Houston Realty Corp. v. Castro

• Decision Date: 10 April 1978
• Citation: 404 N.Y.S.2d 796,94 Misc.2d 115
• Parties: HOUSTON REALTY CORP., Petitioner, v. Ramon CASTRO, "John" Jaminez, Maria Sebastian, Gonzala Reynosa, Juan Goris, Respondents.
• Court: New York City Court

Page 796

404 N.Y.S.2d 796

94 Misc.2d 115

HOUSTON REALTY CORP., Petitioner, v. Ramon CASTRO, "John" Jaminez, Maria Sebastian, Gonzala

Reynosa, Juan Goris, Respondents.

Civil Court of the City of New York,New York County,Trial

Term, Part 49.

April 10, 1978.

Edward Davis, New York City, for petitioner.

Stephen Myers, Irving Weitzman and Peter M. Wendt, New York City, for respondents.

LEONARD N. COHEN, Judge.

The order dated November 22, 1977 is recalled and revoked on consent of both sides in order to determine the sole stipulated motion in these non-payment summary proceedings seeking dismissal for lack of jurisdiction for failure of petitioner to plead compliance with New York Real Property Law, Section 235b (RPL).

These proceedings were commenced pursuant to New York Real Property and Proceedings Law, Section 711(2) (RPAPL), which provides for an eviction remedy if the landlord establishes that "the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held . . . ." Pursuant to RPAPL, Section 741(4), the petitioner is required to "state the facts upon which the special proceeding is based."

The respondents urge that one of the material facts upon which the proceeding is based is compliance with RPL, Section 235b which provides that in every rental agreement a landlord warrants habitability of the premises. Failure to so allege, the tenants contend, is a subject matter jurisdictional defect requiring dismissal of the petition. Moreover, respondents argue, the petitioner not only must plead, but must also prove, as part of its prima facie case, such performance. Neither common law nor statutory authority expressly impose this requirement.

The petitioner contends that summary proceedings are a creation of statutes which, in derogation of common law, must be strictly construed. All allegations required to be pleaded in a petition it is argued, are expressly enumerated in RPAPL, Section 741 or in the New York Civil Court Rules 2900.21(e) (f). The former is broadly expressed and the latter relates specifically to rent control status and registration as a multiple dwelling. The fact that RPL, Section 235b is not specifically referred to in any of the above, is therefore dispositive, according to the petitioner.

In deciding this case of first impression, the court relies upon the legislative intent of RPL, Section 235b and the public policy which this statute, together with New York Civil Court Act, Section 110, seek to advance. The statutory warranty of habitability represents a significant and beneficial change in landlord and tenant housing law. It guarantees as a matter of law that every agreement for the rental of residential property covenants that the premises are fit for human habitation and not subject to any conditions which would be dangerous, hazardous or detrimental to life, health or safety. Such a warranty is not waivable. Cosmopolitan Assoc. v. Ortega, 90 Misc.2d 437, 395 N.Y.S.2d 358 (Civ.Ct., N.Y.Co.1977). The public policy underlying this statute is obvious. It is the owner's responsibility to provide decent and safe housing. This responsibility is so compelling that the rental obligation, once an independent covenant, is now dependent on the landlord's compliance with RPL, Section 235b. The common law equivalent of RPL, Section 235b likewise applied the interdependence and mutuality of lease terms and conditions. B.H.L. Realty Corp. v. Cruz, 87 Misc.2d 258, 383 N.Y.S.2d 781 (Sup.Ct., App.T., 1st Dept.1975); Reichick v. Matteo, N.Y.L.J., Jan. 23, 1978, p. 13, col. 2 (App.T., 2d Dept.); 1 Restatement (Second), Property Law of Landlord and Tenant, Section 7.1 (1977); Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973); Javins v. First Natl. Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970) cert. den., 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970) and cases cited therein. Thus, the tenant may not be evicted by a summary proceeding because of non-payment of rent if the landlord has breached the warranty of habitability. Covington v. McKeiver, 88 Misc.2d 1000, 390 N.Y.S.2d 502 (Sup.Ct., 2d Dept. 1976). If the warranty is breached, the court may either fully or partially abate the rent. Morbeth Realty Corp. v. Velez, 73 Misc.2d 996, 343 N.Y.S.2d 406 (Civ.Ct., N.Y.Co.1973); 1 Restatement (Second), Property Law of Landlord and Tenant, Section 11.1 (1977). Or, it may apply the rent to the tenant's reasonable cost incurred in eliminating the breach. Jackson v. Rivera, 65 Misc.2d 468, 318 N.Y.S.2d 7 (Civ.Ct., N.Y.Co.1971); 1 Restatement (Second), Property Law of Landlord and Tenant, Section 11.2 (1977). This modern view of the lease as essentially a contract between the landlord and the tenant comprised of interdependent and mutual considerations is a radical departure from the old common law doctrine of caveat emptor which dominated the law in this area for so long. 57 East 54 Realty Corp. v. Gay Nineties Realty Corp., 71 Misc.2d 353, 335 N.Y.S.2d 872 (Sup.Ct., App.T. 1st Dept. 1972); Lefrak v. Lambert, 89 Misc.2d 197, 390 N.Y.S.2d 959 (Civ.Ct., Queens Co.1976); Morbeth Realty Corp. v. Velez, supra. See also, Posner and Gallet, Mitigation of Damages in Residential Lease Breaches, N.Y.L.J. Apr. 5, 1978, p. 1, col. 2 for cases cited therein.

Changes that have recently taken place in landlord and tenant housing law evidence both the court's and the Legislature's recognition that the demands of urban society require a re-evaluation of the rights and obligations of landlords and tenants. Across the nation, there is a substantial body of statutory and common law reflecting a trend that no one should be allowed or forced to live in unsafe and unhealthy housing. See 1 Restatement (Second), Property Law of Landlord and Tenant, Section 5 (1977). Significant changes in common law doctrine are generally the product of legislation, or the codification of evolving common law concepts consistent with reasonable necessity. The task of modifying the existing body of the law to fit the structural changes wrought by the Legislature often, of necessity, is left to the courts with the expectation that given the purposes and public policy, they will mould substantive doctrine to render these goals effective. Landis, Statutes and the Sources of Law, Harvard Legal Essays 1934, pp. 222-223. As stated by Governor Hugh Carey in his message approving RPL Section 235b, this bill moves the law of landlord and tenant into the twentieth century. But, he also noted that:

"Many of the comments received on this bill have expressed concern over its failure to establish procedures for enforcement and...