Maplewood Mgmt. v. Jackson
| Citation | 113 Misc.2d 142,448 N.Y.S.2d 966 |
| Parties | MAPLEWOOD MGMT., Petitioner, v. Lloyd JACKSON and Laura Jackson, Respondents. |
| Decision Date | 12 March 1982 |
| Court | New York District Court |
The within non-payment of rent Summary Proceeding has been submitted by written stipulation on an agreed statement of facts. Therefore, notwithstanding any facts urged upon the Court by the petition or amended verified answer, the facts, as derived from the written stipulation, are deemed to be the following:
Respondents' are in possession of premises pursuant to a written lease and renewal agreement. There were two prior summary proceedings for non-payment of rent, one commenced by the Petitioner on October 15, 1981 and another on December 14, 1981. Both proceedings resulted in judgment for the landlord but for possession only without any money judgment having been entered due to the manner of service of the notice of petition and copy of petition limiting the jurisdiction of the court to grant judgment for possession and not for any money judgment.
The present petition dated January 19, 1982 seeks recovery of amounts which would come under the category of alleged charges of "additional rental" consisting of late charges, marshal fees, and attorney's fees.
While the petition lists each of the items sought to be recovered, the language of the petition sets forth that there was due to landlord from Respondent "rent as follows" listing each charge but without specifying that these items came under the category of "additional rent". The lease provisions are clear. With respect to the late charge the lease specifically states that late charges shall be enforcible as additional rental at any time after same becomes due. The demand for reimbursement of the late charge in the petition is clearly designated as such so that the Respondent has due notice that the amounts sought to be recovered are as additional rental even though not so specified. There is no need to amend the petition to include the words "additional rental" but if such were necessary the court believes that the petitioner very correctly argues that same would not be a jurisdictional defect and therefore the petition would be amendable, although as stated by the court, it does not believe that an amendment is needed in this instance. Jackson v. New York City Housing Authority, 88 Misc.2d 121, 387 N.Y.S.2d 38.
The present summary proceeding, commenced January 19, 1982 seeks October "marshal fees", December "back legal" fees, December late charges, December marshal fees, December court disbursements, January late charges and the cost of this summary proceeding. As stipulated by both respondent and petitioner, the balance of January's rent ($125.00) was tendered on January 10, 1982 by tenant. However petitioner-landlord refused unless the above-mentioned fees were paid. Respondent-tenant has appeared by an attorney from the Nassau County Law Services; both parties have submitted memoranda of law to the Court.
The first issue that petitioner-landlord has set forth is his right to recover legal fees based on Clause 8 of a lease dated May 28, 1981 and signed by the respondent-tenants. Clause 8 provides:
Petitioner-landlord maintains that when required to proceed against tenant due to a default in a rental payment, the necessary attorney's fees are to be treated as additional rent.
Respondent-tenant alleges Clause 8 to be unconscionable and in the nature of a penalty. Respondent compares Clause 8 to a clause which was at issue in Weidman v. Tomaselli, 81 Misc.2d 328, 365 N.Y.S.2d 681, aff'd. 84 Misc.2d 782, 386 N.Y.S.2d 276. In Weidman, the lease in question required a fixed, arbitrary amount (100.00) plus court costs and disbursements payable by tenant at the commencement of any legal proceedings, regardless of the judicial determination of the claim. The Rockland County Court held that the fixed amount was in the nature of a penalty having no connection with the actual costs incurred by the landlord. Furthermore, the wording of the clause requiring the fee payable at the commencement of any suit or proceeding regardless of the outcome was declared unconscionable.
The Weidman case may be distinguished from the case at bar in that Clause 8 neither states an arbitrary amount due as legal fees, nor does it require the payment of fees due at the commencement of the action or proceeding by the landlord.
This Court is inclined to agree with the general interpretation of this type clause in that when the landlord is required to proceed against the tenant(s) for the payment of rent or for the breach of some other material term of the lease, the necessary and reasonable legal fees when expressly agreed upon by tenant may lawfully be treated as additional rent. 379 Madison Avenue Inc. v. Stuyvesant Co., 242 App.Div. 567, 275 N.Y.S. 953, aff'd. 268 N.Y. 576, 198 N.E. 412; Morningside v. Lucille, 70 Misc.2d 760, 334 N.Y.S.2d 735. Hence, this Court has subject matter jurisdiction.
Clause 8 is not a penalty despite the absence of the word "reasonable" in the language since the Court will only award those costs allowed by statute. The costs available in District Court are the statutory sums for each tenant served and the fee for the issuance of the notice of petition, if it has been paid. The actual expenses of the petitioner are not the measure of costs, only the amounts allowable by statute. UDCA § 1903(d), (m); § 1911(a)(1).
Furthermore, implied in the lease provision authorizing a charge to tenant for landlord's legal expenses is a corresponding obligation of the landlord to pay tenant's legal expenses in a successful defense of any proceeding or action commenced by landlord against tenant arising out of the lease. RPL § 234.
With respect to the late fee, Clause 30 provides:
"In the event the landlord fails to receive any monthly payment by the 10th of any month in which payment is due, tenant agrees to be liable for additional $20.00 late charge. Such late charge shall be enforceable as additional rent at any time after same becomes due hereunder without the necessity of any billing therefor. Such late charge shall not authorize rental payments after the first of any month and the same shall be due in addition to such other remedies landlord has for a non-payment of rent on the 1st day of any month.
In determining the enforceability of such clause the primary question to...
To continue reading
Request your trial
-
Brenner v. Gen. Plumbing Corp.
...N.Y.S. 953, aff'd. 268 N.Y. 576, 198 N.E. 412 ; Morningside v. Lucille, 70 Misc.2d 760, 334 N.Y.S.2d 735 ; Maplewood Mgmt. v. Jackson, 113 Misc.2d 142, 448 N.Y.S.2d 966 (Dist.Ct.1982). See also CPMI, Inc. v. Kolaj, 65 AD3d 605, 885 N.Y.S.2d 496 (2009 N.Y. Slip Op. 06231 ) holding that a lat......
-
Highgate Associates, Ltd. v. Merryfield
...Kan. 359, 368, 590 P.2d 1043, 1051 (1979); Borne v. Wilander, 509 So.2d 572, 573 (La.Ct.App.1987); Maplewood Mgmt. v. Jackson, 113 Misc.2d 142, 146-48, 448 N.Y.S.2d 966, 970 (Dist.Ct.1982). Others have struck them down. See, e.g., Burstein v. Liberty Bell Village, Inc., 120 N.J.Super. 54, 5......
-
Barstow Road Owners, Inc. v. Billing
...for the respondents to be granted there must be a statutory or contractual basis for said fees. (RPL § 234). Maplewood Management v. Jackson, 113 Misc.2d 142, 448 N.Y.S.2d 966 (Dist. Ct. Nassau County, Moreover, the Supreme Court action before Justice McCaffrey was commenced by the responde......
-
Buchanan v. Kettner
...(Ind.App. 1989) ($2.00 per day late fee reasonable where landlord's damages depended on several variables); Maplewood Mgmt. v. Jackson, 448 N.Y.S.2d 966, 970, 113 Misc.2d 142 (1982) ($20.00 late fee imposed after the 10th day of the month not unconscionable). Contra: Spring Valley Gardens A......