case, the first three defaults wherein Respondent submitted post-dated checks, were intentional and willful. Respondent knew that payment was to be received by Petitioner no later than the tenth of the month. By delivering checks that were post dated, Respondent was not making payment, but essentially was offering a promise of payment at a later date. This was not an agreed upon term of the Stipulation.
Respondent's explanation for the first two defaults, namely that she could not afford to timely comply with the Stipulation, because as a Board of Education employee she received no pay between from September through Mid-October, is insufficient cause to warrant relief from the provisions of the stipulation. Respondent executed the Stipulation with full knowledge that she would be receiving no paycheck for said period.
Respondent offers no explanation as to why she submitted a post dated check in December, since presumably the "back ups in pay" alluded to for September through Mid-October were no longer...
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