Greenburger v. Leary

• Decision Date: 23 May 1983
• Citation: 119 Misc.2d 358,462 N.Y.S.2d 996
• Parties: Francis GREENBURGER and Philip J. Rudd, Petitioner-Landlord, v. Vincent LEARY and "John Doe and/or Jane Doe," Respondent-Tenant.
• Court: New York City Court

Page 996

462 N.Y.S.2d 996

119 Misc.2d 358

Francis GREENBURGER and Philip J. Rudd, Petitioner-Landlord, v. Vincent LEARY and "John Doe and/or Jane Doe," Respondent-Tenant.

Civil Court of the City of New York,

New York County.

May 23, 1983.

Mark S. Rudd, New York City, for petitioner-landlord.

Julius Weiss, New York City, for respondent-tenant.

DECISION

LEWIS R. FRIEDMAN, Judge.

This case presents a novel application of the doctrine of "stale" non-payment summary proceedings under the RPAPL. The respondent seeks to require a landlord who has commenced a hold-over proceeding, based on an alleged breach of a material obligation of the lease, to accept tenders of rent or "use and occupation" during the course of that proceeding. According to the respondent the landlord's failure to accept payments tendered after the holdover petition was served operated as a forfeiture of the landlord's right to claim the back rent in a non-payment proceeding commenced after the original case was dismissed. The respondent's request to extend the caselaw concept of "staleness" or laches must be rejected.

The petition here, which was later amended, sought 12 months rent at the time it was filed. The respondent relied on a line of cases, that have apparently held that a landlord who allows a substantial period to elapse before filing a summary proceeding has lost the right to resort to a summary proceeding under Article 7 of the RPAPL, to support his claim that the rent sought here is too "stale" to be the subject of a nonpayment proceeding under Article 7 of the RPAPL. (See e.g. Gramford Realty Corp. v. Valentin, N.Y.C.Civ.Ct., 71 Misc.2d 784, 337 N.Y.S.2d 160; City of New York v. Betancourt, 79 Misc.2d 907, 362 N.Y.S.2d 728 (App.T. 1st Dept.) Antillean Holding Co. Inc. v. Lindley, 76 Misc.2d 1044, 352 N.Y.S.2d 557; New Approach Rehabilitation Corp. v. Purdie, NYLJ, Dec. 29, 1980, p. 13 col. 5. (App.T., 2d and 11th Dist.); Maxwell v. Simons, N.Y.C.Civ.Ct., 77 Misc.2d 184, 353 N.Y.S.2d 589.) The petitioner, on the other hand, cites cases such as 269 Associates v. Yerkes, N.Y.C.Civ.Ct., 113 Misc.2d 450, 449 N.Y.S.2d 593, which attack the Gramford line of authority; it also argues that its claim is not stale since the parties had been litigating a holdover proceeding for 6 of the months at issue. The respondent in an ingenious application of statutory construction replies that RPAPL § 711 subd. 1, which authorizes the acceptance of rent after a holdover petition has been filed, makes the failure to accept tendered rent fatal to a subsequent non-payment proceeding.

The Gramford line of cases appear to be inconsistent with each other; there is no single analytical thread which can be followed through them. Judge Saxe in 269 Associates v. Yerkes, supra, and Judge Klein in Dedvukaj v. Madonado, 115 Misc.2d 211, 453 N.Y.S.2d 965 (1982) both of this court have recently discussed Gramford and its progeny and have convincingly shown that there is a lack of uniformity in deciding what the rule is or what is its proper operation. Gramford itself, for example, described the staleness rule as one which was based on the inherent power of the court to prevent outrageously unfair, unjust results. That is, where a landlord has intentionally refused to pursue its remedy so that the tenant will ultimately be unable to satisfy a judgment, resort to a summary proceeding is barred as a result of the court's sense of fairness. At the other extreme of the caselaw is Maxwell v. Simons, supra, which attempted to create an absolute three month limit on the amount of rent which could be a predicate of a summary proceeding. Despite the attempted reliance on Maxwell by numerous practitioners in this court, the absolute time limit set up in Maxwell v. Simons, supra, has been rejected, at least in the First Department. (See, e.g. Trustees of C I Mtge Group v. NYILR Ltd., NYLJ Dec. 8, 1978, p. 6 col. 3 (App. T., 1st Dept.); cf. Antillean Holding Co. v. Lindley, supra.)

The more recent Appellate cases are consistent only in holding that the delay must be examined in each instance to determine whether it is being used to manipulate the tenant so as to create an eviction. (See e.g. 177 East 90th Street v. Devine, NYLJ, March 30, 1982, p. 6 col. 1 (App. T., 1st Dept.); Schwartz v. Abt, NYLJ, May 4, 1978, p. 5 col. 4 (App. T., 1st Dept.); Thunderbird Realty v. Ahn, NYLJ, Nov. 19, 1981, p. 11 col. 1 (App. T. 1st Dept.); New York City v. Betancourt, supra.) It appears, therefore, that whatever the analytical basis for Gramford and its progency may be--whether public policy, laches, waiver, or bad faith application--if there is good cause for delay there is no basis for precluding a landlord's resort to a summary proceeding under the RPAPL.

In the case at bar, I find that there is good cause for the landlord's delay--a landlord has the right to complete a holdover proceeding before accepting any rent. That conclusion is based on an analysis of the law of waiver and RPAPL 711 subd. 1.

Normally, once a landlord knows of a possible material breach of a lease, its collection of rent from a tenant will constitute a waiver of that breach. (See e.g., LaTam Realty Corp. v. Hand, NYLJ, July 16, 1980, p. 10 col. 2 (App. T. 1st Dept.), Ilfin Co. v. Gatto, NYLJ, Nov. 26, 1979 (App.T. 1st Dept.).) The landlord with knowledge of a material breach of a lease is, as a practical matter, given two choices; 1. waive the breach, accept the rent and continue the tenancy, or 2. terminate the tenancy in accordance with the lease's terms and, if necessary, commence a holdover proceeding. The second course, obviously prohibits the acceptance of rent after the lease is terminated. (See, e.g. Maidman Properties, Inc. v. Rebuilt Machinery Corp., 54 N.Y.S.2d 263 (Mun.Ct. NY Co.1945).) However, in 1946 the Legislature determined to overrule cases such as Maidman, supra, by amending the then Civil Practice Act (L.1946 ch. 684) to allow rent to be accepted "during" a holdover proceeding; that meant that after the petition was served, indeed, even after a final judgment, the landlord could accept rent. (See e.g. Empire State Inc. v. Graceline Handbags Inc., 192 Misc. 679, 80 N.Y.S.2d 266 (Mun.Ct. NY 1948); Leonis v. Ambrosin 188 Misc. 820, 69 N.Y.S.2d 403 (Sup.Ct.App.T. 1st Dept. March 13, 1947); Greenberg v. Karnetsky, 188 Misc. 674, 71 N.Y.S.2d 535 (Sup.Ct.App.T. 2d Dept., 1947).) The current codification of the statute, RPAPL § 711 subd. 1 provides, in pertinent part:

A special proceeding may be maintained under this article upon the following grounds:

1. The tenant continues in possession of any portion of the premises after the expiration of his term without the permission of the landlord * * *. Acceptance of rent after commencement of the special proceeding upon this ground, shall not terminate such proceeding nor affect any award of possession to the landlord or the new lessee, as the case may be.

Thus, the petitioner here could have accepted tenant's rent tenders...