ADAM TOWER LIMITED PARTNERSHIP v. RICHTER

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Supreme Court, Appellate Term, New York.

ADAM'S TOWER LIMITED PARTNERSHIP, Respondent-Appellant, v. Louis M. RICHTER et al., Appellants-Respondents.

Decided: August 09, 2000

PRESENT:  STANLEY PARNESS, P.J., WILLIAM J. DAVIS and PHYLLIS GANGEL-JACOB, JJ. Fischman & Fischman, New York City (Doreen J. Fischman of counsel), for appellants-respondents. Aury Bennett Stollow, P. C., New York City, for respondent-appellant.

Order dated May 7, 1999 (Oymin Chin, J.) modified by granting landlord's motion for summary judgment on the holdover petition;  as modified, order affirmed, with $10 costs to landlord appellant.

The uncontradicted evidence establishes that after years of consistently late rent payments, landlord was required to commence nine nonpayment proceedings during the period June 1995 through October 1998.   These proceedings were uniformly resolved by so-ordered stipulations in which tenants consented to judgment and agreed to pay out the arrears sought in full, without abatement.   There is no suggestion that rent was withheld because of unhabitable conditions within the apartment premises.   Rather, tenants acknowledge that they have experienced financial difficulties attributable to expenses occasioned by their son's medical condition.

 A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a “substantial obligation” of the tenancy (see, Sharp v. Norwood, 89 N.Y.2d 1068, 659 N.Y.S.2d 834, 681 N.E.2d 1280;  9 NYCRR § 2524.3[a] ).   This proceeding was not brought upon the ground of nuisance, which requires a showing of “aggravating circumstances” (Sharp v. Norwood, supra, at p. 1069, 659 N.Y.S.2d 834, 681 N.E.2d 1280), but upon the allegation that tenants' “long term, unjustified and persistent failure” to pay rent as it became due breached a material leasehold obligation.   That breach is firmly documented in the record, particularly in the absence of a bona fide habitability claim or dispute as to the amount of rent owed.   A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency.   While we are not unsympathetic to tenants' situation, a landlord in a regulated tenancy cannot be expected to meet its obligations when rent is tendered only as a consequence of eviction proceedings.

 We affirm that part of the order holding that a notice to cure was not required because the cumulative pattern of tenants' course of conduct was incapable of “cure” within ten days (National Shoes, Inc. v. Annex Camera & Electronics, Inc., 114 Misc.2d 751, 452 N.Y.S.2d 537).   The fact that a lease or statute provides time for a cure “does not necessarily imply that a means or method to cure must exist in every case” (National Shoes v. Annex Camera, supra, at p. 752, 452 N.Y.S.2d 537).   For parallel reasons, we decline to apply the post-judgment cure of RPAPL § 753[4] to this type of default (Ocean Farragut Associates v. Sawyer, 119 Misc.2d 712, 715-716, 464 N.Y.S.2d 346).

We have considered tenants' remaining arguments and find them to be without substantial merit.

PER CURIAM.