Magnano v. Stewart

• Citation: 2021 NY Slip Op 50466 (U)
• Decision Date: 20 May 2021
• Docket Number: 044-20
• Parties: Linda Magnano, Petitioner, v. Philip A. Stewart, JANE DOE and JOHN DOE, Respondents.
• Court: New York Justice Court

2021 NY Slip Op 50466(U)

Linda Magnano, Petitioner,
v.
Philip A. Stewart, JANE DOE and JOHN DOE, Respondents.

044-20

New York Justice Court of the Town of Ossining, Westchester County

Decided on May 20, 2021

Anthony M. Giordano, Esq.

23 Spring Street

Ossining, NY 10562

Attorney for the petitioner

Philip A. Stewart

Respondent

Jeffrey W. Gasbarro, J.

The following papers were considered in connection with this holdover proceeding:

Notice of petition, verified petition, two exhibits, affidavit of service 1-5

Affidavit of service 6

Exhibits offered at the April 29, 2021 inquest (five pages) 7

Hand-delivered submission filed by the petitioner on

April 30, 2021 (after the hearing was closed) Not considered

This summary proceeding to recover possession of real property, for an award of damages representing unpaid rent, and for other incidental damages and attorney's fees is resolved as follows:

FACTUAL & PROCEDURAL HISTORY

The verified petition alleges that the parties entered into a residential lease with an initial term commencing March 10, 2019 and ending July 30, 2019. Thereafter, the leasehold allegedly became a month-to-month tenancy. On or about February 21, 2020, the petitioner allegedly served the respondent with a 30-day notice to quit. The petition alleges that the respondent thereafter held over.

On August 20, 2021, the petitioner commenced this holdover proceeding to recover possession of the premises, to recover rent then allegedly due and owing in the sum of $6,265, the respondent's portion of the electric bill then totalling $154, attorney's fees in the amount of $1000, plus costs and disbursements. After several adjournments, both parties appeared in court

Page 2

on April 15, 2021. The matter was adjourned to April 29, 2021 for a hearing on the petition.

On April 29, 2021, only the petitioner appeared in court for the hearing. The petitioner's counsel advised that the petitioner was no longer seeking possession of the premises, as the respondent voluntarily vacated the apartment after the proceeding had commenced, and was seeking only a money judgment for rental arrears plus other incidental costs.¹

Upon the respondent's default in appearing, the Court conducted an inquest at which the petitioner testified, under oath, that the respondent had rented an apartment under a lease and had failed to make the $875 payment due in February 2020. The respondent made no other payments or partial payments after that date.

The petitioner testified that in July 2020—a date which the Court notes was months after the respondent was served with a notice to quit—she served the respondent with a notice of "rent increase" purportedly increasing the base rent from $875 per month $920 per month. The petitioner offered a copy of this notice into evidence. The petitioner offered no testimony that the respondent ever agreed to this unilateral rent increase, or that he made any partial payments after the purported rent increase was served.

Additionally, the petitioner seeks to recover the respondent's portion of the electric bill, which the petitioner testified totaled $263.01. The petitioner testified that the respondent refused to return the keys to the apartment. The petitioner seeks to recover the sum of $142.22 for the cost to have a locksmith re-key the locks, and she offered into evidence a receipt for such costs. According to the receipt, the locks were changed on October 31, 2020. The petitioner also sought to recover for the costs of cleaning the apartment, the costs to replace shower curtains, and attorney's fees.

DISCUSSION

1. The petitioner is entitled to recover rent plus use and occupancy

For the reasons that follow, the Court finds that the petitioner is entitled to an award of rent, as well as use and occupancy, in the amount of only $875 per month for the nine-month period from February 1, 2021 to October 31, 2021 (the date the locks were re-keyed), for a total...