Putnam Realty Assocs. LLC v. Piggott

• Decision Date: 19 January 2012
• Docket Number: No. 083171/2011.,083171/2011.
• Citation: 2012 N.Y. Slip Op. 50281,951 N.Y.S.2d 83,34 Misc.3d 1228
• Parties: PUTNAM REALTY ASSOCIATES LLC, Petitioner, v. Matthew PIGGOTT, Respondent.
• Court: New York Civil Court

34 Misc.3d 1228

951 N.Y.S.2d 83

2012 N.Y. Slip Op. 50281

PUTNAM REALTY ASSOCIATES LLC, Petitioner,

v.Matthew PIGGOTT, Respondent.

No. 083171/2011.

Civil Court, City of New York,

Kings County.

Jan. 19, 2012.

Vicki Gail Price, Esq., for Petitioner.

South Brooklyn Legal Services, for Respondent.

MARCIA J. SIKOWITZ, J.

RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.

PAPERSNUMBERED

NOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT

ANNEXED ..................................................1–––3–––

ANSWERING AFFIRMATION AND AFFIDAVIT ANNEXED....13–––14–––

REPLYING AFFIRMATION..................................................–18

EXHIBITS..................................................–––4–12;–––15–17;––––

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

Petitioner commenced this summary nonpayment proceeding to recover possession of the subject rent stabilized apartment No.11, located at 186 Prospect Place, Brooklyn, New York. The petition demands $7591.86 in rent representing a balance of $583.98 for August 2010, and $583.99 each month for the period June 2010 through and including July 2011. Petitioner appears by counsel. Respondent initially appeared pro se and filed a written answer, but subsequently appeared by counsel on the first adjourn date.

The respondent moves by Notice of Motion for an order granting him leave to serve an amended answer and deeming that answer served and filed nunc pro tunc, as well as for an order granting him summary judgment and dismissing the underlying summary nonpayment petition. The petitioner opposes the motion in its entirety.

The Undisputed Facts

The prior tenant of record, Willie May Rogers, passed away on November 4, 2009. The last lease Ms. Rogers entered into before she died expired on May 31, 2010. After Ms. Rogers died the petitioner commenced a licensee holdover proceeding under L & T index 77480/2010 against the respondent, who is Ms. Rogers' great grandson. Pursuant to the decision and order after trial of the Honorable John Lansden, dated February 25, 2011 ¹, the holdover proceeding was dismissed. The trial court found that respondent successfully proved his affirmative defense that he was entitled to succeed to the rent stabilized tenancy of Willie May Rogers.

The petitioner subsequently sent the respondent a lease renewal offer. The petitioner's lease renewal offer was dated April 21, 2011 and was to commence on June 1, 2010. This commencement date in the lease offered by petitioner was one day after the expiration of the deceased tenant of record's lease which expired on May 31, 2010. The respondent notified the petitioner's attorney by letter dated May 12, 2011 that he objected to the June 1, 2010 lease commencement date based on its noncompliance with Rent Stabilization Code (RSC) 2523.5(c)(1). Petitioner's lease renewal offer commencing June 1, 2010 was returned unsigned, and respondent forwarded a proposed renewal lease commencing on August 1, 2011 which he signed, along with an explanation that he had chosen a commencement date of August 1, 2011 with increases in effect at that time “... which is 90 days (plus about 10) from the date the lease was offered, rather than having it commence on the date that it would have had the offer been timely ...” ²

Petitioner notified respondent that the landlord refused to sign the respondent's proposed renewal lease form. Petitioner objected to the commencement date, and stated that respondent failed to provide two originals of the renewal lease. Petitioner further advised the respondent that the section of the rent stabilization code the respondent was relying on was inapplicable to the particular situation presented ³.

The petitioner then commenced the underlying nonpayment proceeding.

The instant motion:

Respondent argues that the petitioner cannot maintain this proceeding because there is no explicit or implicit agreement between the parties that obligates him to pay rent. The respondent states that the landlord chose not to recognize him as a successor tenant and failed to offer him a proper renewal lease upon expiration of his deceased great grandmother's lease. Instead of offering respondent a renewal lease upon the expiration of the deceased tenant's term, petitioner tried to evict him by commencing a licensee holdover proceeding against him. Respondent argues that the petitioner cannot maintain this proceeding and avail itself of the remedy of a nonpayment proceeding to collect rent from the successor tenant from the date of the expiration of the deceased tenant's lease period. Respondent argues that the landlord is not entitled to seek a possessory judgment for rent arrears for the period of time petitioner refused to acknowledge respondent's succession rights and offer him a renewal lease.

If petitioner had properly offered respondent a renewal lease in his name at the expiration of the prior tenant's lease, there would have been a landlord tenant relationship, and an obligation by respondent to pay rent. Under those circumstances, petitioner would have had a cause of action for non payment of rent. Respondent contends that the petitioner failed to avail itself of its remedies regarding use and occupancy during the pendency of the holdover case, and can pursue its claims for use and occupancy in small claims or civil court. The respondent contends that whether or not he is liable for unpaid use and occupancy, the remedy is not eviction, but a plenary action in civil or small claims court.

The respondent contends that after the licensee holdover proceeding against him was dismissed after trial, he was found to have succeeded to his great grandmother's rent stabilized tenancy. The petitioner still failed to tender him a valid renewal lease. Respondent argues that the renewal lease the petitioner offered, dated April 21, 2011, was invalid, as it purported to commence the day after his deceased great grandmother's lease expired. This date, April 21, 2011, was a date prior to petitioner's commencement of its unsuccessful licensee holdover proceeding against him. Respondent argues that he rejected petitioner's invalid lease renewal offer, and offered his own, signed renewal lease commencing August 1, 2011. However, as of the date of the motion submission, neither he nor his attorney have ever received a countersigned copy of that lease from the petitioner.

Petitioner argues in opposition that the respondent should not be permitted to file an amended answer as his attorney's affirmation does not state a reason as to why he did not initially put in an answer on behalf of the respondent. Appended to petitioner's opposition is an affidavit from petitioner's managing agent Debra Cooper. Ms. Cooper attests that she has never received any notice of repairs from the respondent or his attorney. Ms. Cooper also attests her attorney informed her that the payment of rent for the balance of the lease term after Ms. Rogers died is the responsibility of her estate, and the petitioner has never received rent for that period from November 1, 2009 through May 31, 2010 totaling $4108.93. Ms. Cooper states that the respondent paid one month's use and occupancy in August 2010. Respondent failed to pay U & O pursuant to a September 12, 2011 stipulation that obligated him to pay use and occupancy for September and October 2011.

Petitioner argues that paragraph 28 of the original lease between the petitioner's predecessor and the now deceased Willie Mae Rogers does obligate the respondent to pay rent, as it states: “This Lease is binding on Landlord and Tenant and their heirs, distributees, executors, administrators, successors and lawful assigns” ⁴. Petitioner contends the respondent's rights and obligations including payment of rent, took effect upon Willie May Rogers' death and thus the renewal lease the petitioner offered to the respondent commencing June 1, 2010 is correct as it commences immediately after Ms. Rogers' last renewal lease expired on May 31, 2010.

Petitioner further contends that RSC section 2523.5(c)(1) is inapplicable to the situation herein. Petitioner argues that RSC Section 2523.5(c)(1) makes reference to RSC Section 2523.5(a) which states it applies to the tenant named in the expiring lease, and in the instant matter, the tenant named in the expiring lease, Willie May Rogers, is deceased.

Petitioner further argues that there is a dispute as to the date the respondent's lease should begin and the amount of the monthly rent, and as such the court is precluded from granting the instant summary judgment motion. Petitioner also points out that the respondent has not cited which specific section of CPLR 3211 he is moving under in requesting summary judgment.

DISCUSSION:The branch of respondent's motion seeking leave to amend the answer:

A party may amend or supplement his pleadings by leave of the court, which shall be freely given. CPLR 3025(b). Public policy favors resolution of cases on their merits. Goldman v. City of New York, 287 A.D.2d 482 (AD 2nd Dept, 2001). “Courts have broad discretion to grant relief from pleading defaults where the moving party's claim or defense is meritorious, the default was not willful, and the other party not prejudiced.” Goldman v. City of New York, supra. At 483. See also Smith v. Maya 1999 WL 1037917 (N.Y.A.D.2d Dept., Jul 23, 1999) (NO. 98–770–KC).

The respondent initially appeared pro se and filed a written answer through the court clerk's office. Respondent subsequently appeared by counsel on the first adjourn date. The respondent's instant motion was returnable on the first adjourn date, and appended to it is his proposed amended answer. Respondent's proposed amended answer interposes an affirmative defense of a breach of the warranty of habitability and a counterclaim for attorney's fees ⁵. The proposed amended answer also requests the court issue an order dismissing the...