Century Apartments Associates, Petitioner, v. JOHN DOE JANE DOE (2026)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion for summary judgment and related relief (seq. 1) and respondent's cross-motion to dismiss and/or for summary judgment (seq. 2):

Papers Numbered

Notice of Motion & All Documents Annexed 1 (NYSCEF #12-25)

Notice of Cross-Motion & All Documents Annexed 2 (NYSCEF #26-36)

Affirmations in Opposition and in Further Support 3 (NYSCEF #39-47)

Upon the foregoing cited papers, the decision and order on petitioner's motion and respondent's cross-motion, consolidated for determination herein, is as follows.

PROCEDURAL HISTORY

This summary holdover proceeding was commenced in April 2025. The petition alleges that the subject premises is subject to the City Rent Law (rent control). The 30-day notice of termination that serves as the predicate for this proceeding alleges that respondent violated a substantial obligation of her tenancy based on "chronic late and nonpayment of rent." Respondent Miranda Winston ("respondent") appeared through counsel and interposed an answer on April 24, 2025. Following initial adjournments, petitioner made a motion for summary judgment and respondent later cross-moved for dismissal and/or summary judgment. The court heard argument on both motions on December 4, 2025.

ON LANGUAGE

The court notes at the outset that "chronic nonpayment" is a problematic term that should probably be retired. The word "chronic" dates to the early 17th century and initially applied solely to diseases and similar maladies: "Lasting a long time, long-continued, lingering, inveterate; opposed to acute." (Oxford English Dictionary, chronic [https://www.oed.com/dictionary/chronic_adj?tl=true] [Emphasis in original]). A more general meaning of something being "continuous [or] constant" materialized in the 19th century, but the word retained a negative connotation, as the colloquial usage implied "a vague expression of disapproval: bad, intense, severe, objectionable[.]" (Id.). As applied to summary eviction proceedings, the concept of "chronic nonpayment" appears to date to the 1980s. The first reported New York appellate decision using the term that this court could locate was in the context of a commercial holdover proceeding (see Azizfard Trading Trading Co. v 5th Avenue Bagel Corp., NYLJ, January 20, 1989 at 25, col 1 [App Term, 1st Dept 1989]). When the concept was applied to residential tenancies, appellate courts initially regarded "chronic" nonpayment as being a curable default, specifically holding that a contrary position would be against public policy (61 East 72nd Street Corp v Zimberg, 161 AD2d 542, 542 [1st Dept 1990]; 205 West End Avenue Owners Corp. v Adler, 1990 NY Misc LEXIS 786 [App Term, 1st Dept, January 2, 1990]).

When the concept reached the Court of Appeals in Sharp v Norwood, 89 NY2d 1068, 1069 [1997], the Court rejected a claim that "chronic tardiness" in paying rent, standing alone, constituted a nuisance under the New York City Rent and Eviction Regulations (governing rent- controlled tenancies). To constitute a nuisance, the petitioner would have been required to "establish that [the] respondent's conduct 'interfere[d] with the use or enjoyment' of their property." (Sharp, 89 NY2d at 1069 [citing Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568 [1977]]). In passing, however, the Court endorsed the possibility of maintaining a proceeding based on a breach of a "substantial obligation" of the tenancy based on "chronically late rental payments." (Sharp, 89 NY2d at 1069). Thus, in the wake of Sharp, the vast majority of "chronic nonpayment" proceedings have been brought under "breach of substantial obligation" claims, rather than nuisance. As the Court of Appeals has elsewhere held, "nuisance is a continuous invasion of rights[.]" (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003]). Thus, while a repeated failure to pay rent will seldom if ever constitute a nuisance, the suggestion of objectionable conduct that the term "chronic nonpayment" connotes has endured (see Adam's Tower Ltd. Partnership v Richter, 186 Misc 3d 620, 622 [App Term, 1st Dept 2000] ["A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency."] [Emphasis added]).¹

Although temporary financial instability is a cause of some instances of rent nonpayment, a more systemic issue affecting both landlords and tenants is the proliferation of "cost-burdened" households whose housing costs exceed 30% of their income (see Nearly Half of Renter Households Are Cost-Burdened, Proportions Differ By Race, September 12, 2024, US Census Bureau [https://www.census.gov/newsroom/press-releases/2024/renter-households-cost-burdened-race.html]). In 2021 in New York City, a noteworthy 53% of households were cost-burdened (see The Cost of Living in New York City: Housing, Office of the New York State Comptroller, Report 17-2024, January 2024 [https://www.osc.ny.gov/files/reports/osdc/pdf/report-17-2024.pdf]]). Undoubtedly, intentional rent withholding, including for the purpose of asserting a breach of habitability defense (see generally Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]), accounts for a certain portion of nonpayment cases, but the matter-of-fact condition of insufficient income to meet housing costs is a common driver of nonpayment filings.² While rent-regulated housing "provides assistance to a specific segment of the population that could not afford to live in New York City without [it]" (Matter of Santiago-Monteverde, 24 NY3d 283, 290 [2014]), tenants in such housing are not immune to the larger economic forces nor the overarching issue of rents outstripping incomes, which indeed has driven legislation for decades:

"Throughout the 1950s and 60s, New York City took charge of its rent-controlled housing, easing wartime-like rent control laws as it grew more prosperous and asmore housing was built. However, by 1969, the City's housing crisis was once again dire . . . [The Vietnam] War, once again, led to a rapid escalation in New York City rents, which encouraged the City to enact the Rent Stabilization Law of 1969 (RSL). That local law groundwork for New York's rent stabilization scheme . . . first passed as the Emergency Tenant Protection Act of 1974 (L 1974, ch 576) and subsequently amended in 1983, 1993, 1997, and again in 2019." (Matter of Regina Metro., Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 395-396 [2020, Wilson, J. dissenting]).

Against this complex background, while recurring nonpayment, resulting in the filing of multiple cases, continues to be recognized as a viable cause of action in the residential context (see 924 W. End Ave., Inc. v Kaplan, 2026 NY Slip Op 50923[U] [App Term, 1st Dept 2026]; 31-67 Astoria Corp. v Cabezas, 55 Misc 3d 132[A], 2017 NY Slip Op 50432[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the opprobrium that accompanies the term "chronic nonpayment," implying, as it does, a malady of some nature, is both outdated and unfounded. This assessment is not idle but instead reflects an evolving understanding of legal terminology and the mandate to eliminate biased language from legal writing (see Hon. Anthony Cannataro, Forward to New York Law Reports Style Manual, 2022 Edition ["The 2022 revisions place increased emphasis on the vital importance of bias-free and gender-neutral writing in order to ensure that all participants in our justice system are represented fairly and respectfully."]).³

DISCUSSION/CONCLUSION

Turning to the particulars of this proceeding, petitioner alleges in the predicate 30-day notice that respondent "chronically, unjustifiably, continually, and almost continuously" failed to pay her rent, which resulted in 7 nonpayment proceedings commenced between 2017 and 2023. Petitioner acknowledges that the full amount of rent, sometimes with legal fees, was paid by respondent at the conclusion of each case, and that conditions in need of repair were alleged as a defense in one of the proceedings. In support of its motion for summary judgment, petitioner annexes the pleadings, certified deed and related ownership documents, New York State DHCR (Division of Housing and Community Renewal) Maximum Base Rent Orders of Eligibility, a Multiple Dwelling Registration, an affirmation from petitioner's general partner's managing agent, and a rent ledger. Petitioner argues that it has met its prima facie burden of demonstrating a breach of a substantial obligation of respondent's tenancy and that respondent cannot establish any defense. In its cross-motion and in opposition to petitioner's motion, respondent asserts that petitioner has not made out a cause of action and asserts defenses, including lack of personal jurisdiction.

On a motion for summary judgment, "the proponent . . . must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact[.] . . . Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]).

Upon due consideration of the papers, the court finds that issues of material fact exist that preclude summary judgment in either party's favor. As a rule, "the entire circumstances surrounding the alleged withholding of rent" are to be considered in a holdover proceeding based on recurring nonpayment (Greene v Stone, 160 AD2d 367, 368 [1st Dept 1990]). Thus, there is no "magic number" of prior nonpayment proceedings that is considered dispositive (Id.). Here, the court finds salience in the substantial length of respondent's rent-controlled tenancy, which dates to the 1980s, respondent's alleged medical conditions affecting her income during the time period when the relevant nonpayment proceedings occurred, and more stable payment history thereafter to controvert petitioner's contention that it is entitled to summary judgment (see Time Equities Assoc., LLC v McKenith, 66 Misc 3d 140[A], 2020 NY Slip Op 50128[U] [App Term, 1st Dept 2020]).⁴

Nonetheless, the facts alleged in the predicate notice and petition are sufficient, at a minimum, to make out a cause of action. (see Kaplan, 2026 NY Slip Op 50923[U], *1; Ludor Props., LLC v Brooks, 2011 NY Slip Op 52125[U], *1 [App Term, 1st Dept 2011]; see also Oxford Towers Co., LLC v Leites, 41 AD3d 144 [1st Dept 2007]). Additionally, the issue of whether any of the proceedings listed in the predicate notice are barred from consideration under the statute of limitations (generally understood to be 6 years under a theory of breach of contract in these proceedings) cannot be summarily determined and should be developed at a trial on the merits (see Flatbush Bldrs., Inc. v Dubresil, 57 Misc 3d 456, 460-461 [Civ Ct, Kings County 2017, Weisberg, J.]).

Nor does the court find that respondent has set forth a basis for dismissal based on lack of personal jurisdiction. A valid affidavit of service creates a presumption of proper service and a viable challenge to service requires a "sworn nonconclusory denial" to warrant a traverse hearing (NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]). The affidavit of service for the pleadings by affixing and mailing after attempts on April 14, 2025 at 6:36 PM and April 15, 2025 at 11:17 AM. The statements in the affidavit of service describe facially-proper conspicuous place service pursuant to RPAPL § 735(1) (see Eight Assocs. v Hynes, 102 AD2d 746 [1st Dept 1984], affd 65 NY2d 739 [1985]). Respondent disputes service in her answer but the denials of "reasonable application" and affixing are conclusory and insufficiently detailed to warrant dismissal or a traverse hearing (cf. 309 W. 109th St. Corp. v Davidson, 87 Misc 3d 136[A], 2025 NY Slip Op 52025[U] [App Term, 1st Dept 2025]).

For each of these reasons, both petitioner's motion and respondent's cross-motion are denied. The proceeding will be restored to the Part D calendar for all purposes, including trial transfer, on August 7, 2026 at 9:30 AM. This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: June 23, 2026

Queens, New York

HON. CLINTON J. GUTHRIE, J.H.C.

FOOTNOTES

1.   The court notes that in Richter, the Appellate Term also held that "chronic" nonpayment could not be cured in the residential context, reversing course on the earlier caselaw cited above (186 Misc 3d at 622). In 326-330 E. 35th St. Assoc. v Sofizade, 191 Misc 2d 329, 332-333 [App Term, 1st Dept 2002], the Appellate Term later clarified that a stay pursuant to CPLR § 2201 may be entertained in appropriate circumstances to avoid a forfeiture (see also 1720 Unico, Inc. v Fournier, 40 Misc 3d 138[A], 2013 NY Slip Op 51397[U] [App Term, 1st Dept 2013]).

2.   As would be expected, at the lowest end of the income spectrum, the housing cost burden is greatest: "[I]n 2013 between 50 and 70 percent of poor renting families spent half of their income on housing and between 25 and 50 percent spent at least 70 percent on it." (Matthew Desmond, Evicted 344 [n 3 to Prologue] [2016]).

3.   Sections 100.3(b)(4)-(5) of the Rules of Judicial Conduct also require New York judges to perform their duties and to require lawyers in proceedings before them to refrain from manifesting "by words or conduct" bias of various types, including socioeconomic status.

4.   The averments referenced are included in respondent's Affirmation (NYSCEF Doc. 28).

Clinton J. Guthrie, J.