Civil Court of the City of New York, New York County
JACK STOLLER J.H.C.
Dunn, the petitioner in this proceeding
("Petitioner"), commenced this proceeding against
583 Riverside Dr LP, the respondent in this proceeding
("Respondent"), seeking relief on a claim of
harassment. Respondent did not appear. Petitioner proved that
she properly and timely served Respondent with the petition.
The Court held an inquest on.
that rent demand is harassment
inquest, Petitioner introduced into evidence a demand for
payment of rent that Respondent served on Petitioner pursuant
to RPAPL §711(2). Petitioner took the position that
service of the rent demand constituted harassment and that
she does not owe any rent to Respondent. The evidence that
Petitioner introduced to support her position was a rent
breakdown she had obtained from Respondent.
in order to ascertain the merits of a landlord's position
that a tenant owes rent, the Court looks at the most recent
zero balance on a rent breakdown, adds the rent liability
that accrued after that, and then subtracts all the payments.
In this matter, the evidence shows that Petitioner is a
beneficiary of a federal housing subsidy pursuant to 42
U.S.C. §1437f known as "Section 8," according
to which the amount of rent that Petitioner would be liable
to pay tracks her income, 42 U.S.C. §1437a(a)(1)(A), 24
C.F.R. §5.628(a), which means that Petitioner's
share as such would change as her income changed. While
Petitioner proved her most recent share of her rent, she did
not provide proof of what her share was going back to the
most recent zero balance in her rent breakdown.
as it may, Respondent's rent breakdown shows that
Petitioner's share of the rent was $855.00 from February
of 2017, the month after the breakdown last shows a zero
balance, through April of 2017, $920.00 from May of 2017
through April of 2018, $686.00 from May of 2018 through
August of 2019, and $171.00 from September of 2019 through
November of 2019. Assuming arguendo that the rent
breakdown accurately states Petitioner's share of the
rent, Petitioner aggregate rent liability from February of
2017 through November of 2019 would be $25, 094.00. The rent
breakdown shows that Petitioner also had a $5.00 credit
through January of 2017 and that Petitioner paid Respondent a
total of $21, 139.50 in rent from February of 2017 through
November of 2019. Crediting this credit and these payments
against Petitioner's rent liability results in a balance
of $3, 949.50. Given this balance, the Court does not find
that Respondent's service of a rent demand on Petitioner
is frivolous or conduct that constitutes harassment. The
apparent fact (which evidence at inquest was insufficient to
prove) that Respondent may not have sued Petitioner for
nonpayment of rent from February of 2017 through November of
2019 potentially raises a laches defense, but such a defense
does not render service of a rent demand to be frivolous,
particularly as even the successful interposition of a laches
defense would not prevent Respondent from obtaining a
non-possessory money judgment. 1560-80 Pelham Pkwy.
Assocs. v. Errico, 177 Misc.2d 947, 948 (App. Term 1st
Dept. 1998), Nunz Realty, LLC v. McBride, 40 Misc.3d
1229(A)(Civ. Ct. NY Co. 2013).
that service of rent demand on minor child is harassment
the demand seeks payment of rent from Petitioner, it also
seeks payment of rent from Petitioner's minor child.
Petitioner takes the position that demanding payment of rent
from her minor child constitutes harassment.
Admin. Code §27-2004(a)(48) defines
"harassment" as, inter alia, any act by an
owner of such significance as to substantially interfere with
or disturb the comfort, repose, peace, or quiet of any
tenant. Petitioner's evident care for her minor child
shows that she regards Respondent's demand of payment of
rent from him with alarm, which the Court finds indeed shows
an act of Respondent that interferes with Petitioner's
comfort and repose, particularly given that a demand for rent
from anyone other than a tenant, much less a minor child, is
unnecessary, as RPAPL §711(2) only requires a demand
from the "tenant," not a non-tenant. Grabino v.
Howard Stores Corp., 111 Misc.2d 54, 60 (Civ. Ct. Kings
Respondent did not appear in the proceeding, the only purpose
of service of the rent demand would be to establish a
predicate for a nonpayment proceeding against Petitioner. A
recent change in the law has implications for any such
summary proceeding. As a part of the Housing Stability and
Tenant Protection Act of 2019 ("HSTPA"), the
Legislature amended RPAPL §749(1) to authorize the Court
to issue a warrant commanding a marshal to remove all persons
"named in the proceeding," 2019 NY ALS 36, 2019 NY
Laws 36, 2019 NY Ch. 36, 2019 NY SB 6458, an amendment that
could be interpreted to preclude an eviction of anyone who is
not named in the proceeding, including minor children. Minor
children have not previously been necessary parties to
summary proceedings, Daley v. Billinghurst, 5
Misc.3d 138 (A)(App. Term 2nd Dept. 2004), a proposition that
raises the question as to whether the HSTPA now requires
landlords to name minor children to summary proceedings.
purpose of naming parties to summary proceedings is to afford
occupants of real property an opportunity to defend against
eviction. See, e.g., Parkash 2125 LLC
v. Galan, 61 Misc.3d 502, 509-10 (Civ. Ct. Bronx Co.
2018), G & L Holding Corp. v. Gonzalez, 43
Misc.3d 1206 (A)(Civ. Ct. NY Co. 2014). If, in a summary
proceeding, a landlord named a minor child of an occupant,
the minor child would most likely appear by the occupant as a
custodial parent, CPLR §1201, whose defense of the
summary proceeding would have the same effect on the outcome
whether the parent defended in their own name only or also on
behalf of a child.
only way that naming a minor child's parent would not
suffice to afford the minor child an opportunity to defend
against a summary proceeding is if the minor child's
parent did not wish to defend against an eviction but the
minor child wanted to live in the premises without the
parent. While the law presumes that the residence of a child
is the residence of the child's parents, Catlin v.
Sobol, 77 N.Y.2d 552, 559 (1991), an emancipated minor,
in theory, could be sixteen years old and live separate from
their family. See, e.g., 9 N.Y.C.R.R.
§349.5. In theory, then, an adult occupant could
conceivably move out of a premises, leaving an emancipated
minor, such that service on only the adult occupant without
service on the emancipated minor could fail to give the
emancipated minor an opportunity to defend the summary
these circumstances, if a landlord follows the dictates of
the Legislature and errs on the side of naming more
respondents than less respondents in a summary proceeding,
the Court cannot find that compliance with the expressed
desires of the Legislature also subjects a landlord to
harassment liability. As the Appellate Term recently stated,
"[i]f that is an undesirable result, the problem is one
to be addressed by the legislature." Harris v.
Israel, 65 Misc.3d 155 (A) (App. Term 1st Dept. 2019).
the Court dismisses this proceeding after inquest, without
prejudice to any position that either Petitioner, Respondent,
or any other party wishes to take in any future litigation
concerning the parties and/or the subject premises, including
but not limited to a summary ...