Sharp v. Norwood

OPINION OF THE COURT Tom, J. 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 nine 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 15 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 — 8 — 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 and 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 AD2d 155, 156). 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 15 years. The first action was brought in December 1991, and, based on the record, it appears that such proceeding was commenced shortly — 9 — 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 case law 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 AD2d 367), 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” (supra, at 368). It is clear that there is no "magic number” of prior proceedings required, as each case is sui generis. In 25th Realty Assocs. 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). — 10 — 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 three and five 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 tenant’s conduct was "willful, unjustified * * * or accompanied by an intent to harass the landlord” (25th Realty Assocs. v Griggs, supra, at 156) and, with regard to the fact that only two nonpayment proceedings were brought over the course of nine years, this simply does not warrant a finding of nuisance. Further, the two proceedings appear to have been brought as part of an attempt to bring this action within the definition of nuisance simply for the purpose of bringing this action. The landlord also contends that six nonpayment proceedings were commenced against the tenant over the course of the nine-year period, although it appears, as found by Judge — 11 — Fisher-Brandveen, that only two such proceedings were commenced. While we note that chronic late payment of rent may constitute a breach of a leasehold obligation, the instant holdover proceeding was not predicated upon such a breach. Rather, the underlying holdover petition is based solely on the ground that tenant committed or permitted a nuisance pursuant to section 2204.2 (a) (2) of the New York City Rent and Eviction Regulations and not upon the ground that tenant breached a leasehold obligation. It is quite probable that the landlord did not predicate this action upon a breach of a lease provision so as to avoid the remedial prescription of RPAPL 753 (4), which grants a 10-day stay for the tenant to cure the breach. By contrast, a nuisance found to be caused by chronic late payment of rent cannot be cured (see, 301 E. 22nd St. Co. v Lampert, NYLJ, July 2, 1984, at 13, col 5 [App Term, 1st Dept]). Moreover, while a nuisance based on chronic late payment of rent also constitutes a breach of a substantial obligation of the lease, the type and degree of evidence required to establish a nuisance differs from the proof needed to show a breach of a leasehold obligation. Since the landlord chose to proceed by way of a nuisance in this proceeding, they are bound by the degree of proof needed to establish such claim. As stated above, to prove a case grounded upon a nuisance, the landlord must prove more than a mere pattern of late payment of rent, and in this case, landlord has failed to meet their burden of proof. In addition, it is a well-settled equitable principle that the courts do not look favorably upon the forfeiture of leases (Harar Realty Corp. v Michlin & Hill, 86 AD2d 182, 188, lv dismissed 57 NY2d 607, 836; 57 E. 54 Realty Corp. v Gay Nineties Realty Corp., 71 Misc 2d 353, 354; 220 W. 42 Assocs. v Cohen, 60 Misc 2d 983). Under the factual circumstances of this case, it would be inequitable to permit the landlord to forfeit respondent’s rent-controlled tenancy and direct the eviction of this elderly tenant from the premises she occupied for over 33 years. We find this to be especially so during a time when affordable housing accommodations are a scarce commodity in this City. The landlord, as well as the dissent, make much of the fact that the tenant "failed to pay her rent for months at a time”, but, in fact, document only 11 times over the course of a 33-year, or 396-month, rental history where the rent was late 30 days or more with the last occurrence in July 1989. In those instances, nonpayment proceedings were not commenced and — 12 — the rent was eventually paid shortly thereafter. Since July 1989, tenant has paid her rent within the month that it was due. Finally, while the landlord and the dissent characterize the tenant’s defense as undocumented, the landlord’s own case was certainly not better documented, or presented, on crucial points. By way of example, the landlord admittedly never issued rent receipts for the tenant’s money orders, in clear violation of Real Property Law § 235-e. Although the tenant’s money orders were always dated the first of the month, regardless of when she tendered the rent, the landlord placed no evidence before the court to establish with certainty when the tenant paid the rent within any given month. The rent payment history compiled by the landlord’s employee, from records not in evidence, only indicates the date the landlord deposited the funds, not the date the rent was paid. There was testimony that rent was usually deposited the next day unless it was a weekend, or unless payment was made very early in the day. Clearly then, no one can say for certain how late the rent was, despite the fact that the basis of this proceeding is that the tenant paid her rent substantially after it was due. In conclusion, tenant is a long-term (33-year) resident of her apartment who has paid the rent in the month it was due with relatively few exceptions. Further, there has been no evidence presented that the tenant intended to harass or injure the landlord or that the landlord was, in fact, in any way prejudiced by payment after the date reserved in the lease. Nor has it been demonstrated the landlord was "compelled” to bring repeated summary proceedings for nonpayment of rent (i.e., to force tenant to pay the rent) (Ocean Farragut Assocs. v Sawyer, 119 Misc 2d 712, 713 [emphasis added]; see also, 25th Realty Assocs. v Griggs, supra, at 156, citing numerous cases). Therefore, we cannot conclude that the tenant’s conduct was so harmful or willful as to warrant forfeiture of this long-term rent- controlled tenancy. Accordingly, the order of the Appellate Term, First Department, entered February 6, 1995, which affirmed the order of Civil Court, New York County (Arthur Scott, J.), entered on or about May 28, 1993, dismissing the underlying holdover proceeding, is affirmed, without costs.