269 Associates v. Yerkes

• Decision Date: 06 April 1982
• Citation: 449 N.Y.S.2d 593,113 Misc.2d 450
• Parties: 269 ASSOCIATES, Petitioner, v. Harvey YERKES, Respondent.
• Court: New York City Court

Page 593

449 N.Y.S.2d 593

113 Misc.2d 450

269 ASSOCIATES, Petitioner, v. Harvey YERKES, Respondent.

Civil Court of the City of New York,

New York County, Housing Court,

Part 49, Motion Calendar.

April 6, 1982.

Gerald P. Halpern, P.C., Mineola, for petitioner.

Norman Siegel, New York City, for respondent; Theodore W. Zeichner, New York City, of counsel.

DAVID B. SAXE, Judge.

How quickly must a landlord act before he loses the right to recover possession of real property through the swift and efficient means of a summary proceeding for the non-payment of rent brought under the Real Property Actions and Proceedings Law?

The respondent, citing Gramford Realty Corp. v. Valentin, 71 Misc.2d 784, 337 N.Y.S.2d 160 (Civil Court, N.Y.Co., 1972) and City of New York v. Betancourt, 79 Misc.2d 907, 362 N.Y.S.2d 728 (App.Term, 1st Dept., 1974) among others, has made a motion to dismiss the non-payment petition for eviction on the ground that the petitioner has allowed twenty-nine (29) months to elapse before instituting this action.

The landlord claims that the delay is due to the fact that the tenant, who was paying a monthly rental of $56.38, refused to allow access to his apartment for the purpose of permitting repairs, while making applications for rent reductions based in part on items allegedly in need of repair. The landlord states that a demand for rent was made of the tenant, from time to time, without success.

The motion to dismiss is denied. The holding in Gramford, supra, is in my opinion without precedent and beyond the power of a court to reach. I decline to follow it except in the most unusual circumstance. The fact that succeeding cases have cited it is only proof that once judicial mischief begins, it proceeds quickly until such time as it ultimately comes to rest in what is termed, a legal principle or rule, the foundation of which is therefore suspect.

In Gramford Realty v. Valentin, supra, the tenants who were not billed for rent for a year, urged that the delay in seeking payment, equitably estopped the landlord from collecting it through summary proceedings. The Court held that the tenants did not establish a defense of equitable estoppel on their claim that the landlord's sloth was calculated to make it impossible for them to remit the amounts alleged to have accumulated as unpaid rent. Nevertheless, the case held that the delay of more than a year in commencing a summary proceeding for nonpayment of rent was excessive and, as a result, the landlord forfeited his right to resort to the use of a summary proceeding. Consequently, the landlord was forced to pursue a plenary action for ejectment.

In arriving at that decision, the Court relied upon two factors. First, the Court stated that by delaying the start of these proceedings, the landlord had perverted the device of summary proceedings, designed to assist landlords in regaining possession, quickly and inexpensively. Second, the Court said that it had the inherent power arising out of its duty to regulate litigation, to prevent "... outrages not even a Judge can ignore."

In effect, the Court in Gramford, supra, created a new rule to operate defensively in a summary proceeding. Simply stated, the rule was: where the tenant could prove no equitable defense in a landlord's delayed summary action to recover rent, a Court could nevertheless dismiss the petition solely because of a finding that the maintenance of the proceeding offended the Court's notion of fairness and justice, although the statute contained no grant of authority to dismiss on these grounds.

Gramford, supra, cited Midman v. Kane, N.Y.L.J., January 20, 1971, p. 19, col. 4 (Civil Court, New York Co.) (n. o. r.) as authority. That case however, involved a tender of rent that was refused by the landlord. The Court inMidman held that an equitable estoppel had therefore been established. Gramford did not even involve a tender of rent. (See generally, Shaw, "Trend Toward Judicial 'Legislation' ". NYLJ, May 10, 1973, p. 4, col. 4; letters of John M. Jokl, Esq., and Daniel L. Greenberg, Esq., NYLJ, May 16, 1973, p. 4, col. 7.

In a later case, City of New York v. Betancourt, 79 Misc.2d 146, 359 N.Y.S.2d 707, affirmed, 79 Misc.2d 907, 362 N.Y.S.2d 728, supra (App.Term, 1st Dept. 1974), the landlord waited in excess of three years before commencing a summary proceeding seeking rent and possession. The Court, not citing Gramford, supra, held that "where a landlord fails for a substantial period of time to avail himself of this added remedy to the detriment of the tenant, he is no longer entitled to summary relief as to the stale claims." The rule established was that a landlord is entitled to a judgment of possession based only upon the non-payment of non-"stale" rent claims.

Under Gramford, supra, I would be obliged to dismiss this summary proceeding in its entirety. Under the Betancourt rule, I could permit the summary proceeding to go forward only as to rent claims that are not "stale" although no guidance is offered for determining what is or is not a "stale" rent claim.

I choose not to follow Gramford, supra, for the reasons stated previously. As for the Betancourt rule, it posits a requirement for the tenant seeking to invoke it, to establish detriment or harm. Succeeding cases have seemingly ignored this requirement and instead have focused upon defining the term "stale."

In Maxwell v. Simons, 77 Misc.2d 184, 353 N.Y.S.2d 589 (Civil Court, Kings Co., 1973), which involved a welfare tenant who lived in a sub-standard building containing numerous housing code violations (see letter of John M. Jokl, Esq., op. cit.), the Court determined that a landlord had a three-month period within which to commence a summary proceeding for non-payment of rent.

The consequence of not doing so was that the rent claimed before the three-month cut-off was deemed a stale claim and could not serve as a predicate for possession. Thus, Maxwell, supra, was an attempt to judicially create a new statute of limitations. For all rent claimed to be due beyond the three-month period immediately preceding the start of the summary proceeding, the landlord was required to sue in an action at law. In other words, Maxwell held that if a landlord waited more than three (3) months before starting a summary proceeding, no matter what the reason, he could obtain a money judgment for all prior rent owed in an action at law, and a possessory judgment and up to three months in arrears in rent based upon the tenant's failure to pay rent during the last three month period.

In Antillean Holding Co. v. Lindley, 76 Misc.2d 1044, 1047, 352 N.Y.S.2d 557 (Civil Court, New York Co., 1973), the Court stated however that "the three month rule should not be an automatic and conclusive bar to landlords further recovery, but merely shifts the burden to him to show reasonable diligence in bringing the proceeding." See also, New Approach Rehab. Corp. v. Purdie, N.Y.L.J., December 29, 1980, p. 13, col. 5 (App.Term, 2nd and 11th Judicial Districts) (n. o. r.).

Thus, under Antillean, supra, if a landlord can establish reasonable diligence or justification for the delay, the three month rule in Maxwell v. Simons, supra, would not apply.

In City of New York v. Romero, N.Y.L.J., November 15, 1973, p. 18, col. 5 (Civil Court, N.Y.Co.) (n. o. r.), the Court, citing Gramford v. Valentin, supra, and Maxwell v. Simons, supra, but not Antillean Holding Co. v. Lindley, supra, held that a 17 month delay indicated a lack of urgency and thereby resulted in a landlord's forfeiture of the right to use a summary proceeding.

A succeeding case, Midtown Properties v. Trebotica, N.Y.L.J., June 25, 1974, p. 15, col. 1 (n. o. r.), treated a landlord's delay (17 months) as a matter of equitable defense, though soon after, in New York City Housing Authority v. Hatzigiannis, N.Y.L.J., December 16, 1974, p. 18, col. 6 (n. o. r.), a two year delay was simply termed "unconscionable" under the authority of the Gramford v. Valentin rule.

Where the delay was reasonable or justifiable, (Antillean Holding Co. v. Lindley, supra ) summary proceedings have been allowed to continue. Therefore, where the landlord was unable to start a nonpayment summary proceeding against the tenant due to a continuing will contest regarding the rights to the premises (Matthews v. Deloach, N.Y.L.J., June 30, 1978, p. 15, col. 2 (App.Term, 2nd and 11th Judicial Districts) (n. o. r.); or because there was a court appointed receiver in control of the premises (Malek v. Cruz, 74 Misc.2d 448, 345 N.Y.S.2d 367 (Civil Court, N.Y.Co., 1973)), (Genuth v. Albino, N.Y.L.J., May 1, 1980, p. 7, col. 1 (App.Term, 1st Dept.)) (n. o. r.); or because there was a holdover proceeding pending between the landlord and tenant (United Artists Corp. v. 731 Seventh Ave. Restaurant, Inc., 75 Misc.2d 717, 348 N.Y.S.2d 277 (Civil Court, N.Y.Co., 1973)); or because the landlord had "no choice but to wait" as a result of governmental regulations, (Colony Gardens, Inc. v. Rossman, N.Y.L.J., October 9, 1974, p. 20, col. 8 (Civil Court, Queens Co.) (n. o. r.), those who commenced summary proceedings for nonpayment of rent shortly after the removal of the disability were held to have established "reasonable diligence" for their delay. This result is correct because a landlord should not be penalized for a delay that was not his fault.

In Mt. Nebo Baptist Church of New York v. Myers, N.Y.L.J., April 10, 1979, p. 10, col. 5 (App.Term 1st Dept.) the Court, noting by implication that mere delay was not sufficient to affect the landlord's right to use summary proceedings, said that a finding of staleness had to be based upon a showing of laches. Mt. Nebo clarified Betancourt, supra, by stating that a demonstration of harm would have to be accomplished through a proof of an equitable defense. The claim would be deemed stale where there was "proof that the petitioner had calculatedly delayed in bringing the proceeding...