Bonner v. Wright, CV-047619-18/WA

• Decision Date: 15 October 2019
• Docket Number: CV-047619-18/WA
• Citation: 119 N.Y.S.3d 18 (Table),65 Misc.3d 1214 (A)
• Parties: William BONNER, Plaintiff v. D.N. and Thomas Wright, Defendants.
• Court: New York City Court

65 Misc.3d 1214 (A)

119 N.Y.S.3d 18 (Table)

William BONNER, Plaintiff

v.D.N. and Thomas Wright, Defendants.

CV-047619-18/WA

City Court, New York, City of Watertown.

Decided on October 15, 2019

Eugene R. Renzi, J.

Procedural History

The Defendants leased an apartment from the plaintiff pursuant to a written lease agreement and moved out of the premises prior to the expiration date of the lease. The Plaintiff brought this action for unpaid rent, late fees, late charges and interest based upon an alleged breach of the agreement. Plaintiff now seeks summary judgment asserting that there are no material issues of fact which exist.

This action was commenced by the filing of a summons and complaint on April 11, 2018 in Watertown City Court. The defendants filed a joint response to the summons on April 30, 2018 however, after such time the defendant, Thomas E. Wright has not appeared in this action. The defendant, D.N., has appeared in subsequent proceedings involving this matter and filed a "Response to Summons" on September 30, 2019. The defendant, D.N., was advised in Court of the potential issues of proceeding without an attorney due to the legal complexities involved with this matter.

On September 3, 2019, the plaintiff filed this motion for summary judgment and on the return date, plaintiff's counsel appeared along with the defendant, D.N. who was then directed to file additional responding papers to the plaintiff's complaint. On September 30, 2019 the Court received the defendant's response to the plaintiff's allegations along with a request to deny the summary judgment motion in which she also seeks a judgment against the plaintiff for damages.

Summary of Facts

The parties entered into lease agreement on January 2, 2016, a copy of which is included in plaintiff's motion papers and attached to the underlying complaint filed in this matter. The lease was for a period commencing January 1, 2016 through January 1, 2017 and the agreed upon monthly rent was in the amount of $800.00 plus a pet deposit fee in the amount of $250.00 contingent upon permission being granted by the plaintiff. The Plaintiff asserts the defendant vacated the premises "sometime in the fall of 2016" which is consistent with Ms. N's position as set forth in her responding papers.

Plaintiff is claiming damages in the amount of $6,300.00 which consists of $4,800.00 for back rent, plus late fees in the amount of $10.00 per day (plus interest) and $250.00 per month for late charges.

In response to the complaint, Ms. N. submitted a "Response to Summons" stating that she vacated the premises due to the plaintiff's failure to properly maintain the premises, the ongoing domestic violence issues with Thomas Wright and ‘harassment’ from the downstairs tenant. Specifically, Ms. N.contends that while residing in the premises, the roof leaked, there was a broken window in the attic which allowed for animals to enter the residence, she was attacked by Mr. Wright, the property manager had entered the apartment without notice and after lodging a complaint against the downstairs neighbor for smoking marijuana he because abusive toward her.

Ms. N. also contends that due to these ongoing issues that she notified the plaintiff of her desire to vacate the premises on September 1, 2016 and if permission was granted that she would forego any claim to the security deposit posted.

The affidavit of William Bonner, in support of the motion for summary judgment, states that after execution of the rental agreement with the defendants, that monthly payments were made on a regular basis until July of 2016 and no rent was paid thereafter. Mr. Bonner further sets forth that he did not become aware that the defendant was no longer residing in the apartment until late fall / early winter of 2016. Mr. Bonner also alleges that neither defendant provided notice upon vacating the property however, upon becoming aware of the situation attempts were made to mitigate his damages by renting the residence to another individual.

The affirmation submitted by plaintiff's counsel states that the defendants are required to pay rent for the duration of the lease terms, they did not provide notice that they were vacating the property and the plaintiff did not release them from the terms of the lease. Counsel also sets forth that a Notice to Admit was served and based upon the defendant's failure to respond, those statements should be considered admissions pursuant to CPLR § 3123. Lastly, the attorney for the plaintiff states that there are no material issues of fact and as such the request for Summary Judgment is appropriate.

The Court will further note, that on October 10, 2019 the attorney for the plaintiff submitted a responding affirmation stating that summary judgment is being sought against Thomas Wright due to his non-appearance and D.N. has failed to raise a material issue of fact in her submission dated September 30, 2019.

Standard of Law and Findings

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320 [1986] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with facts, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. "If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it" (Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, C3212:16 citing Laye v. Shepard , 48 Misc 2d 478, aff'd 25 AD2d 498 ). "When the movant's papers make out a prima facie basis for a grant of the motion [for summary judgment], the opposing party must ‘come forward and lay bare his proofs of evidentiary facts showing that there is a bona fide issue requiring a trial...[H]e cannot defeat this motion by general conclusory allegations which contain no specific factual references.’ [internal citation omitted]..." (Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, C3212:16).

Furthermore, it has long been held that a Court in considering a motion for summary judgment shall review the submissions in a light most favorable to the non-moving party and due to the drastic nature and remedy of summary judgment "relief should be granted only where no genuine, triable issue of fact exists...." ( Broadway-111th Street Associates v. Morris, 160 AD2d 182 [1st Dept 1990].

The Court finds the plaintiff has established the required prima facie case as there has been non-payment of rent during the period of time of the lease agreement. As such, the Court must examine whether or not D.N. has proffered the requisite information and...