60 N.Y.S.3d 644
N.Y. City Civ. Ct.2017Background
- Landlord commenced a holdover eviction alleging tenants (including Wilner Dubresil) repeatedly paid rent late, citing 26 nonpayment proceedings from 1999–2015 and several five-day rent demands.
- Dubresil moved for partial summary judgment attacking four categories of alleged prior conduct: (1) many proceedings are older than six years (statute of limitations); (2) rent demand letters that did not lead to proceedings are irrelevant; (3) uncalendared/unpursued proceedings should be disregarded; and (4) some cited proceedings predate the lease at issue. He alternatively sought discovery or a stay to obtain court files.
- Landlord moved for an order directing payment or deposit of use and occupancy pendente lite under RPAPL 745.
- The court held that allegations based on rent due before the lease date (May 2004) were dismissed; granted limited discovery (landlord to produce court-file documents it possesses within 14 days); denied stay without prejudice; denied petitioner's request for use and occupancy because statutory prerequisites were not met.
- The court denied Dubresil’s statute-of-limitations and most other summary-judgment arguments, finding the limitations issue is an affirmative defense and older proceedings may be admissible as evidence of a continuing pattern of chronic late payment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of six-year statute of limitations to prior nonpayment proceedings | Landlord: earlier proceedings may be used to show continuing pattern of late payment; statute of limitations does not categorically bar consideration | Dubresil: proceedings older than six years must be excluded as time-barred | Court: statute of limitations is an affirmative defense; older proceedings need not be automatically excluded and may be considered as evidence of a continuing breach; denial of summary judgment on this ground |
| Relevance of rent demands and unpursued/un‑calendared proceedings | Landlord: issuing demands and commencing proceedings (even if not adjudicated) supports chronic nonpayment claim | Dubresil: demands and unpursued matters are irrelevant and should be struck | Court: evidentiary question not resolved on summary judgment; will not strike allegations now; preserved for trial |
| Proceedings predating the lease | Landlord: all cited conduct supports breach of lease obligation | Dubresil: events before lease formation cannot support breach of that lease | Court: dismisses portion of petition based on nonpayment predating May 2004 lease |
| Use and occupancy pendente lite under RPAPL 745 | Landlord: seeks deposit/payment of use and occupancy now | Dubresil: opposes | Court: denies request because statutory timing/adjournment conditions were not met |
Key Cases Cited
- Sharp v. Norwood, 89 N.Y.2d 1068 (Court of Appeals) (distinguishes nuisance proof from proof of breach of substantial obligation and recognizes repeated rent demands/nonpayment proceedings can support a chronic-nonpayment eviction theory)
- Adam’s Tower Ltd. P’ship v. Richter, 186 Misc. 2d 620 (App. Term) (repeated nonpayment proceedings may establish chronic rent delinquency)
- 326-330 E. 35th St. Assocs. v. Sofizade, 191 Misc. 2d 329 (App. Term) (characterizes chronic delinquencies as cumulative pattern evidence)
- Riverton Assocs. v. Garland, 13 Misc. 3d 133 (App. Term) (upheld landlord judgment where a decade-long pattern of nonpayment proceedings supported chronic nonpayment claim)
- Terrilee 97th St. LLC v. Alaharzi, 53 Misc. 3d 151 (App. Term) (considered multi-year pattern of nonpayment proceedings in assessing chronic nonpayment claim)