LANDLORD/TENANT UPDATE
In Parkchester Apartments Co. v. Lewis1, the petitioner sought to recover $457.50 in additional fees, which fees the petitioner explained to the court consisted of $100 for a notice sent to the tenant in November, $100 for a notice sent to the tenant in December, $97.50 in late fees and $160 in legal fees for the preparation of a stipulation of settlement.
The petitioner claimed that late charges are recoverable if the lease makes provision therefore and specifically allows for their collection as “additional rent”. Specifically, the petitioner’s lease provided for the payment of a late fee of five (5%) percent per month if rent is not received by the 10th day of the month and defined the late fee as “additional rent”.
The court agreed with the petitioner but, in dismissing petitioner’s claim for late fees, relied on an Appellate Term case which held a lease provision identical to that contained in the petitioner’s lease unenforceable as excessive and not reasonably related to the harm caused the landlord by the late payment.2
As to the $200 charges for service of two notices, the court held that service of one of the notices was unnecessary and therefore dismissed $100 of the charges therefor. As to the remaining $100 charge, the court held that a hearing was necessary to determine whether the charge was reasonably related to the actual costs incurred by the petitioner therefor.
Finally, the court found no provision in the lease for the payment of legal fees as “additional rent” and dismissed the petitioner’s claim for $160.
In St. James Court LLC v. Booker3, the court revisited the requirements of a proper rent demand.
In Booker, the petitioner had served a rent demand which indicated a lump sum due for the period February, 1996 through November, 1996. The court held that the notice was not in accordance with the provisions of the Real Property Actions and Proceedings Law §711(2) because it failed to apprise the respondent of the correct amount due for each month giving no indication of how the petitioner arrived at his figures. Specifically, the court held, that “[b]y failing to give a clear calculation of the rental arrears, the respondent is uninformed as to how he should proceed in order to avoid litigation....”
The statute, the court pointed out, requires that a rent demand be clear, unequivocal and provide the tenant with actual notice of the amount due. While a lump sum may be acceptable when giving notice of “miscellaneous” amounts due, such is not the case with rent due.
Inasmuch as a proper rent demand is a jurisdictional prerequisite to maintaining a summary proceeding, the court dismissed the petition.
In Bonsignore v. De Bove Inc.4, a commercial non-payment proceeding, the rent demand had included items other than rent. The court stated that while, in commercial matters, the charges which can be included in a rent demand can include ancillary debts such as legal fees and costs, if the lease defines those items “additional rent”, the rent demand may not include a debt under a settlement agreement as rent or the inclusion of security as rent.
The court held that it had no jurisdiction to adjudicate a monetary claim other than that for rent allegedly due. Holding that it was improper for the petitioner to include such amounts in the rent demand, the court dismissed the petition.
In Triolo v. Sasso5, a summary holdover proceeding, the respondents filed for bankruptcy under Chapter 7 the day before they were to appear in court. The next day, the parties appeared in court and entered into a stipulation whereby respondents agreed to a final judgment of possession with immediate issuance of the warrant, execution stayed several months.
The question before the court was whether the respondents were in possession of any property or lost their interest in the apartment by having entered into the stipulation.
While the issuance of a warrant of eviction annuls the landlord/tenant relationship, the court held, the stipulation in Triolo was made prior to the issuance of the warrant of eviction. When a warrant is issued after a bankruptcy filing, the proceeding must be stayed until the resolution of the bankruptcy or until the stay is lifted. Even though the respondents stipulated to vacate their apartment, they still maintained a property interest in the apartment since the filing of the bankruptcy petition had already stayed all proceedings from continuing.
Time is everything.
In Triborough Bridge and Tunnel Authority v. Aledro Development Corp.6, a summary holdover proceeding, the petitioner commenced the proceeding against respondent Aledro Development Corporation, a dissolved entity, and four undertenants. Three undertenants were partners in a law firm occupying the premises as well as principals of Aledro. Three of the undertenants had also personally executed a guarantee of $25,000 for rent on behalf of Aledro. After the lease between the undertenants and Aledro expired, the undertenants remained in possession without paying rent or use and occupancy.
During the course of the litigation, the undertenants moved for summary judgment on the grounds that the court lacked subject matter jurisdiction because they had allegedly vacated the premises and because the lease did not name them individually. The motion was denied because it was found that the undertenants had been in possession and that as non-tenant third parties in possession, use and occupancy may be awarded on the theory of quantum meruit.
In 110-20 71st Road Apts. Inc. v. Oberlander7 , a residential holdover proceeding, the respondents sought dismissal of the proceeding based upon petitioner’s acceptance of co-operative maintenance subsequent to service of the notice of termination and prior to the commencement of the action.
The petitioner’s bookkeeper testified that she received the maintenance check and deposited the check. The holdover proceeding was commenced on December 4 and on December 15 the management company returned a “replacement check” to the respondents explaining that the check had been cashed inadvertently through a lock box, which, in light of the bookkeeper’s testimony, was not true. Inasmuch as the check was not processed through a lockbox system and, therefore, not “inadvertent”, the court held that the acceptance of the rent after the service of a notice of termination and prior to the commencement of a summary proceeding vitiated the notice of termination.
Without the service of the predicate notice of termination, the court lacked jurisdiction and the petition was dismissed.
In Homestead Equities Inc. v. Washington8, a summary holdover proceeding, the petitioner sought a default judgment against respondent after respondent failed to appear in court on the trial date.
The court held that on a motion for default judgment the court is obliged to review the sufficiency of the petition and whether proper predicate notices were served. Finding that the petition was jurisdictionally defective for a variety of reasons and that the notice of termination was also defective, the court denied petitioner’s motion for default judgment.
Similarly, the court in Pilo v. Tal9 also reviewed the petitioner’s pleading, found it deficient and denied the petitioner’s motion for default judgment.
In One East River Place Realty Co. LLC v. Avent10, a residential non-payment proceeding, the respondent shared the premises with his girlfriend. The girlfriend was not named in the lease. The respondent ended his relationship with his girlfriend and, on the advice of counsel, moved out of the premises after unsuccessfully attempting to oust the girlfriend (including changing the locks).
At the time that the respondent vacated, he changed the locks, again, and delivered the keys to the superintendent. The superintendent walked the premises with the respondent and was advised that items that remained within, including a mattress, belonged to the former girlfriend. The superintendent gave the keys to the managing agent for safekeeping with instructions to let no one into the apartment. Shortly thereafter, the former girlfriend returned to the building, and, somehow, had a locksmith change the locks to permit her reentry to the premises. She remained in the premises for an additional five months without paying use and occupancy.
The petitioner commenced a non-payment proceeding seeking rent for the period that the former girlfriend remained in the premises. The respondent contended that he delivered the apartment to the superintendent and should not be responsible for the additional five months’ rent.
The court held that the tenant had a responsibility to remove all undertenants and that, having left the mattress and miscellaneous belongings of the former girlfriend, the respondent had not effectively delivered possession releasing him of the obligation to pay additional rent. Judgment for the petitioner.
In Matter of Corham Artificial Flower Co. v. State of New York11, the City of White Plains Building Department condemned a building occupied by the State of New York. The State of New York, after appropriately terminating its lease, vacated the premises leaving behind 50 or 60 cartons of forms stored on the lower level of the building. Petitioner claimed that the cartons left behind constituted continued possession subjecting the State of New York to use and occupancy after termination of its lease.
The court held that whether the leaving of property on a leased premises will constitute continued possession by the tenant requires that the court consider (i) the size and nature of the property leased; (ii) the amount paid as rent; (iii) the value of the real property; (iv) the value of the personal property left behind; (v) the intent with which such property was left; and (vi) all the other facts and circumstances surrounding the transaction.
Given the size of the premises (30,000 square feet) and the impact that the 50 or 60 cartons had on the entire premises and their lack of value, the court held that the tenant clearly did not intend continued occupancy. The respondent’s motion to dismiss was granted.
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1 N.Y.L.J., Apr. 22, 1998 at 27, col. 3 (Apr. 22, 1998 Bronx Civ. Ct.).
2 The petitioner’s lease provided for a five (5%) percent per month late fee if rent was not received by the 10th day of the month when it was due. The court cited 67-25 Dartmouth St. Corp. v. Silbermann II, N.Y.L.J., Aug. 11, 1993 at 24, col. 5 (App. Tm., 2nd and 11th Dep’ts).
3 N.Y.L.J., Apr. 22, 1998 at 28, col. 5 (Apr. 22, 1998 Kings Civ. Ct.). 4 N.Y.L.J., Jun. 24, 1998 at 26, col. 5 (Jun. 24, 1998 New York Civ. Ct.). 5 N.Y.L.J., Aug. 12, 1998 at 26, col. 2 (Aug. 12, 1998 Kings Civ. Ct.). 6 N.Y.L.J., Jun. 3, 1998 at 26, col. 5 (Jun. 3, 1998 New York Civ. Ct.). 7 N.Y.L.J., May 6, 1998 at 33, col. 2 (May 6, 1998 Queens Civ. Ct.). 8 N.Y.L.J., Apr. 1, 1998 at 29, col. 3(Apr. 1, 1998 Kings Civ. Ct.). 9 N.Y.L.J., Apr. 15, 1998 at 27, col. 2 (Apr. 15, 1998 Kings Civ. Ct.). 10 N.Y.L.J., Apr. 8, 1998 at 30, col. 4 (Apr. 8, 1998 New York Civ. Ct.). 11 N.Y.L.J., May 27, 1998 at 31, col. 1 (May 27, 1998 NYS Court of Claims).