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Lee v. Kucker & Bruh, LLP

United States District Court, S.D. New York

August 2, 2013

RAFAEL LEE, Plaintiff,
v.
KUCKER & BRUH, LLP and ALAN D. KUCKER, Defendants

Page 525

For Rafael Lee, Plaintiff: James B. Fishman, Fishman & Neil, LLP, New York, NY.

For Kucker & Bruh, LLP, Defendant: Abner T. Zelman, Kucker and Bruh, LLP, New York, NY.

For Alan D. Kucker, Defendant: Abner T. Zelman, LEAD ATTORNEY, Kucker and Bruh, LLP, New York, NY.

OPINION

Page 526

OPINION AND ORDER

LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.

Plaintiff Rafael Lee brings this action against debt collectors, Kucker & Bruh, LLP (" K& B" ) and Alan D. Kucker (together " Defendants" ), alleging that they violated the Federal Debt Collection Practices Act, 15 U.S.C. § 1692 et seq . (" FDCPA" ), by misrepresenting that Mr. Lee was delinquent in his rent obligations. Defendants move for summary judgment, arguing that they have not violated the FDCPA and, arguendo , asserting the bona fide error affirmative defense. Plaintiff cross-moves for partial summary judgment on liability, but not damages. Having considered the parties' written submissions and oral arguments, and for the reasons stated below, Defendants' motion is denied, and Plaintiff's motion is granted.

I. Background Facts

The facts are taken from the parties' 56.1 Statements and are uncontested unless otherwise noted.

Plaintiff Rafael Lee is an 82-year old man who has resided in his apartment in New York City since 1965. Mr. Lee's landlord, Woodfin Properties, Inc., retained Mall Properties, Inc. (" MPI" ), as the managing agent for Mr. Lee's building.

Defendant K& B is a law firm that primarily represents landlords in New York City. K& B is a debt collector as defined by the FDCPA. 15 U.S.C. § 1692a(6). Defendant Alan D. Kucker is a partner at K& B. K& B first began to represent MPI in rent nonpayment cases in January 2012, approximately two months before the relevant events in this matter.

Mr. Lee's tenancy is governed by New York Rent Control Laws. Since at least 1995, Mr. Lee has had a Senior Citizen Rent Increase Exemption (" SCRIE" ), issued by the New York City Department of Finance. The SCRIE program provides a rent subsidy to low income, elderly rent controlled or rent stabilized tenants whose income is below a statutory threshold. Under the program, eligible rent controlled and rent stabilized tenants are legally liable to pay only a portion of their lawful rent while the landlord receives a real estate tax abatement equal to the balance. Landlords may not collect any rent or other charges, including fuel charges, from a tenant beyond the amount permitted under the SCRIE program.

In March 2012, the legally collectible monthly, rent-controlled rent for Plaintiff's apartment was $790.30. Since at least 1995, Mr. Lee's SCRIE eligibility order fixed his monthly rent obligation at $400.72. On or about March 1, the Isaac H. Tuttle Fund, a private social service agency that provides social services assistance to elderly tenants, paid $400.72 to Mr. Lee's landlord on his behalf.

Notwithstanding the payment, Mr. Lee's landlord forwarded documents to K& B, which indicated that Mr. Lee was delinquent in his rent obligation. On March 14, 2012, MPI sent Defendants a copy of a document titled Aged Delinquency Report, dated March 14, 2012 (" Delinquency Report" ), via email. The Delinquency Report showed that Mr. Lee had an overdue balance of $1,125.23 for amounts due from August 1, 2011 to March 1, 2012 -- consisting of $790.30 for March 2012 rent, $30.37 still owed for February 2012 rent and eight months of fuel charges each for $38.07. The Delinquency Report also showed that a payment of $400.72 was made into Mr. Lee's account on March 6, 2012, but did not show that it was credited against the $1,125.23 balance.

K& B prepared a statutory Three Day Notice, dated March 15, 2012 (" Three Day Notice" ), listing the charges but not the

Page 527

payment from the Delinquency Report, and demanding payment of the $1,125.23. The Three Day Notice warned Mr. Lee that the landlord would commence summary eviction proceedings to recover possession of his apartment if Mr. Lee did not pay the $1,125.23 within three days. Defendant Kucker signed the Three Day Notice, and it was served on Mr. Lee on March 19, 2012.

On or around March 22, 2013, K& B asked MPI to confirm whether Mr. Lee had paid the amount demanded. On around March 23, 2012, MPI forwarded K& B a one-page report that showed that the original $1,125.23 amount was still unpaid, and that Plaintiff's total outstanding balance had increased to $1,525.95 as of March 23, 2012. There was no explanation as to why Mr. Lee's balance had increased, although it appears that MPI not only had failed to credit Mr. Lee with the March 6 $400.72 payment reflected on the Three Day Notice, but instead had added it to the amount owed.

On March 26, 2012, Defendants filed a Petition that commenced a summary eviction proceeding against Mr. Lee in New York City Housing Court alleging nonpayment of the $1,125.23 that had been set forth in the Three Day Notice.

Mr. Lee thereafter retained counsel. On April 4, 2013, Mr. Lee's attorney sent Mr. Kucker an email disputing the validity and demanding verification of the debt, pursuant to 15 U.S.C. § 1692g. The email did not explain how or why the alleged debt was invalid. Mr. Kucker responded on the same day requesting that Mr. Lee's attorney not contact him by email.

On the same day, April 4, 2012, Mr. Lee's attorney also mailed K& B a written verified answer to the eviction proceeding asserting, inter alia , that Mr. Lee had a valid ...


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