119 Misc. 2d 492 | N.Y. City Civ. Ct. | 1983
OPINION OF THE COURT
Petitioner Fowler Court Tenants, Inc., moves for an order striking respondents’ jury demand, ordering respon
Respondents assert a number of grounds to oppose the motion to strike the jury demand. They argue that the lease is terminated and accordingly that the jury waiver clause therein is no longer in effect. They assert that the court is without jurisdiction in this matter because the action does not fall within RPAPL 711 authorizing the use of summary proceedings; they further point out that even if it did fall within the ambit of that section, a summary proceeding in any event would not be the appropriate remedy for the landlord herein since the action is in essence one of ejectment. They also assert that by reason of the action being in the nature of an ejectment, this case falls within the ambit of Seventh Amendment cases requiring a jury trial. In addition, they argue that the jury waiver clause in the lease cannot be relied on by reason of the absence of written authorization of the petitioner’s agent who signed the lease pursuant to subdivision 2 of section 5-703 of the General Obligations Law as well as by the reason of the waiver not being knowing and intentional. Lastly, they assert that the counterclaims, being in the nature of personal injury, take the case out of the ambit of the jury waiver clause pursuant to section 259-c of the Real Property Law.
This court will firstly address itself to the argument that the respondents are entitled to a jury trial by reason of the alleged termination of the lease. The main action herein is a holdover proceeding commenced by reason of an alleged violation of substantial obligations of the tenancy as contained in paragraph “16” of the lease prohibiting subletting without the landlord’s prior written consent and paragraph “2” requiring occupancy by the tenants only. Paragraph “26” of the lease contains the clause whereby the parties agreed to waive trial by jury “on any matters whatsoever arising out of or in any way connected with this lease”. Clearly the matters involved in this proceeding arise out, of the lease. It is settled case law that where a
In order for the court to examine the issue of its jurisdiction, it is necessary to determine whether an expiration or a termination of the lease is involved herein and if the action is in the nature of an ejectment. Respondents argue that this court is without jurisdiction pursuant to RPAPL 711 by reason of their not being occupants of a rooming house. It is the court’s position that RPAPL 711 does not limit the use of summary proceedings to cases involving rooming house occupants but merely requires that such proceedings be used in order to remove such occupants from possession. On the contrary, RPAPL 711 lists a number of circumstances wherein the use of summary proceedings are permitted; among them, RPAPL 711 (subd 1) states that a special proceeding may be maintained, under article 7 upon the ground of a tenant continuing in possession “after the expiration of his term” without permission of the landlord. The court finds that this action falls within the above category as an expiration for reasons discussed below and accordingly that it does have jurisdiction. Respondents further argue that even if this action does technically fall within RPAPL 711, it is in essence a short-form action in ejectment “available by dint of common practice, not statutory authority” and therefore is within the ambit of the Seventh. Amendment guarantee of a jury trial. It is the court’s position that this matter is not in the nature of an ejectment for the reasons also stated below.
At the outset, it is important to distinguish between a condition and a conditional limitation because of the difference in remedies available to the landlord for regaining possession pursuant to each. Upon breach of a condition, a landlord may have the right to enforce the forfeiture of a leasehold by re-entry which as a general rule means ejectment. However in the case of a conditional limitation, the lease upon the occurrence of the stipulated event expires; if
This case was commenced subsequent to the service of the requisite notices pursuant to paragraph “17” of the lease. Accordingly, this court finds that these notices were conditional limitations service of which created an expiration rather than a termination of the lease, as a result of which a summary proceeding became available to the landlord as his remedy for possession pursuant to the statutory authority of RPAPL 711. In addition, by reason of this case being found not to be in the nature of an ejectment, the court finds that it does not fall within the ambit of Seventh Amendment cases and therefore does not require a trial by jury.
To further support their opposition, the respondents assert that the lease may not be used to bar them from asserting their right to a jury trial by reason of the absence of written authorization for petitioner’s agent to enter into the lease pursuant to subdivision 2 of section 5-703 of the
As to the argument that the jury waiver was not knowing and intentional by reason of the waiver language being “buried in the latter half of the lease” and being written in language only comprehensible to a landlord-tenant lawyer, this court notes that the standard lease form was used. It is settled case law that a jury waiver clause in a lease is generally valid and binding between parties and will bar a trial by jury in litigation covered by the provisions of the lease (Waterside Holding Corp. v Lask, 233 App Div 456). The respondents have failed to demonstrate to the court’s satisfaction any reason for the court’s not applying the general rule to this case. Accordingly, the court finds this jury waiver clause valid and binding.
Lastly respondents assert that the counterclaims in their answer fall within the ambit of personal injury claims as defined in section 37-a of the General Construction Law and accordingly the jury waiver clause is void pursuant to section 259-c of the Real Property Law which nullifies jury waivers where applied to personal, injury actions. The definition of personal injury in section 37-a of the General Construction Law includes “actionable injury to the person either of the plaintiff, or of another.” Respondents argue that their counterclaims sound in abuse of process, mental distress and fraud and accordingly fall within section 259-c of the Real Property Law. Respondents’ first counterclaim is for petitioner’s failure to maintain premises in good
In Riverbay Corp. v Lattimore (98 Misc 2d 610), where the landlord moved to strike the tenants’ jury demand, the tenant also contended that his counterclaim, alleging damages for petitioner’s having brought the main action in bad faith in violation of a prior settlement, raised issues within the waiver prohibition of section 259-c of the Real Property Law. In that case (p 612) the court severed the counterclaim with leave to prosecute in a plenary action in the regular part of the Civil Court, and granted the motion to strike the jury demand with respect to the balance of the proceeding. The court supported its decision with a point made in 1625 Emmons Ave. Owners v Abbamonte (NYLJ, March 20,1978, p 14, col 6) that “[n] either party may avoid its contractual commitment to waive a jury trial by the simple expedient of combining a cause of action in tort, whether real or spurious.” It is the court’s position herein as well that respondents should not be permitted to avoid their contractual obligation by their use of'that device. Accordingly, the court directs that the respondents’ counterclaims be severed with leave to prosecute them in a plenary action in the regular Civil Court part. In addition, the court hereby grants the motion to the extent of striking respondents’ jury demand.
The court denies the portion of the motion requesting use and occupancy, that issue to be resolved at trial.
Lastly, this court denies the portion of the motion seeking to disqualify the firm of Fischbein, Olivieri, Rozenholc and Badillo from representing all of the respondents by reason of petitioner’s failure to demonstrate to the court’s satisfaction how such representation constitutes an inherent conflict of interest.