Finlayson v. Yager, 2008 NY Slip Op 52052(U) (N.Y. Dist. Ct. 9/10/2008)
| Decision Date | 10 September 2008 |
| Docket Number | SP-08-2853 |
| Citation | 2008 NY Slip Op 52052 |
| Parties | BRUCE A. FINLAYSON, Petitioner, v. ECHOLE YAGER, Respondent. |
| Court | New York District Court |
Frank M. Mora, Esq., Poughkeepsie, NY, Attorney for the petitioner.
Echole Yager, Poughkeepsie, NY, Respondent pro se.
The Petitioner having filed a summary eviction proceeding against the respondent, Echole Yager, on July 31, 2008, and the petitioner having appeared by Frank Mora, Esq., and the respondent having appeared pro se on August 20, 2008, and rent payment having been paid and accepted by the Petitioner for July 2008, the Petitioner now seeks a warrant of eviction. This Court now having examined the Notice of Petition, Petition, Affidavits of Service, contents of the Court file, and having duly deliberated thereupon determines as follows:
Petitioner, BRUCE C. FINLAYSON, is the owner and landlord for 36 South Clinton Street, Poughkeepsie, New York. Petitioner filed a summary eviction proceeding alleging that the respondent defaulted in the lease agreement by failing to pay the July 2008 rent. Respondent is a tenant at said location and has a written rental agreement with petitioner, wherein respondent agreed to pay petitioner the sum of $750.00 per month to rent said premises. Petitioner is suing respondent to recover possession of the rental property and for past rent due in the amount of $605.00, and fair value of use and occupancy from the date judgment is rendered.
On July 24, 2008, a 3-day notice was personally served upon the respondent seeking $605.00. The 3-day notice was sent to the respondent from the landlord and includes the landlord's attorney's name on the notice. The 3-day notice served upon the respondent advised that he had thirty days after the receipt of the notice to dispute the validity of the debt. Despite such notice, on July 31, 2008, a notice of petition and petition for nonpayment were served (by substitute service) upon the respondent. On August 4, 2008, petitioner signed an affidavit stating that he received cash in the amount of $1,100.00 from the respondent-tenant. Said affidavit states that the money "has been applied $650.00 for July's rent and $495.00 towards August's rent of $750.00." At the August 20, 2008 court appearance, the petitioner sought a judgment and warrant of eviction despite the fact that the respondent paid the rent demanded in the notice and the petition. The Court gave petitioner until September 3, 2008 to submit a memo of law to support his request for a warrant of eviction in a case where the respondent-tenant has complied with the petitioner-landlord's rent demand. On September 3, 2008, in lieu of a memo of law, petitioner's attorney submitted a letter seeking judgment for attorney's fees and costs relating to the summary proceeding initiated here stating, his client "is not willing to pay me for the necessary time to research case law to see if you will grant a judgment for rent." Mora letter dated August 28, 2008. Petitioner does not seek a judgment for any amount of rent due. The Order submitted with petitioner's letter is entitled, "Judgment of Eviction."
As a preliminary matter, an attorney who regularly engages in consumer debt collection activities and signs a rent demand notice on behalf of a landlord, must comply with the provisions of the Fair Debt Collection Practices Act (FDCPA) and its 30-day validation notice provisions, even thought the RPAPL § 711(2) permits litigation within three (3) days of the service of a rent demand notice. 15 U.S.C. § 1692n. Eina Realty v. Calixte, 178 Misc 2d 80 (Kings County 1998); Maguire v. CitiCorp. Retail Services, 147 F.3d 232, 235 (2d Cir. 1998). This is so because State law is preempted by the FDCPA where an inconsistency arises between the two statutes. More specifically, the FDCPA provides that the provisions of this federal statute, "do not annul, alter, or affect . . . the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter." 15 U.S.C. § 1692n (emphasis added).
On the other hand, this Court notes that the FDCPA notice provisions do not apply where the creditor, rather than a debt collector, directly attempts to collect the debt. As such, if the landlord sends the demand for rent, then the landlord, as a creditor directly trying to collect a debt, would not have to wait the 30-days before commencing his eviction proceedings. Eina Realty, supra; Monogram Credit Card Bank of Georgia v. Mata, 195 Misc 2d 96, 97 (New York 2002). In such instance the initiation of the summary proceeding would be regulated by RPAPL § 711(2) instead. This is so because the FDCPA was enacted to protect debtors from the abusive practices of debt collectors only, not the creditor himself, and the debt collector must notify the debtor that he has the right to dispute the validity of the debt within thirty (30) days. 15 U.S.C. § 1692, 15 U.S.C. § 1692(6). However, where the petitioner's attorney signs the notice to quit, or where the attorney's name appears with the landlord's name on a notice to quit, then the petitioner must wait the 30-day period to expire before commencing a summary proceeding. Eina Realty, supra at 84-85.
Here, the petitioner's attorney's name appears on the notice to quit, which was served on the respondent-tenant on July 24, 2008. Having been notified in the 3-day notice that he had 30-days to dispute the debt, the respondent-tenant paid the petitioner the money demanded less than two (2) weeks after being served with the notice to quit, and thus prior to the 30-days expiring. Nevertheless, the...
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