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Civil Court, City of New York.

T & G REALTY CO., Petitioner, v. Anne HAWTHORN, Respondent.


Decided: July 15, 2019

T & G Realty Co., the petitioner in this proceeding (“Petitioner”), commenced this summary proceeding against Anne Hawthorn, the respondent in this proceeding (“Respondent”), seeking a money judgment and possession of 307 West 106th Street, Apt 1R, New York, New York (“the subject premises”) on the basis of nonpayment of rent. Respondent interposed an answer with defenses and counterclaims of tender and refusal, breach of the warranty of habitability, laches, and harassment. The Court held a trial of this matter on October 19, 2018, January 4, 2019, April 22, 2019, and May 28, 2019 and adjourned the matter for post-trial submissions to June 25, 2019.

The record on trial

Petitioner proved that it is the proper party to commence this proceeding; that the parties are in a landlord/tenant relationship with one another; that the subject premises is subject to the Rent Stabilization Law; and that Petitioner has complied with the registration requirements of 9 N.Y.C.R.R. § 2528.3 and MDL § 325.

The Court took judicial notice of a determination dated May 27, 2015 in a prior nonpayment proceeding between the parties, T & G Realty Co. v. Hawthorne, Index No. 58099/2014 (Civ. Ct. NY Co.)(“the May 2015 decision”). The May 2015 decision found that the legal rent for the subject premises was $1,883.43. Leases in evidence also show the monthly rent as $1,883.43. Petitioner's principal testified that Respondent did not pay rent at this rate from January through November of 2016. Petitioner proved that it demanded payment from Respondent prior to the commencement of this proceeding pursuant to RPAPL § 711(2) on October 20, 2017.

Petitioner's principal (“Petitioner's principal”) testified on cross-examination that she receives rent to her home address and that when she receives checks, she handwrites them in her ledgers (“the ledgers”). Respondent introduced the ledgers into evidence. Petitioner's principal testified that she only records rents received in the ledgers, not what is owed. The ledgers do not record any payments from Respondent from January through November of 2016. The ledgers show a payment of three months' rent received on February 10, 2017, which Petitioner credited to December of 2016 and January and February of 2017. Petitioner's principal testified on cross-examination about a meeting at her management office in Manhattan between her, Petitioner's attorney, and Respondent (“the February 2017 meeting”), although Petitioner's principal did not remember if that was the date she received those checks; that she commences a nonpayment proceeding if a tenant builds up two or three or four months in arrears; that she didn't call Respondent when she did not receive rent payments from Respondent; that she doesn't know when her attorney filed the petition in this nonpayment proceeding; and that she commenced a holdover proceeding against Respondent in 2016 for failure to renew a lease (“the holdover proceeding”).

The Court took judicial notice of the holdover proceeding, which was captioned at T & G Realty Co. v. Hawthorne, Index # L/T 66745/2016 (Civ. Ct. NY Co.). The petition in the holdover proceeding includes a demand for payment of use and occupancy in an amount of $11,300.58 in use and occupancy through June of 2016, which is the exact amount of Respondent's rent liability at a rate of $1,883.43 from January through June of 2016. The holdover proceeding was noticed to be heard on June 30, 2016. The Court adjourned the holdover proceeding over Respondent's objection to July 28, 2016, when Petitioner discontinued the holdover proceeding.

Petitioner's principal testified on redirect examination that since 2015, the only two summary proceedings she commenced in the four buildings she owns were the holdover proceeding and this proceeding.

Respondent testified that she has lived at the subject premises since September of 2011; that after the May 2015 decision, Petitioner retaliated against Respondent by disconnecting laundry machines in the common areas of the building in which the subject premises is located (“the Building”); that Petitioner's principal has screamed at her and her children because they were using chalk on the sidewalk in front of the Building; that Petitioner's principal has made loud comments accusing Respondent of being a “deadbeat” who wanted to live in the subject premises for free; that Petitioner's principal accused Respondent's husband of threatening her; that Petitioner's principal accused Respondent of not being married to Respondent's husband in front of Respondent's children; that Petitioner had previously allowed her to keep storage in the basement of the Building; that she received a note instructing her to remove her personal property from basement of the Building; that she had to spend money on storage elsewhere; that she start emailing confirmations of rent sent upon finding out about problems with receipt of rent; that she always paid rent on a monthly basis; that her husband electronically transferred deposits to her bank account that she would use to pay the rent with; that she did not hear from Petitioner about unpaid rent from January through March of 2016; that she heard from Petitioner in April of 2016 about renewal leases; that the renewal lease Petitioner wanted her to sign added restrictions about the use of outdoor space that comes with the subject premises, which Respondent took as an attempt to alter the terms and conditions of her original lease with Petitioner and infringe on Respondent's use of rental space; that she was aware as of August of 2016 that Petitioner was not depositing her rent checks; that, after Petitioner discontinued the holdover proceeding, she got notices from Petitioner about back payments; that she met Petitioner's principal at the February 2017 meeting; that, at the February 2017 meeting, she was giving Petitioner a chance to cash the checks because she understood that Petitioner had the rent checks; that, at that point, money was in the account; and that, at the February 2017 meeting, Petitioner's principal accused Respondent of being in love with Petitioner's attorney.

Respondent introduced into evidence notices from Petitioner telling her to remove her personal property from the basement by May 9, 2016 and then by October 26, 2016.

Respondent introduced into evidence her bank statements from 2015 through 2017 which show monthly electronic deposits into her account from January through November of 2016 and that the balance in the account was about $20,000.00 around November of 2016.

Respondent introduced into evidence email correspondence between her and Petitioner and Petitioner's attorney on March 29, 2016, April 15, 2016, April 21, 2016, April 25, 2016, April 28, 2016, April 29, 2016, May 4, 2016, May 9, 2016, May 13, 2016, May 31, 2016, June 2, 2016, June 7, 2016, and March 7, 2017, which mention repairs, access, and renewal leases but do not mention rent arrears and an email where Petitioner's principal accuses Respondent of maintaining the subject premises in a “messy” state.

Respondent introduced into evidence an email that she sent Petitioner's principal on November 30, 2016, which referenced a notice of nonpayment that Petitioner had apparently sent Respondent on November 10, 2016 and asserted that Respondent paid rent every month since 2015. Further emails in evidence show that the parties were communicating about signing a renewal lease, which led to the arrangement of the February 2017 meeting. Respondent introduced into evidence another email dated January 30, 2017 that she sent to Petitioner's attorney which asserted that she paid all rent with the exception of January of 2017, which she was going to hand to Petitioner at the February 2017 meeting. Respondent further stated that Petitioner should cash all the rent checks that Petitioner “knows” that it received.

Respondent testified on cross-examination that she was unaware of the demand in the petition in the holdover proceeding for use and occupancy; that Petitioner had mailed her many different full-length leases with riders that Respondent did not agree with; that she doesn't recall specifically when they got lease renewals; that she sent rent for December of 2016 by certified mail; that Petitioner's principal had brought that check to the meeting they had in February of 2017; and that she did not have copies of rent checks for January through November of 2016.

Petitioner's principal testified on Respondent's case that Petitioner provided laundry at the Building for many years, before Respondent moved into the Building; that the machines broke down constantly; that she had them repaired many times; that she hasn't heard from other tenants about the laundry machines; that her insurance company wants the basement and yard clean; that she remembers saying to the super that Respondent wanted to live for free; that she told Respondent's children that the City owned the sidewalk and that Respondent's children wrote all over the sidewalk; that she said to Respondent that Respondent ruined the subject premises; that she may have videotaped Respondent and her children in the subject premises; that she received Respondent's rent check in December of 2016 and recorded it on one of her ledgers; that she erased the December 2016 rent check from the ledger and held onto the check because she thought that maybe Respondent would pay the entire accumulated arrears at that point; that she brought the December 2016 check to the February 2017 meeting; that she thinks that her insurance company communicated with her about Respondent's maintenance of the subject premises; that Respondent's children's toys in the backyard are a hazard because the door from the living room to the backyard is a means of egress; that she has to take photos because of insurance; that she can see the backyard from the roof of the Building; and that she told her son that Respondent's husband assaulted her.

Petitioner's principal testified on cross-examination on Respondent's case that she asked Respondent for rent at the February 2017 meeting and that the only rent Respondent tendered at that time was for December of 2016 and January and February of 2017.

Respondent introduced into evidence a certified mail slip dated November 30, 2016. Petitioner's principal testified on redirect examination on Respondent's case that she did not receive a tender for rent made by such a mailing; that Respondent owed over $20,000 in rent; and that she was anxious to get the rent.

Respondent introduced into evidence an undated ad for apartments in the Building advertising laundry. The parties stipulated that washing machines and dryers in the Building have not worked since 2016.

Respondent introduced into evidence a large number of photographs that Petitioner's principal or Petitioner's principal's husband took: of the outdoor space attached the subject premises from a few floors up or the roof, taken on August 3, 2015, August 5, 2015, September 2, 2015, March 22, 2016; of Respondent's personal property in the common areas of the basement of the Building, taken on January 16, 2015 and June 30, 2015; of the interior of the subject premises, taken on August 20, 2014 and January 12, 2018; and of the sidewalk in front of the Building.

Respondent introduced into evidence photographs of checks she wrote for rent dated May 5, 2016 and June 5, 2016.

Petitioner's principal's husband testified that he is a building manager; that he handles day to day repairs; that Petitioner does not have laundry in the Building anymore because it wasn't effective, no one used it, and machines kept breaking; that he photographs apartments; that he never went into an apartment without permission; that he asked Petitioner's principal about rent; that Petitioner's principal said that she hasn't gotten rent; that Respondent damaged the backyard with a tent and toys; that waterproofing chipped off of the wall; that he did not communicate to Respondent that she damaged the wall; and that he photographed the subject premises because an insurance company requested that Petitioner clean the yard and the basement. Respondent introduced into evidence a letter dated July 6, 2015 from an insurance company that said that a tent should be removed, that housekeeping of the backyard needs improvement, and that clutter should be removed.


Petitioner proved on its prima facie case that it did not credit payments of rent from January through November of 2016 which, at a rate of $1,883.43 a month, adds up to $20,717.73. Respondent raised a defense of laches to Petitioner's cause of action for a possessory judgment for the $20,717.73. In order to establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief; and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant. All four elements are necessary for the proper invocation of the doctrine. Meding v. Receptopharm, Inc., 84 AD3d 896, 897 (2nd Dept. 2011), Philippine Am. Lace Corp. v. 236 W. 40th St. Corp., 32 AD3d 782, 784 (1st Dept. 2006), Dwyer v. Mazzola, 171 AD2d 726 (2nd Dept. 1991), A & E Tiebout Realty v. Johnson, 23 Misc 3d 1112(A)(Civ. Ct. Bronx Co. 2009), aff'd, 26 Misc 3d 131(A) (App. Term 1st Dept. 2010).

In a nonpayment proceeding, a tenant can show prejudice, the fourth element of the laches defense, if the tenant proves an inability to pay accumulated arrears. See, e.g., A & E Tiebout Realty, supra, 23 Misc 3d at 1112(A); Rota Holding Corp. No. 2 v. Shea, 21 Misc 3d 1127(A)(Civ. Ct. NY Co. 2008); Lemle 58th LLP v. Wolf, 20 Misc 3d 1133(A)(Civ. Ct. NY Co. 2008); Marriott v. Shaw, 151 Misc 2d 938, 941 (Civ. Ct. Kings Co. 1991), Dedvukaj v. Madonado, 115 Misc 2d 211, 214 (Civ. Ct. Bronx Co 1982). Respondent did not introduce any evidence about her ability to pay the arrears Petitioner sues for here. A mere lapse of time, without a showing of prejudice, will not sustain a defense of laches. Saratoga Cty. Chamber of Commerce v. Pataki, 100 NY2d 801, 816 (2003), C.T. Holdings, Ltd. v. Schreiber Family Charitable Found., Inc., 154 AD3d 433, 433 (1st Dept. 2017).

Moreover, the record shows that Respondent could not have lacked notice that Petitioner would seek to enforce its claim for rent. The petition in the holdover proceeding, served in June of 2016, included a demand for the six months' worth of rent, to the penny, that Petitioner's records show had not been paid at the time, which implicates whether Petitioner delayed its demand for rent and whether Respondent lacked notice of Petitioner's claim. See 14 Morningside Ave HDFC v. Murray, N.Y.L.J. April 23, 2002 at 18:1 (App. Term 1st Dept.), R.M.H. Estates v. Hampshire, 13 Misc 3d 1222(A) (Civ. Ct. NY Co. 2006). Respondent's email in November of 2016 referenced a demand for rent arrears in that month. The Court draws the inference that the parties discussed rent arrears at the February 2017 meeting, when Respondent tendered three months of rent. Accordingly, as three of the elements of the laches defense are compromised at best and Respondent did not prove one at all, the Court dismisses Respondent's laches defense.

Respondent interposed a defense that she properly tendered rent and that Petitioner wrongfully declined to cash her checks, a defense available to a tenant who can prove that a landlord attempted to manipulate a tenant with the tenant's ultimate inability to satisfy a judgment and consequent eviction in mind. Haberman v. Singer, 3 AD3d 188, 192 (1st Dept. 2004), Anderson Ave. Assocs., L.P. v. García, 50 Misc 3d 1065, 1068 (Civ. Ct. Bronx Co. 2015). Tenants have prevailed on this defense when the record evinced no dispute of fact that a landlord refused a tender, Haberman, supra, 3 AD3d at 191, such as when the refusal was in open Court. 16 Apartment Assocs., Inc. v. Lewis, 24 Misc 3d 127(A)(App. Term 2nd Dept. 2009), Anderson Ave. Assocs., L.P., supra, 50 Misc 3d at 1068-69, Windemere Owners, LLC v. Mullu, 2013 NY Slip Op. 31714(U), ¶¶ 3-4 (Civ. Ct. NY Co.).

In this matter, however, Petitioner's refusal to deposit Respondent's tenders is disputed by the parties. As the proponent of the defense of tender and refusal, Respondent bears the burden of proving both that she tendered the rent and that Petitioner refused the tender. Evidence in the record complicates Respondent's task of meeting her burden. Respondent testified that she started memorializing the delivery of her rent checks because Petitioner was not depositing them, and introduced into evidence photographs of checks dated in May 2016 and June 2016. However, the record does not contain proof that Respondent sent the rent to Petitioner until November of 2016, when Respondent sent rent by certified mail. If Petitioner's demand for rent in November of 2016 prompted the delivery of rent by certified mail, the record is not clear as to the reason why Respondent didn't use certified mail back in May of 2016 when she suspected Petitioner's rejection of rent enough to photograph rent checks.

Moreover, the ledgers do not show that Petitioner rejected Respondent's rent. The ledgers demonstrate that Petitioner maintains an amateurish and flawed bookkeeping system that, crucially, does not record running balances. However, Petitioner maintains the ledgers as such not personally to Respondent but for Petitioner's other tenants as well. A rent breakdown that not only omits a running balance but also any mention of a tenant who does not pay can obscure a buildup of arrears, which is not consistent with the proposition that Petitioner refused Respondent's tenders to manipulate her into an eviction, and is consistent with Petitioner's failure to mention rent arrears in various emails with Respondent.

As noted above, the earliest that the record shows that Respondent sent rent to Petitioner by certified mail, November of 2016, is just before the only erasure in the ledgers, and is consistent with Petitioner's principal's testimony that she initially credited that tender in the ledgers and then erased it to see if Respondent would pay the arrears that had accumulated at that point, payment of which Petitioner demanded in November of 2016. After that, Petitioner accepted three months' rent at the February 2017 meeting and the rent every month subsequently. This record therefore does not sustain Respondent's burden of proving that she tendered rent and that Petitioner refused it with the intention to manipulate Respondent into a position where she would be evicted for nonpayment of rent.

Respondent offered evidence that Petitioner denied her storage space and washing machines in the Building. However, Respondent's original lease, which is in evidence, does not provide Respondent with storage space and vests Petitioner with the discretion to dictate the terms of use of the washing machines. As Respondent's original bargain with Petitioner, set forth in the lease, does not exchange rent for space other than the subject premises itself or for laundry services, Petitioner's curtailment of those amenities does not implicate the warranty of habitability.1 While Respondent introduced into evidence emails that mentioned conditions in need of repair, those emails are only probative for notice purposes and not proof of the conditions themselves. Respondent did not offer other evidence sufficient to prove a breach of the warranty of habitability.

Respondent interposed a counterclaim for harassment. N.Y.C. Admin. Code § 27-2004(a)(48) defines “harassment” as, inter alia, any act or omission by or on behalf of an owner to cause any tenant to surrender rights, including a use of force, threats, providing false or misleading information, interruptions of essential services, repeated commencement of baseless court proceedings, removal of a tenant's possessions, removal of an entrance door, making buyout offers, or other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, reposes, peace, or quiet of any tenant.

Petitioner's principal did not rebut that she has said intemperate things to Respondent over the past two years, which she does not deny, such as calling Respondent a deadbeat, saying disparaging things about Respondent's husband, accusing Respondent of being in love with Petitioner's attorney, and reprimanding Respondent's children for writing on the sidewalk with chalk. These statements can, in the words of the statute, disturb Respondent's comfort. More significant, though, is the large number of photographs that Petitioner surreptitiously took of the subject premises, mostly of the backyard from other parts of the Building with a line of sight to the backyard. If Petitioner took the position that photographs were needed for insurance purposes, which is not inherently unreasonable, Petitioner should have just arranged for an access date to take such photographs. The sheer volume of photographs belies Petitioner's rationalization for such an intrusion on Respondent's privacy. This level of surveillance clearly violated Respondent's comfort and repose that any tenant should have within the confines of the demised premises itself.

A finding of harassment constitutes an immediately hazardous violation of the New York City Housing Maintenance Code, N.Y.C. Admin. Code § 27-2115(m)(1) and gives rise to injunctive relief against an owner, a mandatory civil penalty payable to the City of New York in an amount not less than two thousand dollars and not more than ten thousand dollars, and “such other relief as the court deems appropriate ․” N.Y.C. Admin. Code § 27-2115(m)(2). In addition to such relief, the Court “shall, in addition to any other relief such court determines to be appropriate, award to [a tenant who has been subject to harassment] compensatory damages or, at the election of such occupant, one thousand dollars and [ ] reasonable attorneys' fees and costs.” N.Y.C. Admin. Code § 27-2115(o)(emphasis added).

The Court interprets “compensatory damages” to be akin to a rent abatement. The measure of damages for breach of the warranty of habitability is the difference between the rent reserved under the lease and the value of the premises during the period of the breach. Park West Management Corp. v. Mitchell, 47 NY2d 316, 329, cert. denied, 444 U.S. 992 (1979), Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 (1st Dept. 1996). The harassment the Court found above diminished the habitability of the subject premises by ten percent. Ten percent of the monthly rent of $1,883.43 is $188.34. The photographs in evidence date from before the May 2015 decision, which resolved rent arrears claims and counterclaims through that date, up through January of 2018, shortly after the commencement of this proceeding. The type of harassing interactions Petitioner's principal engaged in with Respondent went on during that time frame as well. While the photographs and the interactions did not occur on a daily basis, the effect of them on Respondent would not have changed during that time frame, and essence of harassment does not comport with the idea that harassment is something that starts and stops and then starts up again. The Court therefore applies Respondent's counterclaim to the thirty-two-month block of time from June of 2015 through January of 2018.

Thirty-two months at $188.34 totals to $6,026.88. The Court awards Respondent her counterclaim in the amount of $6,026.88 and offsets that award against the rent arrears of $20,717.73, which leaves a balance of $14,690.85. The Court awards Petitioner a final judgment in the amount of $14,690.85. Issuance of the warrant of eviction is stayed through July 22, 2019 for Respondent to pay $14,690.85 to Petitioner.2 On payment, issuance of the warrant of eviction shall be permanently stayed. If Respondent does not pay Petitioner $14,690.85 on or before July 22, 2019, Petitioner will be able to obtain a warrant of eviction after that date.

On Respondent's counterclaim, the court also directs Petitioner to restrain from engaging in any conduct in violation of N.Y.C. Admin. Code §§ 27-2004 (a)(48) and 27-2005(d), i.e., harassment, and imposes a penalty of $2,000.00 on Petitioner, payable to the New York City Commissioner of Finance.

The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.

This constitutes the decision and order of this Court.


1.   The statutory warranty of habitability does not apply to laundry services in a building, as suitability for human habitation or the essential functions expected of a residence does not require them. Solow v. Wellner, 86 NY2d 582, 588-89 (1995), reversing a finding that laundry services implicate the warranty of habitability. Solow v. Wellner, 150 Misc 2d 642 (Civ. Ct. NY Co. 1991).

2.   After a judgment in a nonpayment proceeding, the issuance of the warrant can be stayed for five days. RPAPL § 732(2). Five days from this writing is July 20, 2018, a Saturday. If a period of time according to which an act is to be done falls on a Saturday, Sunday, or a holiday, the act may be done on the next business day. General Construction Law § 25-a(1). The next business day after July 20, 2019 is July 22, 2019.

Jack Stoller, J.

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