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The 1998 Alexander Karten Annuity Trust v. Stone & Co. Classics Inc.

Civil Court of the City of New York, New York County

September 13, 2013

The 1998 Alexander Karten Annuity Trust,, Petitioner-Landlord,
Stone & Co. Classics Inc., Respondent-Tenant.

Unpublished Opinion

Counsel for Petitioner: Robert N. Mizrahi, Esq. Mizrahi Law Offices, LLC.

Counsel for Respondent: Seth Denen Berg, Esq.

Nancy M. Bannon, J.

In this commercial summary nonpayment proceeding, the petitioner landlord moves, inter alia, to accelerate the balance of the $50, 000 due under the parties' stipulation of settlement and for a second money judgment in the sum of $98, 478.37, as per the stipulation, based upon the respondent tenant's repeated uncured defaults in payment. The motion is granted to that extent.

In opposing the motion, the respondent does not claim that it made all payments in a timely manner, which it could have easily established if that were the case. Indeed, it does not deny the petitioner's claim that it completely failed to pay on several occasions and issued bad checks on several others, and that the petitioner gave the required notice of the defaults, to no avail. Rather, the respondent merely asserts that the petitioner has unclean hands in that it purposefully held onto some checks for weeks and then deposited them at a time when there were insufficient funds in the respondent's account, a claim denied by the petitioner. Again, the respondent wholly fails to establish this claim. It submits only copies of the face of three of its checks accompanied by handwritten notations which indicate, contrary to its contention, that two of the checks were deposited within days of the date written by respondent on the front of the check. The third check contains an illegible date. Thus, the respondent fails to offer any basis for this court to conclude that it complied with the stipulation, or even for a hearing on these issues.

Accordingly, as per the parties' stipulation dated August 13, 2012, as amended by the stipulation dated January 24, 2013, the entire agreed upon amount of $50, 000 is now due, less any amounts paid, which the petitioner concedes is $26, 112.50, leaving a balance of $23, 887.50. The respondent does not dispute these amounts with any calculation of their own. In addition, the petitioner is entitled to $98, 478.37, the amount of unpaid rent that was waived by the petitioner on the condition that the respondent comply with the payment schedule for the $50, 000. The parties' agreement expressly provides that, upon the respondent's default in the payment schedule, the petitioner would be entitled to enter a judgment in that amount. The respondent does not dispute that it agreed to that provision of the stipulation but now argues that the court is without authority to award that amount because the respondent vacated the premises on September 7, 2012, as it agreed to do in the same stipulation, thereby terminating the landlord tenant relationship and the court's subject matter jurisdiction. This argument is unavailing.

The respondent is correct only insofar as it argues that the Civil Court is a court of limited jurisdiction. For example, the court generally has jurisdiction only as to actions or proceedings where the amount sought to be recovered or the value of the property does not exceed $25, 000 (see Civil Court Act [CCA] § 202) and may not grant equitable relief except in limited circumstances. See CCA §§ 209, 218; Bury v Cigna Healthcare of New York, Inc., 254 A.D.2d 229 (1st Dept. 1998); Jiskra v Canesper, 21 Misc.3d 129 (A)(App Term, 2nd & 11th Jud Dists 2008); Goldstein v Stephens, 118 Misc.2d 614 (App Term, 1st Dept. 1983). However, it is settled law that, in a summary proceeding to recover possession of real property, the Civil Court may "render judgment for rent without regard to amount" (CCA § 204) and "jurisdiction is not divested merely because of the removal of the respondent subsequent to the commencement of the proceeding." (Four Forty-One Holding Corp. v Bloom, 148 Misc.2d 565)." Eastrich No. 80 Corp. v Patrolmen's Benevolent Assoc. of the New York City Police Dept., 180 Misc.2d 98 (App Term, 1st Dept. 1999); see Avgush v Berrahu, 17 Misc.3d 85 (App Term, 9th & 10th Jud Dists 2007). Furthermore, the First Department has repeatedly held that the Civil Court has subject matter jurisdiction to compel compliance with a stipulation of settlement in a landlord-tenant case. See 952 Assocs., LLC v Palmer, 52 A.D.3d 236 (1st Dept. 2008); Lexington Ave. Assocs. v Kandell, 283 A.D.2d 379 (1st Dept. 2001); see also 361 West 121st Housing Dev. Fund Corp. v Frazier, 26 Misc.3d 46 (App Term, 1st Dept. 20090. This is because the "Civil Court is the strongly preferred forum" for resolving landlord-tenant disputes. Brecker v 295 Central Park West, Inc., 71 A.D.3d 564, 565 (1st Dept. 2010); see Post v 120 East End Avenue Corp, 62 N.Y.2d 19 (1984); 44-46 West 65th Apartment Corp. v Stvan, 3 A.D.3d 440 (1st Dept. 2004); Waterside Plaza, LLC v Yasinskaya, 306 A.D.2d 138 (1st Dept. 2003); Lex 33 Associates, L.P. v Grasso, 283 A.D.2d 272 (1st Dept. 2001). So long as the primary relief sought in the proceeding is repossession of the premises, the Civil Court, in some limited circumstances, may even grant incidental equitable relief, including declaratory relief. See CPLR 5221(a)(3); Blutreich v Amlagamated Dwellings, Inc., 46 A.D.3d 352 (1st Dept. 2007); Waterside Plaza, LLC v Yasinskaya, supra; compare Lex 33 Associates, L.P. v Grasso, supra; Bury v Cigna Healthcare of New York, Inc., supra.

As correctly argued by the petitioner, the decisional authority relied upon by the respondent is inapposite. In Topaz Realty Corp. v Morales, 9 Misc.3d 27 (App Term 2nd Dept. 2005), the court held only that the Civil Court's injunctive powers did not extent to authorize it to direct the landlord to release funds held in escrow. Similarly, in Tobin v Beaaro, Inc., 31 Misc.3d 127(A) (App Term, 2nd, 11th & 13th Jud Dists 2011), the Appellate Term ruled that the Civil Court was without jurisdiction to direct the landlord to, inter alia, turn over certain security deposits and execute stipulations of discontinuance, since this constituted injunctive relief. No injunctive relief is sought in the instant case. Nor is this a case where the primary relief sought is damages for wrongful eviction (see Rostant v Swersky, 79 A.D.3d 456 [1st Dept. 2010]), treble damages for a rent overcharge (1443 York Avenue Realty Co. v Ronning, 12 Misc.3d 142 (A) [App Term, 1st Dept. 2006]), or a judgment restoring possession (see Kiryankova v Brovkina, 2003 WL 21246185 [App Term, 2nd and 11th Jud Dists 2003]). Further, unlike the facts in Eastrich No. 80 Corp. v Patrolmen's Benevolent Assoc. of the New York City Police Dept., supra at 98, the petitioner has not filed new pleadings seeking recovery of a money judgment in a plenary action, under a new index number such that "it cannot be realistically argued that the matter retained its character as a summary proceeding." See also Harris v Yuan, 157 Misc.2d 359 (Civ Ct, NY County 1993) [prior action pending in Supreme Court and parties' Civil Court stipulation did not provide for additional money judgment upon default].

Here, the relief sought by the petitioner is simply a money judgment for unpaid rent, its right to which arises directly from the clear terms of the parties' stipulation, negotiated and executed by counsel in the context of this summary proceeding, and which unequivocally provides that, upon the respondent's default in any of the payments, the petitioner is entitled to an immediate money judgment for the balance due on the $50, 000, plus $98, 478.37. As stated above, the motion papers clearly establish that the respondent defaulted in the payments. Consequently, the petitioner is entitled to a total judgment of $122, 365.87, and need not, as argued by the respondent, commence a plenary action in Supreme Court to obtain that relief.

The petitioner's application for attorneys fees is denied since the parties' stipulation also provides that each party is to bear their own legal expenses.

Accordingly, it is

ORDERED that the petitioner's motion is granted to the extent that it is awarded a money judgment in the sum of $122, 365.87; and the motion is otherwise denied; and it is further, ...

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