Oakwood Terrace Hous. Corp. v. Monk

• Decision Date: 22 February 2016
• Docket Number: No. 2013–975 OR C.,2013–975 OR C.
• Citation: 36 N.Y.S.3d 48 (Table)
• Parties: OAKWOOD TERRACE HOUSING CORP., Respondent, v. Yvonne MONK, Appellant, and Theolonius Monk, Tenant.
• Court: New York Supreme Court — Appellate Term

36 N.Y.S.3d 48 (Table)

OAKWOOD TERRACE HOUSING CORP., Respondent,

v.Yvonne MONK, Appellant,andTheolonius Monk, Tenant.

No. 2013–975 OR C.

Supreme Court, Appellate Term, Second Dept., 2, 9 and 10 Judicial Dist.

Feb. 22, 2016.

Appeal from a final judgment of the Justice Court of the Town of New Windsor, Orange County(Noreen Calderin, J.), entered May 30, 2013.The final judgment, insofar as appealed from, after a nonjury trial, in effect, awarded landlord possession and the sum of $3,753.76 as against tenant Yvonne Monk in a nonpayment summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Justice Court for the entry of a final judgment dismissing the petition.

In this nonpayment proceeding,¹ tenant Yvonne Monk² appeals from so much of a final judgment, after a nonjury trial, as awarded landlord, as against her, in effect, possession and the sum of $3,753.76, representing the sum landlord alleged at trial was the amount owed for charges due under tenants' proprietary lease, less $2,100 in late fees included in those charges.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (seeNorthern Westchester Professional Park Assoc. v. Town of Bedford,60 N.Y.2d 492, 499[1983];Hamilton v. Blackwood,85 AD3d 1116[2011];Zeltser v. Sacerdote,52 AD3d 824, 826[2008] ).

A review of the trial evidence reveals that, of the $4,132.15 account balance alleged by landlord in the petition, $1,366.47 is accounted for in the petition and attached supporting documents, and $2,765.68 is not.Of the $1,366.47 accounted for in these papers, landlord demonstrated that $820.98, at most, was for rent arrears.Furthermore, the record shows that $1,031.95 of the unaccounted-for sum was for late fees and legal fees.

Since landlord did not submit a copy of the proprietary lease, it failed to demonstrate that late fees and legal fees are collectible in this summary proceeding as “additional rent”(seePeekskill Hous. Auth. v. Quaintance,20 Misc.3d 57[App Term, 9th & 10th Jud Dists2008] ).In any event, as the petition fails to identify what portion of the sum sought was for items other than base rent, it fails to adequately set forth the facts upon which the proceeding is based (RPAPL 741;seeGiannini v. Stuart,6 A.D.2d 418[1958];270 E. 95 Props., LLC v. Kent,49 Misc.3d 33[App Term, 2d, 11th & 13th Jud Dists2015] ) and must be dismissed.We note, in addition, that landlord materially failed to comply with RPAPL 711(2) by failing to plead or prove that it had made a demand for rent, and the dismissal of the petition is required for this reason as well (seePepe v. Miller & Miller Consulting Actuaries, Inc.,221 A.D.2d 545, 546[1995] ).Finally, since Yvonne Monk and her husband Theolonius Monk are united in interest, the petition must be dismissed as...