DECISION OF THE COURT Procedural History The Defendants leased an apartment from the plaintiff pursuant to a written lease agreement and moved out of the premises prior to the expiration date of the lease. The Plaintiff brought this action for unpaid rent, late fees, late charges and interest based upon an alleged breach of the agreement. Plaintiff now seeks summary judgment asserting that there are no material issues of fact which exist. This action was commenced by the filing of a summons and complaint on April 11, 2018 in Watertown City Court. The defendants filed a joint response to the summons on April 30, 2018 however, after such time the defendant, Thomas E. Wright has not appeared in this action. The defendant, D.N., has appeared in subsequent proceedings involving this matter and filed a “Response to Summons” on September 30, 2019. The defendant, D.N., was advised in Court of the potential issues of proceeding without an attorney due to the legal complexities involved with this matter. On September 3, 2019, the plaintiff filed this motion for summary judgment and on the return date, plaintiff’s counsel appeared along with the defendant, D.N. who was then directed to file additional responding papers to the plaintiff’s complaint. On September 30, 2019 the Court received the defendant’s response to the plaintiff’s allegations along with a request to deny the summary judgment motion in which she also seeks a judgment against the plaintiff for damages. Summary of Facts The parties entered into lease agreement on January 2, 2016, a copy of which is included in plaintiff’s motion papers and attached to the underlying complaint filed in this matter. The lease was for a period commencing January 1, 2016 through January 1, 2017 and the agreed upon monthly rent was in the amount of $800.00 plus a pet deposit fee in the amount of $250.00 contingent upon permission being granted by the plaintiff. The Plaintiff asserts the defendant vacated the premises “sometime in the fall of 2016″ which is consistent with Ms. N’s position as set forth in her responding papers. Plaintiff is claiming damages in the amount of $6,300.00 which consists of $4,800.00 for back rent, plus late fees in the amount of $10.00 per day (plus interest) and $250.00 per month for late charges. In response to the complaint, Ms. N. submitted a “Response to Summons” stating that she vacated the premises due to the plaintiff’s failure to properly maintain the premises, the ongoing domestic violence issues with Thomas Wright and ‘harassment’ from the downstairs tenant. Specifically, Ms. N. contends that while residing in the premises, the roof leaked, there was a broken window in the attic which allowed for animals to enter the residence, she was attacked by Mr. Wright, the property manager had entered the apartment without notice and after lodging a complaint against the downstairs neighbor for smoking marijuana he because abusive toward her. Ms. N. also contends that due to these ongoing issues that she notified the plaintiff of her desire to vacate the premises on September 1, 2016 and if permission was granted that she would forego any claim to the security deposit posted. The affidavit of William Bonner, in support of the motion for summary judgment, states that after execution of the rental agreement with the defendants, that monthly payments were made on a regular basis until July of 2016 and no rent was paid thereafter. Mr. Bonner further sets forth that he did not become aware that the defendant was no longer residing in the apartment until late fall / early winter of 2016. Mr. Bonner also alleges that neither defendant provided notice upon vacating the property however, upon becoming aware of the situation attempts were made to mitigate his damages by renting the residence to another individual. The affirmation submitted by plaintiff’s counsel states that the defendants are required to pay rent for the duration of the lease terms, they did not provide notice that they were vacating the property and the plaintiff did not release them from the terms of the lease. Counsel also sets forth that a Notice to Admit was served and based upon the defendant’s failure to respond, those statements should be considered admissions pursuant to CPLR §3123. Lastly, the attorney for the plaintiff states that there are no material issues of fact and as such the request for Summary Judgment is appropriate. The Court will further note, that on October 10, 2019 the attorney for the plaintiff submitted a responding affirmation stating that summary judgment is being sought against Thomas Wright due to his non-appearance and D.N. has failed to raise a material issue of fact in her submission dated September 30, 2019. Standard of Law and Findings It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Alvarez v. Prospect Hosp., 68 NY 2d 320 [1986]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY 2d 395 [1957]; Zuckerman v. City of New York, 49 NY 2d 557 [1980]). If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with facts, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. “If a key fact appears in the movant’s papers and the opposing party makes no reference to it, he is deemed to have admitted it” (Siegel, Practice Commentaries, McKinney’s Cons.Laws of N.Y., Book 7B, C3212:16 citing Laye v. Shepard, 48 Misc2d 478, aff’d 25 AD2d 498). “When the movant’s papers make out a prima facie basis for a grant of the motion [for summary judgment], the opposing party must ‘come forward and lay bare his proofs of evidentiary facts showing that there is a bona fide issue requiring a trial…[H]e cannot defeat this motion by general conclusory allegations which contain no specific factual references.’ [internal citation omitted]…” (Siegel, Practice Commentaries, McKinney’s Cons.Laws of N.Y., Book 7B, C3212:16). Furthermore, it has long been held that a Court in considering a motion for summary judgment shall review the submissions in a light most favorable to the non-moving party and due to the drastic nature and remedy of summary judgment “relief should be granted only where no genuine, triable issue of fact exists….” (Broadway-111th Street Associates v. Morris, 160 AD 2d 182 [1st Dept 1990]. The Court finds the plaintiff has established the required prima facie case as there has been non-payment of rent during the period of time of the lease agreement. As such, the Court must examine whether or not D.N. has proffered the requisite information and competent evidence to demonstrate the existence of a material issue of fact to be considered at trial. The Court finds in the affirmative, in that the D.N. has met the necessary burden to warrant a trial in this matter and a denial of the motion for summary judgment to be appropriate. As a basis to support this finding the Court will first note, that as discussed in Landlord and Tenant Practice in New York §9:4: “Since the fundamental purpose of the warranty of habitability is to protect tenants from dangerous conditions and to provide a remedy for deprivations of essential services, the statute is interpreted broadly and expansively. One court has gone so far to state that ‘[I] is clear from the unequivocal language of the state, and the broad application of its protective mantle by the cases which have applied it, that [RPL] section 235-b excludes no residential tenant and includes all persons and entities as landlords” [internal footnotes omitted]. First, Ms. N. has raised genuine issues of fact as to whether or not there was a breach of the implied warranty of habitability leading to a constructive eviction of the defendant. Specifically, the defendant asserts a breach occurred in that the plaintiff did not take appropriate action to address issues involving a downstairs neighbor who was allegedly smoking an illegal substance on a regular basis. The Court finds, that the actions of a third party are within the scope of a landlord’s responsibility and the defendant’s assertions have not been addressed or answered by the plaintiff nor his counsel. (Park W. Mgt. Corp v. Mitchell, 47 NY 2d 316 [1979]; Poyck v. Bryant, 13 Misc. 3d 699 [Civ Ct, New York County 2006]). Thus, a question of fact remains for trial as to the plaintiff’s action or inaction in this regard and the impact upon the habitability of the premises. Secondly, Ms. N. makes reference to an infestation of animals in the property which include bats, birds and squirrels along with strong odors emitting from one of the bedroom walls. The plaintiff does not address the specifics of such allegations rather refutes the assertions by making a blanket denial of the claims. As such, preclusion of summary judgment is warranted on this basis as well and consideration must also be given, at trial, as to whether there is entitlement to any rent abatements. (Smith v. Perriello, 85 AD 3d 895 [2nd Dept 2011]) The defendant also asserts that protections governed by Real Property Law §227-c are applicable, as the statute states “A tenant for whose benefit any order of protection has been issued shall be permitted to terminate [her] lease and surrender possession of the leasehold premise and be released from any liability to pay to the lessor rent for the time subsequent to the date of termination of such lease in accordance with subdivision two” The Court finds, there is a question as to whether the defendant qualifies for the protections afforded by this statute as assertions are made pertaining to the co-defendant engaging in acts of domestic violence. Furthermore, in the event the defendant is entitled to such protections there are questions as to the defendant’s attempt to secure the voluntary consent of the plaintiff to terminate the rental agreement. (Riverwalk on the Hudson, Inc., v. Culliton, 62 Misc. 3d 351 [Cohoes City Ct 2018]) The Court will note however, that it does not find the defendant’s claim that the property manager was entering the premises, without notice, is a proper defense for the non-payment of rent nor the plaintiff’s claim of a breach of the contract. (Steltzer v. Spesaison, 161 Misc.2d 507 [Civ Ct, Kings County [1994]) [holding that the landlords' several entrances without permission were not 'so intrusive as to render the [premises] unusable”]. Therefore, although at trial such information maybe considered in making a final determination it does not form the basis of the summary judgment denial. Lastly, the Court will note that counsel for the plaintiff argues that summary judgment should also be granted based the defendant not responding to the Notice of Admit dated May 16, 2018. The Court finds that even upon consideration of such information contained therein that genuine issues of fact as set forth herein still remain. Conclusion “A motion for summary judgment ‘shall be denied if any party shall show facts sufficient to require a trial of any issue of fact’ (CPLR 3212[b]), except an issue of fact relating to ‘the amount or extent of damages’ (CPLR 3212[c])” (Glick v. Nozell, 94 AD2d 956 [4th Dept. 1983]). Accordingly, the Court finds there are triable issues of fact as to the breach of agreement along with the defenses raised based upon the implied warranty of habitability along with consideration to be given to provisions set forth in Real Property Law §227-c. As such the plaintiff’s motion for summary judgment as it pertains to D.N. is DENIED. Regarding, Thomas Wright the Court finds that based upon his non-appearance and due consideration having been given to the prior submission, there exist no triable issues of fact and the plaintiff’s request for summary judgment is GRANTED. NOW, upon review of the papers and submissions herein, it is hereby DETERMINED, that a judgment in favor of the plaintiff against Thomas Wright shall be entered in the amount of $6,300.00 plus costs and disbursements and the plaintiff shall submit a judgment for the Court’s consideration within thirty days of this decision; and it is further ORDERED AND DETERMINED, that the plaintiff’s motion for summary judgment is denied with respect to D.N. for reasons set forth herein. This constitutes the Decision and Order of the Court. Dated: October 22, 2019
