Civil Court of the City of New York, Kings County
Petitioner's counsel Law Offices of Scott D. Gross
Respondent's counsel Brooklyn Legal Services
F. MARTON, J.
moves for a rent deposit. The motion is denied and the
proceeding is transferred back to Part J on February 28,
nonpayment proceeding was first returnable in Part J on
December 20, 2016. On that date it was adjourned to February
6, 2017; however, the court file does not include a
stipulation, an order, or anything else that might be
probative of the reason or reasons for the adjournment. On
the court file jacket in close proximity to the handwritten
date of the adjournment there are two other handwritten
notes. One is "trial or settlement" and the other
is "Resp disabled has Dept Human Rights case v LL."
The identity of the writer is not known.
interposed an answer in December, 2016 and then appeared by
counsel on February 6, 2017. Petitioner asked the court to
send the case out for a trial and respondent requested an
adjournment so that she might move to dismiss or for summary
judgment. Petitioner responded by asking the court to
condition any adjournment on a rent deposit pursuant to RPAPL
court transferred the case to Part C which has been
administratively designated to hear applications for rent
deposits. Neither side submitted papers in support of their
positions and neither side sought an opportunity to do that.
After hearing the arguments, the court reserved decision.
asserts that RPAPL § 745(2)(a) mandates a rent deposit
because more than 30 days have passed since the parties first
appeared. In pertinent part that statute provides:
In a summary proceeding upon the second of two adjournments
at the request of respondent, or, upon the thirtieth day
after the first appearance of the parties in court less any
days that the proceeding has been adjourned upon the request
of the petitioner, whichever occurs sooner, the court shall
direct that the respondent, upon an application by the
petitioner, deposit with the court within five days sums of
rent or use and occupancy accrued from the date the petition
and notice of petition are served upon the respondent....
opposes the application for a rent deposit on the ground, set
out at length in her answer, that respondent offered the rent
to petitioner but that petitioner wrongfully refused to take
it. More specifically, respondent asserts that she has been a
tenant of the premises, a rent-stabilized apartment, since
before September, 2015, that at that time she was approved
for a Section 8 voucher pursuant to which the government
would pay the rent to the extent that it exceeded 30% of her
income as adjusted, see 42 U.S.C. § 1437a, that
petitioner refuses to complete the paperwork necessary to
activate the voucher, and that this refusal is wrongful
because it is illegal for a landlord to refuse to accept a
payment of rent on the basis of the source of the payment.
Petitioner concedes the refusal but insists that it is not
wrongful because it is based not on the source of the funds
but instead on the ground that respondent engages in behavior
that constitutes a nuisance.
court denies the application for a rent deposit. Petitioner
does not pretend that it was ready for trial on the first
return date of December 20, 2016. Accordingly, the court
holds that the adjournment and the passage of time between
that date and February 6, 2017 are attributable to petitioner
. Cf, 564 Morgan Ave. Corp. v
Santos, NYLJ, p. 26 col. 4, 2/4/98 (Civ. Ct., Kings Co.,
1998), a nonpayment proceeding that had been adjourned on the
first return date for 30 days and on the second return date
for 29 days, in which the court denied a landlord's
application for a rent deposit, finding that the landlord had
not been ready to proceed on the proceeding's first
return date and holding that the application on that date for
an adjournment had to be attributed to both parties; see
also, Yellen v Baez, 177 Misc.2d 332 (Civ Ct,
Richmond Co., 1997) where the court declined to attribute the
first adjournment to the tenant even though the tenant had
requested the same, inasmuch as an adjournment was necessary,
regardless of the tenant's request, to secure the
services of an interpreter of Spanish.
petitioner's application for a rent deposit is denied and
the proceeding will be restored to the Part J calendar on
February 28, 2017 at 9:30 am. In light of this result, the
court declines to address respondent's argument that
petitioner's refusal to accept Section 8 is fatal to the
application for a rent deposit and, for that matter, the
court will mail copies of this decision and ...