By: admin//January 10, 2016
By: admin//January 10, 2016//
Monroe County Court Judge Christopher S. Ciaccio submitted the following decision on what he describes as “a simple landlord-tenant issue” as of interest to readers of The Daily Record:
COUNTY COURT — STATE OF NEW YORK — COUNTY OF MONROE: ORDER AND DECISION
Greythorne Construction Corp. v Robert Allen and Michelle Allen
Index No. 2015-10627
In this summary proceeding brought pursuant to Article 7 of the Real Property Actions and Proceedings Law, petitioner seeks 1) judgment for unpaid rent and 2) a warrant of eviction. Service of the petition was complete on September 30, 2014 and the petition was returnable on October 6, 2015. Petitioner appeared with Robert D. Hooks, Esq., of counsel to Woods Oviatt. Respondents appeared personally as well and were represented by Nicole Cerrito, Esq. For the reasons below, the petition is granted.
The following facts are uncontroverted: Respondents entered into a written lease for a residence at 26 Greythorne Hill, Pittsford, New York (“Premises”) for a term ending on October 31, 2015, and a monthly rent payment of $7,000.00.
Petitioner did not receive the August rent payment, and so by letter dated September 3, 2014, sent written notice of the default demanding payment of $22,050.00, representing September’s unpaid rent, accelerated rent for September and October, and late fees. Under the terms of the lease the respondents then had ten days to cure the default. They did not, although on or about September 22 they sent a check for $7,000.00, which bounced after respondents issued a stop payment.
An email exchange between the parties was marked and received as Court Exhibit 1. Stacey Spall Smith, owner of Greythorne Construction, wrote to demand that all personal belongings needed to be removed by September 22.
Respondents wrote back asking if she was requesting them to remove all of their belongings before the end of the lease.
Respondents raised as an affirmative defense that the petitioner “illegally evicted the respondents through ‘self-help’ eviction.” At the hearing their attorney submitted, by way of an offer of proof, that petitioner changed the utilities and otherwise prevented them from having the benefit of their tenancy. Petitioner countered that she entered the premises unsure that the respondents were still living there, and found most (but not all) belongings and personal effects gone and the keys left for her on the kitchen counter.
The Court finds that neither the denials set forth in the respondent’s Answer nor the affirmative defenses raise a triable issue of fact.
As respondent is clearly in default on its rent obligation for at least August, the only possible issue is whether respondents were denied the benefit of the tenancy because of petitioner’s “self-help” eviction.
A landlord may, under certain circumstances, utilize self-help to regain possession of residential premises. Pine Hill Associates v. Malveaux, 93 Misc2d 63, 64, 403 NYS 2d 398, 399 (App. Term 1978); Fults v. Munro, 202 N.Y. 34, 95 NE 23; 2 Rasch, N.Y. Landlord and Tenant 2d ed., s 734.); See also Sol De Ibiza, LLC v. Panjo Realty, Inc., 29 Misc3d 72, 75-76, 911 N.Y.S.2d 567, 569-70 (App. Term 2010); citing Liberty Indus. Park Corp. v. Protective Packaging Corp., 43 AD2d 1020, 351 NYS2d 944 , affg. 71 Misc2d 116, 335 NYS2d 333 ).
Here, the circumstances were met. The lease at paragraph 10 allows “immediate possession” upon a default. The petitioner/landlord served a written demand for payment of rent, there is no allegation that entry was not made peaceably, and tenant is in fact in default.
Accordingly, the Court finds that the respondents are in default of the lease obligations, notice has been timely given, and the Petition is granted in all respects, including possession of the premises. Petitioner is directed to submit a final judgment amount plus costs and attorney’s fees, as well as a warrant of eviction.
Dated: October 20, 2015, Rochester, NY
HON. CHRISTOPHER S. CIACCIO
Monroe County Court Judge