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Landlord’s Demand for Excessive Late Fees Compels Dismissal of Landlord’s Summary Non-Payment Proceeding, According to Queens County Civil Court

New York Summary Eviction Proceedings: Statutory Notice Requirement.

In the New York metropolitan area, the vast majority of eviction cases are filed as “summary proceedings” in either Civil Court of the City of New York, or in a District Court if the case is outside of NYC.  Summary proceedings are intended to provide landlords with an expeditious ways to evict tenants, usually because a tenant has failed to pay rent or has held over after their lease ended. However, there are strict statutory notice requirements that a landlord must follow to evict a tenant through a summary proceeding.  In nonpayment proceedings, a landlord must first provide a tenant with a predicate three-day notice that provides the tenant with a reasonable, good faith estimate of the amount of past-due rent, including the amount of rent owed for each period of time when rent was allegedly not paid. A landlord is not allowed to merely set forth a lump sum of the entire amount of rent that is allegedly due.  Instead, it must set forth a month-by-month itemization of all past-due rent. If a landlord does not comply with the requirement of providing a three-day notice, or if it issues a defective notice, a tenant may assert, either through an affirmative defense or a motion to dismiss, that the landlord’s nonpayment proceeding must be dismissed.  

The Courts in New York City and its suburbs are divided into two “departments,” namely the First Department (Manhattan and Bronx), and the Second Department (Brooklyn, Queens, and Staten Island in NYC, and the suburbs in Westchester, Nassau, Suffolk, Putnam, Orange, Dutchess and Rockland Counties).  The First and Second Departments have separate appellate courts, and there are significant differences in how they interpret and apply landlord tenant law. In some instances, these differences can spell the difference between a valid claim for rent and a petition that fails as a matter of law and must be dismissed.   

Nonpayment Proceeding Dismissed Due to Landlord’s Demand for Excessive Late Fees.

In the First Department (Manhattan and Bronx), landlords are allowed to include, as part of their rent demands, late fees and attorneys’ fees.  Even if the landlord demands fees that are excessive, the court will generally uphold the rent demand as a valid and allow the summary proceeding to continue.  However, in the Second Department, rent demands are subjected to much stricter scrutiny. Judges in the Second Department have dismissed summary nonpayment proceedings based on a landlord’s demand for exorbitant late fees and/or attorneys’ fees.  This is precisely what happened in the recent Queens County case 56-11 94th Street Co. v. Jara (Hon. Clinton J. Guthrie, J.S.C.).  In the Jarra case, Judge Guthrie held that although the landlord issued a three-day notice, this notice was invalid because the notice included a demand for late fees that amounted to more than 17% of the total amount of alleged past-due rent.  Judge Guthrie held that late fees of 17% are unenforceable as a matter of law. Judge Guthrie further held that by virtue of having included this invalid charge in its three-day notice, the landlord had not provided the tenant with a good faith estimate of the amount that the tenant was required to pay.  Based on this defect, the court dismissed the landlord’s eviction proceeding.  

The decision of the Queens Civil Court in the Jara case underscores how important it is that landlords and tenants retain attorneys who are experienced in dealing with the nuances of New York landlord tenant law.  The New York landlord attorneys at Rapaport Law Firm have represented landlords and tenants in New York City since 1995.  We recently obtained a substantial settlement in a class action case involving nearly 2000 residential tenants whose landlord egregiously violated laws requiring landlords to segregate tenants’ security deposits.  For more than 13 years, Marc Rapaport has been New York City litigation counsel for the nation’s fourth largest wireless communications carrier. We handle the entire gamut of landlord tenant cases, including disputes that involve a single residential or retail tenant.  If you have questions regarding New York landlord tenant law, call Rapaport Law Firm.

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