Sharp v. Norwood

• Decision Date: 21 May 1996
• Citation: 223 A.D.2d 6,643 N.Y.S.2d 39
• Parties: Peter Hagner SHARP, Caroline Mary Sharp and Randall Allison Sharp, as the Executors of the Will of Peter J. Sharp, Deceased, Petitioners-Landlords-Appellants, v. Angela NORWOOD, 444 East 52nd Street, 4F, New York, New York 10022, Respondent-Tenant-Respondent, and "John Doe" and "Jane Doe", Respondents-Undertenants.
• Court: New York Supreme Court — Appellate Division

Page 39

643 N.Y.S.2d 39

223 A.D.2d 6

Peter Hagner SHARP, Caroline Mary Sharp and Randall Allison

Sharp, as the Executors of the Will of Peter J.

Sharp, Deceased, Petitioners-Landlords-Appellants, v. Angela NORWOOD, 444 East 52nd Street, 4F, New York, New York

10022, Respondent-Tenant-Respondent,

and

"John Doe" and "Jane Doe", Respondents-Undertenants.

Supreme Court, Appellate Division,

First Department.

May 21, 1996.

Magda L. Cruz, of counsel (Sherwin Belkin and Paula Elaine Kay, on the brief, Belkin, Burden, Wenig & Goldman, LLP, attorneys), New York City, for petitioners-landlords-appellants.

Robert E. Levy, New York City, attorney for respondent-tenant-respondent.

Before SULLIVAN, J.P., and ELLERIN, ROSS, TOM and MAZZARELLI, JJ.

TOM, Justice.

We affirm the Appellate Term and reject petitioner's contention that a rent-controlled tenant who has resided in the same apartment for 33 years and, over the course of the previous 9 years, paid her rent on the average of two weeks late, while accumulating absolutely no arrears, has committed a nuisance and, thereby, has forfeited her leasehold.

Respondent-tenant Angela Norwood, and her former husband John Norwood, commenced occupancy of Apartment 4F in the building designated as 444 East 52nd Street, New York, New York, on or about November 1, 1961 pursuant to a written lease agreement. The apartment building subsequently was converted to cooperative ownership, and respondent chose not to purchase the proprietary shares allocated to her unit, which continued to be subject to the City Rent Law (Rent Control) and the New York City Rent and Eviction Regulations. Petitioners are the successors-in-interest (collectively, the "landlord") to Peter Sharp, now deceased, who was one of the owners of the building as well as the holder of the unsold shares for respondent's cooperative unit.

A "Notice of Termination" was served by the landlord upon tenant asserting, inter alia, that the tenant engaged in a course of conduct pursuant to which she tendered rent payments in an untimely manner for a period including November 1990 through March 1992. The landlord thereafter commenced the underlying holdover proceeding.

The tenant moved to dismiss the proceeding, which relief was granted by Judge Fisher-Brandveen, then of the Civil Court. Judge Fisher-Brandveen held, inter alia, that only two nonpayment proceedings had been commenced in the prior fifteen years that the tenant had lived in the premises, and that the termination notice failed to indicate any arrearages.

The landlord appealed and the Appellate Term of the Supreme Court, First Department, unanimously reversed the order and reinstated the petition. The Appellate Term held that:

Chronic late payment and nonpayment of rent may constitute a nuisance warranting eviction if not adequately explained by the tenant.... Landlord's petition and the notice of termination ... set forth sufficient facts to state a cause of action for nuisance.... In reinstating the petition for trial, we express no view as to the ultimate disposition of the matter. (emphasis added)

The matter thereafter went to trial before Judge Arthur Scott, who, after trial, dismissed the proceeding, finding no evidence of willful, harmful or unjustified conduct on the part of the tenant that would rise to the level of a nuisance. The court, accepting the tenant's explanation that rent was paid late due to problems she was having with her alimony payments, stated:

Clearly, a woman who is entitled to moneys from her ex-husband by court order and fails to receive same in a timely fashion cannot be considered to have engaged in willful conduct as to warrant a nuisance when her rent is tendered late.

The landlord appealed, and in a split decision (Justices Stanley Parness and Edith Miller in the majority and Justice William P. McCooe dissenting), the Appellate Term affirmed Judge Scott's order. The majority held, inter alia, that the tenant's actions were not willful, unjustified or intended to harass landlord and "did not rise to the level of a nuisance which would warrant on [sic] eviction." The Appellate Term granted landlord's motion to appeal its decision and order.

The holdover petition at bar is predicated upon the ground that the tenant was "committing or permitting a nuisance", pursuant to New York City Rent & Eviction Regulations (9 NYCRR) § 2204.2(a)(2), by continually tendering late payment of rent.

In order to establish that tenant's untimely rent payments constituted a nuisance, the landlord must demonstrate that it "was compelled to bring numerous nonpayment proceedings within a relatively short period and that the tenant's nonpayment was willful, unjustified, without explanation, or accompanied by an intent to harass the landlord ..." (25th Realty Assocs. v. Griggs, 150 A.D.2d 155, 156, 540 N.Y.S.2d 434).

Since landlord is required to prove that they were compelled to bring numerous nonpayment proceedings to establish a nuisance, those proceedings must be shown to have been brought in good faith to collect outstanding rent and not as a pretense to meet the definition of nuisance for the purposes of bringing a holdover action.

In the case at bar, Judge Fisher-Brandveen, in dismissing the petition, found that the landlord commenced only two nonpayment proceedings within the prior fifteen years. The first action was brought in December 1991, and, based on the record, it appears that such proceeding was commenced shortly after the first of the month, purportedly to collect the December rent. This action was discontinued after tenant paid the December rent on December 19, 1991. Tenant asserts, and it is not disputed by landlord, that the December rent was paid before the petition was served. Since the nonpayment petition was served after rent was paid, landlord cannot be found to have been compelled to commence this action. The second action, which was commenced in February 1992, was never litigated because the wrong party was served. However, the February rent was paid on February 19, 1992. Landlord commenced the underlying holdover proceeding in March 1992.

The manner and timing in which those two proceedings were brought do not indicate a bona fide attempt by landlord to collect rent, but rather a woeful, transparent effort to bring this action within established caselaw regarding the number and immediacy of prior nonpayment proceedings needed for the purpose of bringing a holdover action based on nuisance. Therefore, the two prior nonpayment proceedings cannot serve as a predicate for the instant nuisance action, and the petition is dismissible on this ground.

In Greene v. Stone, 160 A.D.2d 367, 553 N.Y.S.2d 421, this Court remanded a chronic nonpayment proceeding to the Civil Court, which had previously dismissed the proceeding, after trial, on the grounds that petitioner had only brought three nonpayment proceedings in the previous three years. In so concluding, we held that "the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent ..." (id. at 368, 553 N.Y.S.2d 421).

It is clear that there is no "magic number" of prior proceedings required, as each case is sui generis. In 25th Realty Associates v. Griggs, supra, there were 11 nonpayment proceedings commenced within six years, with landlord prevailing in all the proceedings, and this Court reversed the grant of summary judgment and remanded the matter to give tenant an opportunity to explain his refusal to pay rent. In this matter, tenant has never refused to pay rent. The common thread which runs through these cases is that after reviewing the totality of the circumstances presented, a nuisance has been found to have been committed if it can be determined that the tenant chronically and unjustifiably, refused to pay the rent when due and that as a result, the landlord was compelled to bring numerous nonpayment proceedings within a relatively short period of time (Cf., Classic Props. v. Haight, NYLJ, June 15, 1993, at 21, col. 1).

During the trial of this action, tenant explained the reason for the late payment of rent and testified that she had moved into the apartment with her husband, but had been divorced in 1970 and, for a number of years following, the rent was paid to the landlord by her ex-husband's attorney. In 1988, the attorney stopped paying the rent and the tenant began to receive a correspondingly larger alimony check, which she used to pay the rent.

Tenant stated that the alimony check was due on the first of the month, as was the rent, but because the alimony check was often late, the tenant could not pay her rent on the first of the month. Further, the tenant maintained that because she was aware, through experience, that her former husband's checks did not always clear because of insufficient funds, she followed the practice of cashing the alimony check when she received it, buying a money order (which she always dated the first of the month), and paying the rent, in person, that same day at the landlord's management office. During the period upon which the Notice of Termination focuses, the rent was always paid in the month it was due and the tenant never carried a balance into the following month. The trial court credited tenant's testimony and no evidence has been presented by landlord which indicates otherwise.

The landlord's record indicates that during the 33 years tenant occupied the subject premises, she received 44 rent demands. The record further reflects that on average, the three-day notice was served on the 10th day of the month and, in some instances, rent demands were served when the rent was paid as little as 3 and 5 days late.

In viewing the totality of the circumstances presented, we conclude that the evidence at trial did not establish that the tenant's late payment of rent constituted a nuisance. The evidence herein does not indicate that the...