176 East 123rd St. Corp. v. Flores

• Decision Date: 16 November 1970
• Citation: 317 N.Y.S.2d 150,65 Misc.2d 130
• Parties: rd STREET CORP. v. Gladys FLORES et al.
• Court: New York City Court

Page 150

317 N.Y.S.2d 150

65 Misc.2d 130

176 EAST 123rd STREET CORP. v. Gladys FLORES et al.

Civil Court of the City of New York.

Nov. 16, 1970.

Mark G. Fresco, New York City, for petitioner.

Shyleur Barrack, New York City, John Cataldo, of counsel, for respondents.

MARTIN B. STECHER, Judge.

This is a motion to direct the clerk of this court to restore to the moving parties, the tenants in these proceedings, rents previously deposited by them under an order made by me pursuant to Section 755, R.P.A.P.L. ¹ In the 40 year history of this statute ² no similar motion had been recorded in any reported case.

On July 30, 1969, the tenants, upon the admissions and stipulations of the landlord, effectively established their defense under that statute to the landlord's summary proceedings for the non-payment of rent. Indeed the stipulation was surplusage, the record of the New York Department of Housing and Building ³ providing more than adequate evidence of a deplorable slum. ⁴

The orders entered by consent of the parties directed the payment of accrued and future rentals to the clerk of the court and permitted half of such deposit to be used to correct the offending conditions. Except for the last month in which the respective moving parties resided in the building--in some cases October 1969, in others November of 1969--the orders to deposit rents were obeyed. To the date of this opinion no application has been made by the landlord to use any of the rents on deposit with the court although the stipulation and the statute (Section 755, subd. 3, R.P.A.P.L.) provide ample authority for such use.

A hearing was held following the submission of the motion (C.P.L.R. 2218) and thereafter the tenants with the landlord's consent submitted in evidence a reinspection report made by the Department of Buildings of the City of New York. It revealed that approximately 20 new violations had been recorded in addition to the 100 or so which existed at the time of trial; that many of the apartments in the building had become and remained vacant; and that some 22 prior violations had been removed in part resulting from the replacement by the landlord of a missing oil burner unit.

Despite the landlord's efforts, these tenants in decent respect for the quality of their own lives and those of their families abandoned this rotting East Harlem Tenement ⁵ and now asks the Court to restore to them the rents it holds on deposit.

At the hearing the landlord--which offered neither testimony nor evidence of any kind--moved that the stay be vacated and that the deposited rents be turned over to it on the grounds that the tenants failed to deposit additional rent for the final months of their respective occupancies (Section 755, subd. 1, R.P.A.P.L.).

On this record the Court has three choices: to release the fund to the landlord, restore it to the tenants or maintain it in the possession of the clerk.

In the normal course of events the landlord would not receive the funds until the conditions constituting a 'constructive eviction'--whether existing at the time of trial or noted thereafter--were cured (Brisset v. Cherry, 54 Misc.2d 353, 355, 282 N.Y.S.2d 562, 564). To deliver the deposited rents to the landlord now would encourage other landlords in similar position to do nothing to eliminate hazards to life and health. The Court would be reduced to the role of rent collector (Cf. Matter of Schaeffer v. Montes, 37 Misc.2d 722, 730, 233 N.Y.S.2d 444, 452) and when, as here, the conditions of life became intolerable and tenants could do nothing but leave, the landlord at his leisure would pick up his accrued, collected rents. Neither the court nor the statute was created for that purpose. The landlord's motion is denied.

The Legal Aid Society appearing for the tenants urges restoration of the rents to the tenants on the theory of Common Law constructive eviction. It argues that the courts of this state have been in error these many years in holding that the doctrine is inapplicable as a defense to an action for rent if the tenant retains possession of the premises (Boreel v. Lawton, 90 N.Y. 293; Edgerton v. Paige, 20 N.Y. 281). Error by some standard it may be but the 'error' of the Court of Appeals is the law of the Civil Court. The archaic rent-in-exchange-for-possession doctrine ⁶ is still the law of the State of New York (Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707), absent any statute to the contrary.

There are, of course, many statutes to the contrary in the crazy-quilt pattern of New York Legislative enactments permitting tenants to occupy premises paying no rent or less than the sum to which they had agreed. Thus for instance, had these tenants been a bit poorer or a bit less proud and therefore welfare recipients (Social Services Law, Section 143--b); or had they effectively pleaded and proved that the violations were 'rent impairing' (Multiple Dwelling Law, Section 302--a); or had the Department of Buildings revoked the certificate of occupancy (Multiple Dwelling Law, Sections 301, 302); or had the Department found that a public nuisance existed (Multiple Dwelling Law, Section 309); or had there been an administrative determination that a dangerous condition existed (Administrative Code of the City of New York, Sec. Y51--5.0(h)(2); Unconsolidated Laws Sec. 8584, subd. 5(c); Rent, Eviction and Rehabilitation Regulations, Sec. 34, subd. 3), the objective of the tenants--occupying the premises at reduced rentals or no rentals at all--might have been accomplished, because the respective statutes so provide. But RPAPL Sec. 755 does not so provide; it is silent on the subject.

Recourse to the bill jacket assembled in the office of Governor Franklin D. Roosevelt yields a clew to the intent of the legislature (Shiles v. News Syndicate Co., 27 N.Y.2d 9, 20, 313 N.Y.S.2d 104, 112, 261 N.E.2d 251, 257) when it enacted this bill. Judge--then Assemblyman--Francis E. Rivers, its sponsor, in a memorandum to...