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Kings and Queens Holdings, Inc. v. Ahmad

Civil Court of the City of New York, Richmond County

May 18, 2017

Kings and Queens Holdings, Inc., Plaintiff,
Jeanette Ahmad, Defendant.

          Attorney for Plaintiff Gutman, Mintz, Baker & Sonnenfeldt

          Philip S. Straniere, J.

         "It ain't over till it's over." Yogi Berra

         Plaintiff, Kings & Queens Holdings LLC, commenced this civil action against the defendant, Jeanette Ahmad, alleging that the defendant owed rent for an apartment known as 2862 Hylan Boulevard, Apt A-86, Staten Island, New York. The obligation allegedly was incurred before the defendant vacated the premises. A trial was held on March 21, 2017. Plaintiff was represented by counsel. Defendant was unrepresented.

         This action is typical of a class of litigation becoming more prevalent in Civil Court which has been labeled by some as "rental arrearage" actions. Typically, they involve actions commenced in a situation where the tenant has vacated the premises either before or after a summary proceeding was commenced in the housing part and an issue concerning unpaid rent or use and occupancy remains unresolved. This is an area of litigation distinct from the more common small claims action of tenants seeking the return of security deposits and landlords counterclaiming for damages which often arise following the housing part leaving these issues unresolved.


         The defendant was a tenant at the premises known as Apt A-86, 471 Falcon Avenue, Staten Island, New York pursuant to a written standard form rent stabilization lease. The apartment complex is known as Carolina Gardens. The lease was dated September 5, 2002 and indicated the term was to begin October 1, 2002 and expire September 30, 2004. Presumably, the lease term was extended over the years by written agreements. Another renewal lease was sent to the defendant on June 24, 2013 offering to extend the occupancy for either a one-year term (September 30, 2014) or a two-year term (September 30, 2015). It is agreed that the tenant refused to sign the renewal lease and remained in possession as a month-to-month tenant until she vacated the premises on September 30, 2014. This civil litigation alleges non-payment of rent for the period July 1, 2014 to September 30, 2014.

         It should be noted that in this civil action, plaintiff alleges that the address of the premises is 2862 Hylan Boulevard, Staten Island, New York, Apt. A-86. In the summary proceeding the landlord brought in September 2014 it alleged the address as 471 Falcon Avenue. Plaintiff contends that the premises has both addresses.

         The landlord on the initial written lease is Carolina Gardens Limited Liability Company. The petitioner in the summary proceeding and the plaintiff in this action is Kings & Queens Holdings, LLC. In order to resolve the question of the standing of the plaintiff to bring these actions, the court permitted the plaintiff to produce as a post-trial submission the deed from Carolina Gardens Limited Liability Company to plaintiff dated August 10, 2007. The property description in the deed covers three parcels with separate block and lot numbers.

         Prior Summary Proceeding (L & T No.52903/14):

         On September 3, 2014, plaintiff, as petitioner-landlord, commenced a summary proceeding alleging that the defendant, as respondent-tenant, failed to pay rent as agreed for the period June, July & August 2014. Respondent filed an answer on October 2, 2014 alleging that the monthly rent being charged is not the legal rent under the terms of the current lease and the June rent was partially paid. She also alleged that she moved in September 2014. The premises was described as 471 Falcon Avenue. Apt. A-86. The tenant did not raise as a defense conditions in the apartment.

         On October 8, 2014, the parties signed a stipulation reciting that the "proceeding discontinued. Tenant moved." There is no mention in the stipulation as to whether the claim for rent was resolved or survived. Neither party preserved the right to bring a plenary proceeding in regard to any issues existing between them. It is silent as to whether the discontinuance is with or without prejudice.

         In spite of entering into a voluntary discontinuance of the proceeding on October 8, 2014, in which it acknowledged surrender of the apartment, the landlord submitted papers seeking to have a warrant of eviction issued. Fortunately, the clerk discovered the discontinuance and rejected the inconsistent request. No warrant was issued. The legal status of this summary proceeding is discussed below.

         Legal Issues Presented:

         I. Is the Premises Properly Described?

         As noted above, the premises sought to be recovered in the summary proceeding was described by the plaintiff as 471 Falcon Avenue, Apt. A-86 while in this civil action it is listed as 2862 Hylan Boulevard Apt. A-86. When questioned at trial, plaintiff asserted that the addresses are interchangeable and describe the same premises. A search of buildings department records contradicts that assertion.

         A Department of Buildings search discloses that 471 Falcon Avenue, is one of twenty-one units listed as being located on Block 4000 Lot 39. The certificate of occupancy search for that address shows 471 Falcon Avenue as being one of nine addresses and eighteen dwelling units covered by the certificate of occupancy. Regarding 2862 Hylan Boulevard, it is listed as one of forty-four units on Block 4001 Lot 1. The certificate of occupancy discloses 2862 Hylan Boulevard as being one of ten addresses and twenty dwelling units covered by the certificate of occupancy.

         Obviously, they are not the same legal premises. If this were an action to recover possession of the premises, it would be defective. However, this is an action for unpaid rent only as the defendant has vacated the premises and it is conceded that she occupied Apt. A-86 irrespective of the street address. Because the address of the premises is not a material issue in the litigation. The court determines that this is a de minimis error capable of being remedied.

         II. Does the Existence of the Prior Summary Proceeding Preclude the Civil Action?

         Plaintiff, previously commenced the above referenced summary proceeding for non-payment of rent. It was discontinued by a stipulation dated October 8, 2014, the return date of the proceeding. The stipulation is not "so ordered" by the court. The procedure to discontinue an action or proceeding is set forth in Civil Practice Law & Rules (CPLR) §3217. There is no equivalent rule in the Real Property Actions & Proceedings Law (RPAPL). CPLR §3217 provides:

Voluntary discontinuance
(a) Without an order. Any party asserting a claim may discontinue it without an order
1. By serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served, or if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court; or
2. By filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action;
(b) By order of the court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.
(c) Effect of discontinuance. Unless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States.

         A review of the facts of the summary proceeding is needed to determine if that litigation was properly discontinued.

         On October 2, 2014, the tenant filed an answer which meant the action would proceed as a contested matter and gave it a court appearance date of October 8, 2014. Because an answer was filed, the discontinuance could not be by notice only as permitted by CPLR §3217(a)(1). If the language of the statute is taken as written, a discontinuance by stipulation [CPLR §3217(a)(2)] is also unavailable because it says the stipulation is to be "signed by the attorneys of record." The statute would seem to prohibit a stipulation of discontinuance being submitted in litigation where both parties are unrepresented or as exists here, where the landlord is represented and the tenant is not.

         This leaves as the only procedure to discontinue the summary proceeding was by "order of the court." This makes sense in that having the court order the stipulation would mean that the judge has allocated the document. Such a process is the minimum that should be required when unrepresented persons are one or both of the parties. It reduces the likelihood of a misunderstanding of the terms of the agreement as well as the possibility of the forfeiting of an unrepresented litigant's rights, especially if one side is represented.

         The court record discloses that the stipulation is not "so ordered." Nor is there any indication that the stipulation was allocated. It means that this court would have to conclude what was the legal effect of the discontinuance was never discussed with the unrepresented tenant. In effect, the housing part has created the equivalent of "Ground Hog Day" for the litigants.

         The above being the case, what is the status of the summary proceeding and this civil action? It appears that the summary proceeding was not properly discontinued. So, if the summary proceeding still is a viable action, does it have to be dismissed as an "abandoned case" pursuant to CPLR §3404? First, the language of CPLR §3404 only applies to cases in "supreme or county court." Civil Court is not mentioned. This court has in the past concluded that this is just another statute that the legislature never got around to fix when the county court was abolished in 1962 in New York City to be ...

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