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Flatbush Builders, Inc. v. Dubresil

Civil Court of the City of New York, Kings County

July 27, 2017

Flatbush Builders, Inc., Petitioner,
Wilner Dubresil, et al., Respondent.

          Cohen Hurkin Ehrenfeld Pomerantz & Tenenbaum, LLP, Brooklyn, for Petitioner.

          The Legal Aid Society (Office for the Aging), Brooklyn, for Respondent Wilner Dubresil.


         This is a holdover summary eviction proceeding predicated on the allegation that Respondents have violated a substantial obligation of their lease by frequently paying their rent late. Petitioner alleges that Respondents' repeated late payment led it to commence twenty-six nonpayment summary eviction proceedings between 1999 and 2015, including at least one such proceeding during each of those years, as well as to issue four five-day rent demand notices that did not result in a proceeding. Respondent Wilner Dubresil has moved for partial summary judgment on four of his affirmative defenses: that several of the proceedings cited were commenced more than six years prior to commencement of this proceeding and thus are barred from consideration by the statute of limitations for actions based on breach of contract; that the issuance of rent demand notices without commencement of an eviction proceeding based thereupon cannot be considered by the court in deciding this proceeding; that six of the proceedings cited were not calendared or pursued and therefore cannot be considered by the court in deciding this proceeding; and that six of the proceedings cited precede the date of the lease agreement that Petitioner is claiming Respondents breached, as specified in the notice of termination. In the alternative, Respondent seeks leave to conduct discovery or for a stay so that he may obtain the court files for the nonpayment proceedings listed in the predicate notice. Petitioner has moved for an order directing Respondents to pay "all use and occupancy presently due" and pendente lite. The motions are consolidated for disposition herein.

         Statute of Limitations

         The six-year statute of limitations for an action based on breach of contract also applies to an eviction proceeding premised on breach of lease (see CPLR 213[2]; Westminster Props. v Kass, 163 Misc.2d 773');">163 Misc.2d 773 [App Term, 1st Dept 1995]). Citing four lower court decisions concerning chronic late payment of rent, Respondent urges that the court "bar from consideration" the twenty nonpayment proceedings Petitioner commenced more than six years before this proceeding. Three of those decisions, Mins Court Housing Co., Inc. v Wright (42 Misc.3d 1214[A] [Civ Ct, Bronx County 2014]), Crotona Park Housing, LP v Joseph (45 Misc.3d 1202');">45 Misc.3d 1202 [A], 2014 NY Slip Op 51425[U] [Civ Ct, Bronx County 2014]), and 1975 Realty Associates, LLC v Castellanos (45 Misc.3d 1218');">45 Misc.3d 1218 [A] [Civ Ct, Bronx County 2014]), were decided by the same judge and do not contain any analysis or citation to appellate authority regarding application of the statute of limitations.

         The fourth decision, Adam's Tower LP v Lynch (NYLJ, Jan. 24, 2007, at 22, col. 3 [Civ Ct, NY County 2007]), is more nuanced than Respondent lets on and does not directly support his argument. Adam's Tower was a 2006 proceeding in which the landlord based its claim on allegations of payment of rent leading it to commence nine nonpayment proceedings: four commenced between 1987 and 1994, one in 2001, and four in 2005. The Hon. Peter Wendt granted the tenant's motion and dismissed that portion of the petition based on commencement of the proceedings commencement between 1987 and 1994. As explained by the court, had the holdover been commenced in 2001 (but prior to the 2001 nonpayment proceeding), the proceeding would have had to be dismissed because more than six years had passed since the cause of action last accrued with the commencement of the 1994 nonpayment proceeding. [1] Because the statute of limitations would have applied to require dismissal of a holdover commenced in 2001, "it therefore must also apply to any part of the petition [in the 2006 proceeding] that rests upon the 1994 and earlier proceedings, because if the statute of limitations for any claim based upon them had lapsed after May 2000, it has certainly expired now. Petitioner cannot now resurrect a moribund cause of action which was even beyond the six-year contractual statute of limitations more than six years before this proceeding was commenced in June 2006" (id.).

         Judge Wendt addressed his decision in Adam's Tower in a more recent, unreported decision annexed by Petitioner to its opposition to Respondent's motion, Chelsea Realty Development Corp. v Couceiro, et al. (Civ Ct, NY County, Oct. 1, 2015, Wendt, J., index no. 84549/14). The issue before the court was the same as here, and it is worth quoting Judge Wendt at length:

The time within which to commence [a holdover based on breach of lease] "shall be computed from the time the cause of action accrued to the time the claim is interposed" (CPLR 203). A statute of limitations provides a party with an affirmative defense to prevent the prosecution of a claim that was not pursued within the allotted time after its accrual. Here, respondent fundamentally misconstrues the purpose and function of a statute of limitations. It is not a rule of evidence, barring as irrelevant evidence of occurrences or transactions occurring outside the specified period. Rather it is a provision permitting respondent to raise a defense to a cause of action that accrued more remotely in time than the statute permits. The salient question, then, is not whether any of the occurrences or transactions upon which petitioner relies occurred more than six years prior to the commencement of this proceeding, but whether all of them did.
The fundamental characteristic of a claim of chronic rent delinquency is that there must be a cumulative pattern of unexcused rent delinquency (see 326-330 East 35th Street Assocs. v Sofizade, 191 Misc.2d 329, 333 [App Term, 1st Dept 2002]). The statute of limitations does not function as a rule of evidence to automatically prevent consideration of cases commenced more than six years prior to the commencement of this action. Although the trier of fact may well ultimately decided that the earlier proceedings were too remote in time to be part of the continuing rent delinquency pattern claimed herein by the landlord, the earlier proceedings may be considered as a matter of evidence. Rather, the statute of limitations could constitute a defense to this proceeding if petitioner's cause of action for chronic nonpayment were found to have accrued, but not continued, more than six years prior to the commencement of this proceeding.

(Chelsea Realty Development Corp., index no. 84549/14).

         Neither Respondent nor Petitioner cite any appellate authority concerning the application of the statute of limitations to a proceeding based on chronic late payment of rent. There are two decisions of the Appellate Term, First Department, that concern chronic late payment of rent and, while not explicitly addressing the statute of limitations head on, do implicitly support Petitioner's opposition to the motion. In Riverton Assoc. v Garland (13 Misc.3d 133');">13 Misc.3d 133 [A], 2006 NY Slip Op 51982[U] [App Term, 1st Dept 2006]), the court affirmed the granting of judgment to the landlord after trial where "the record establish[ed] that tenant's pattern of rent defaults led to the commencement of nine nonpayment proceedings over a ten-year period, which were resolved in landlord's favor, with no bona fide defenses advanced by the tenant." Were Respondent's theory correct, then one would expect that the Appellate Term would have excluded, or at least addressed, the proceedings commenced more than six years prior to the holdover.

         More recently, in Terrilee 97th St. LLC v Alaharzi (53 Misc.3d 151 [A], 2016 NY Slip Op 51694[U] [App Term, 1st Dept 2016]), the court affirmed dismissal of the petition after trial. In Terrilee the landlord had commenced nine nonpayment proceedings over a sixteen year period. In explaining its order the court did cite, in addition to rent abatements and repair issues, the fact that only two of the sixteen nonpayment proceedings were commenced since 2009. But while the relatively small number of nonpayment proceedings commenced within several years of the holdover did not support a finding of breach as a matter of evidence, there is no indication in the court's decision that the application of the six-year statute of limitations was an issue. As with Riverton Assoc., the absence of any discussion in the court's decision regarding statute of limitations undermines Respondent's argument.

         Based on the limited appellate authority available and Judge Wendt's reasoning in Chelsea, the court is not persuaded that the statute of limitations operates so ...

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