52 Riverside Realty Co. v. Ebenhart

• Decision Date: 03 April 1986
• Citation: 500 N.Y.S.2d 259,119 A.D.2d 452
• Parties: 52 RIVERSIDE REALTY COMPANY, Petitioner-Respondent, v. Rita EBENHART, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 259

500 N.Y.S.2d 259

119 A.D.2d 452

52 RIVERSIDE REALTY COMPANY, Petitioner-Respondent, v. Rita EBENHART, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

April 3, 1986.

Before MURPHY, P.J., and CARRO, MILONAS, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Appellate Term of the Supreme Court, First Department, entered October 31, 1983, which reversed the judgment of the Civil Court, New York County, (Wilk, J.) entered after a jury trial on February 26, 1982, dismissing the petition in a summary holdover proceeding for nonpayment of rent, unanimously reversed, on the law, and the judgment of the Civil Court reinstated, without costs.

The limited issue presented on this appeal is whether Civil Court properly instructed the jury that an agreement between appellant-tenant and petitioner-landlord's predecessor waiving the payment of rent would bind petitioner. The facts are uncontroverted. Appellant Rita Ebenhart has been a rent-controlled tenant in apartment 2-B of the apartment building located at 52 Riverside Drive since 1957. She has not paid rent for approximately ten years. The building has been sold several times pursuant to judicial and private sales during that period. Petitioner 52 Riverside Realty acquired the building on or about September 29, 1980 and commenced the instant summary proceeding for nonpayment of rent from September to December 1980.

Appellant litigated the trial before Judge Wilk and a jury, pro se. Her sole defenses were an alleged oral agreement made on March 20, 1974, with petitioner's predecessor-in-interest, Abraham Hirschfeld, and breach of the warranty of habitability. As proof that Hirschfeld agreed to waive the payment of rent until the building was electrically rewired Ebenhart sought to introduce into evidence the transcript of a previous jury trial in Civil Court, New York County. There the jury rendered a verdict on August 29, 1977, dismissing the petition in another summary proceeding. The jury specifically found "that the breach of agreement made in March, 1974 disallows the collection of rent for the disputed period...."

The trial court in the present case held the 1977 judgment immaterial, and ruled the transcript inadmissible. At the close of the evidence, the court also denied Ebenhart's request to instruct the jury essentially that petitioner was collaterally estopped from relitigating the existence of the agreement. The trial court propounded three interrogatories to assist the jury in reaching a verdict. Over the landlord's objection, the court charged the jury that petitioner "... owned the building subject to any agreements made by its predecessors." The jury answered the first interrogatory concerning the existence of the alleged oral agreement in the affirmative, and reached no other issues.

The Appellate Term reversed the judgment, holding that the trial court's instruction was improper, given the absence of evidence on the record that respondent had actual or constructive knowledge that its predecessor had waived its right to payment of rent citing Tehan v. Thos. C. Peters Printing Co., 71 A.D.2d 101, 421 N.Y.S.2d 465 (4th Dept., 1979). Accordingly, the court ordered a new trial solely on the defense of alleged breach of the warranty of...