71 Misc. 2d 784 | N.Y. City Civ. Ct. | 1972
Each of these three tenants has occupied his apartment at 146 West 80 Street for several years. The rent
The tenants urge that, by reason of its delay in seeking payment, the landlord is now equitably estopped to collect the rent. They rely upon Midman Realty Corp. v. Kane (N. Y. L. J., Jan. 20, 1971, p. 19, col. 4 [Civ. Ct., N. Y. County]). But there the tenants had tendered the rent. Here they have not. Midman is therefore inapposite, in consequence of which these appear to be cases of first impression.
Equitable defenses may be raised in a summary proceeding (Real Property Actions and Proceedings Law, § 743) and the testimony before me suggests that the landlord’s sloth was calculated to make it impossible for the tenants to remit the amounts ultimately accumulated, thereby accomplishing their eviction without benefit of the certificate required by section 51 of the New York City Rent, Eviction and Rehabilitation Regulations. A suggestion is not a demonstration, however, and I am unable to find on the present record (developed, as always in summary proceedings, without the aid of the discovery devices available in other forms of civil litigation) that this was indeed the landlord’s motivation. Hence I conclude that the tenants have failed to make out their defense of equitable estoppel.
By no means does it follow that the landlord must have judgment. These cases raise another issue: the issue of the court’s responsibility to supervise the business before it.
Courts generally exercise solely the powers specifically assigned to them. Nevertheless, it is settled that inherent in the very power to act as a court is the further power to regulate litigation for the purpose of preventing abuses, correcting wrongs, and promoting the fair administration of justice. That is why a court may refuse to admit evidence improperly procured, McNabb v. United States (318 U. S. 332, 340 [1943]) or vacate a judgment obtained by fraud although in other circumstances the court would long since have lost jurisdiction, Papp v. Maffei (64 Misc 2d 739 [Civ. Ct., N. Y. County, 1970]), or dismiss a complaint where the plaintiff commits patent perjury. (DuBose v. Velez, 63 Misc 2d 956 [Civ. Ct., N. Y. County, 1970].)
I hold that, by its excessive delay, the landlord has forfeited the right to resort to summary proceedings. In my view, subdivision 2 of section 711 of the Real Property Actions and Proceedings Law says nothing to the contrary. It provides that “ the landlord may waive his right to proceed upon this ground [nonpayment of rent] only by an express consent in writing to permit the tenant to continue in possession.” Taken in context, this is merely a Statute of Frauds designed to prevent a tenant’s prevaricated assertion that the landlord orally waived the rent. It has no application to the present situation, where the tenants make no claim of waiver but rather I conclude that the landlord has perverted the device of summary proceedings.
Since I do not decide that the landlord has waived the accrued rent, this dismissal is without prejudice to an ordinary action by the landlord to collect it and to the assertion by the tenants of whatever defenses they may have, including the defense of equitable estoppel.
Finally, I point out that this decision does not apply to the rents becoming due after the landlord, by commencing these proceedings, evinced his interest in summary resolution of his claim against the tenants. It was agreed by counsel that those subsequently accrued rents would be in issue before me. I find that the landlord has never demanded them. (Real Property Actions and Proceedings Law, § 711, subd. 2.) Accordingly, to the extent that the petitions have been deemed amended to refer .to rents for the period from June 21,1972, ¡to September 11,