RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.PAPERS NUMBEREDNOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT AND EXHIBIT ANNEXED 1ANSWERING AFFIRMATION AND EXHIBITS ANNEXED 2REPLYING AFFIRMATION AND EXHIBIT ANNEXED 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this holdover proceeding to recover possession of the subject rent stabilized apartment based on the claims in the underlying 10 Day Notice of Termination. The Termination Notice asserts the respondent harassed the petitioner by refusing to provide access for exterminations, access to the master bedroom, yelled and cursed at petitioner’s workers, damaged the apartment, routinely called city inspectors claiming violations then failed to provide access to city inspectors, violated his lease agreement by failing to tender rent payments when they were due, and chronic nonpayment of rent.Petitioner and respondent Oladapo appear by counsel. No other respondent has appeared. Respondent’s verified answer interposed a number of affirmative defenses and counterclaims.Respondent’s prior Order to Show Cause (OSC) to dismiss the proceeding was withdrawn pursuant to the parties’ August 29, 2018 seventeen paragraph, two attorney, so ordered probationary stipulation of settlement. During the September 11, 2018 through June 30, 2019 probationary period, the respondent agreed to provide access, petitioner agreed to make repairs, respondent agreed to first notify petitioner of any repair issues and allow access to petitioner for those repairs prior to making any complaint/calls to any city agencies. Respondent paid some arrears in court and agreed to tender the balance of $1,455.49 owed through August 30, 2018 by September 15, 2018, and agreed to remain current with on going rent by either the 9th of each month, or by the 20th if the payment including an additional $25.00 late fee. Petitioner withdrew its chronic rent delinquency cause of action without prejudice, respondent reserved his defenses to same, and any rent arrears accruing after August 2018 would be the subject of a new proceeding.The August 29, 2018 stipulation delineated how either party could restore the case. Petitioner could seek a possessory judgment and warrant if respondent failed to pay the $1455.49 rent arrears owed through August 30, 2018 by September 15, 2018. For any alleged nuisance petitioner, would have to prove at a hearing any post stipulation incidents were a nuisance. Petitioner reserved the right to seek a non possessory judgment for legal fees for any restoration of the case, and both parties reserved all rights and defenses with regards to liability for legal fees.Petitioner moves by the instant Notice of Motion to an order restoring the case to the calendar for entry of a final possessory judgment and a $1,455.49 money judgment against the respondent representing rent arrears due through August 2018, issuance of a warrant forthwith pursuant to paragraphs 4 and 10 of the parties’ August 29, 2018 stipulation. Petitioner also seeks a non possessory judgment for legal fees pursuant to paragraph 10 of the parties’ August 29, 2018 stipulation, in an amount to be determined by the court but not less than $1000.00, claiming it has been forced to make the instant motion due to respondent’s non compliance.Respondent opposes the motion in its entirety, but fails to submit an affidavit in opposition.Petitioner’s motion, returnable on October 18, 2018, was served by regular mail on respondent’s counsel and respondent John and Jane Doe on October 2, 2018 according to the appended affirmation of service. Petitioner’s managing agent, Lisa Glass, states in her October 2, 2018 affidavit in support that the respondent failed to comply with the parties’ August 29, 2018 stipulation in that he failed to pay $1,455.49 U&O due through August 2018. Ms. Glass states that respondent has also failed to pay September 2018 U&O.Respondent opposes the motion, but fails to submit an affidavit in opposition. Respondent’s counsel’s affirmation in opposition asserts he attempted to tender respondent’s payments totaling $2,555.49 at petitioner’s counsel’s office on October 15, 2018. Petitioner’s counsel asserted he was sick that day and requested counsel speak with him the next day. Respondent’s counsel asserts he brought the payment to court and tried to tender the funds to petitioner’s counsel on October 16, 2018, but counsel asked to speak with him later in the day. Respondent’s B is a copy of two money orders payable to petitioner from the respondent. One money order is dated 9/16/18 for $1,100.00, and the second is dated 10/9/2018 for $1,155.49. Respondent contends petitioner’s refusal to accept rent is a defense to a summary proceeding, and the branch of the motion seeking a possessory judgment should be denied. Respondent further contends that even after a landlord obtains a judgment and a warrant, tender of the judgment amount renders the judgment and warrant nullities. It is undisputed that respondent’s counsel made two efforts to pay the arrears to petitioner.Respondent fails to submit an affidavit in opposition. Respondent fails to state a reason why he did not comply with the terms of the parties’ August 29, 2018 stipulation, which called for him to tender $1,455.49 owed through August 2018 by September 15, 2018. The appended copy of the first money order for petitioner, dated September 16, 2018 for $1, 100, is $355.49 short of the amount that was due one day earlier on September 15, 2018. The appended copy of the second money order for petitioner dated, October 9, 2018 for $1,155.49, would include the $355.49 deficiency owed through August 30, 2018. This money order is dated three weeks after the September 15, 2018 payment due date. The instant motion was served on respondent’s counsel by mail on October 2, 2018. Respondent fails to offer an explanation for why he did not attempt to tender the $1,455.49, due by September 15, 2018, until after petitioner served its instant motion.Respondent argues petitioner failed to show it is entitled to a non possessory judgment for legal fees. Respondent argues petitioner fails to attach a lease or point to any statutory basis for that relief. Pursuant to the parties’ August 29, 2018 stipulation he reserved his defenses to this claim.Petitioner’s asserts in its reply affirmation that at no time did he reject any attempted tender, nor was he unwilling to accept an attempted tender. Counsel asserts respondent’s counsel arrived unannounced at his office on the afternoon of October 15, 2018. Petitioner’s counsel was ill, and respondent’s counsel consented to handle the matter the next day. Counsel asserts that on October 16, 2018, he met respondent’s counsel in court, was not able to review respondent’s counsel’s proposed stipulation, requested until the following day to try to settle petitioner’s instant motion, and to the best of his recollection opposing counsel agreed.Counsel asserts in reply that this case has been active since 2017, and he wanted some time to review the case file and proposed stipulation. Counsel asserts to the best of his recollection he informed respondent’s counsel he was going to attempt to review the proposed stipulation that afternoon (October 17), however, he then received respondent’s opposition that same afternoon by email.Petitioner argues that respondent was already in default pursuant to the terms of the parties’ stipulation, and petitioner was not obligated to accept a late payment. Petitioner contends that even if respondent believed the alleged tender was being refused, respondent could have brought the funds to court on the October 18, 2018 return date of the pending motion.Paragraph 11 of the reply affirmation states: “Moreover, Respondent cannot claim any prejudice, because even if Respondent believed that the alleged tender was being refused, Respondent could have brought such funds to court on the return date of the pending motion (which they did anyway) in order to attempt tender the funds at that time.” It is unclear from the rest of the reply if respondent tendered and petitioner accepted the $1455.49 in court on the motion’s October 18, 2018 return date.Petitioner argues that “upon information and belief” the lease has a legal fees clause and was presented in a different proceeding. Petitioner fails to append a copy of respondent’s lease to either its motion or reply. Petitioner’s reply exhibit 1 includes a copy of petitioner’s cross motion in another proceeding between the parties – HP 2240/17. Included in that exhibit is an October 17, 2017 affidavit in support of a cross motion from Ms. Glass, petitioner’s managing agent. Paragraph 30 of Ms. Glass’s October 17, 2017 affidavit identifies an appended lease dated 10/19/1994 between petitioner and an individual “Philomena Oshuntole” for the subject apartment, as respondent Akindayo Oladapo’s lease. Petitioner fails to identify the relationship between “Philomena Oshuntole” and respondent Akindayo Oladapo. “Philomena Oshuntole” is the sole tenant named in that lease, and is the sole tenant signatory. There is no connection between the lease produced in a prior HP action and the respondent herein.Petitioner fails to append an affidavit from petitioner’s agent stating the relationship between respondent “Akindayo Oladapo” and the individual “Philomena Oshuntole”, who is the only named tenant, and tenant signatory to the 1994 lease. Petitioner does not append a reply affidavit from its agent Ms. Glass identifying the relationship between “Philomena Oshuntole” who signed a lease for the apartment in 1994 and the respondent Akindayo Oladapo. Ms. Glass’s affidavit in support of the instant motion is silent as to any existing lease between the parties.Conclusion:Based on the foregoing, the branch of petitioner’s motion seeking a possessory judgment and a $1,455.49 money judgment against respondent representing all arrears owed through August 30, 2018, and the issuance of a warrant, is denied. While respondent’s payment was late, it is undisputed his counsel, after receiving the instant motion, attempted to tender at least $1,455.49 to petitioner’s counsel prior to the October 18, 2018 motion return date. It is unclear from the petitioner’s reply if respondent did tender and petitioner accepted the $1455.49 rent arrears due through August 30, 2018 on the motion’s October 18, 2018 return date.Accordingly, if respondent has not already tendered the $1455.49 to petitioner, respondent is to do so within seven days of the date of this order. This would be without prejudice to either sides claims or defenses to any arrears owed after August 30, 2018, and without prejudice to any claim petitioner may have to restore for legal fees, as respondent failed to comply with the terms of the parties’ August 29, 2018 stipulation.Petitioner did reserve its right to restore this case to the calendar for legal fees in the stipulation, and respondent reserved his defenses, Gaisi v. Gaisi, 48 AD 3d 744 (2nd Dept, 2008). However, petitioner failed to append a copy of the parties’ lease, with an attorney’s fees provision. RPL Section 234. 1410 Avenue S Owners corp v. Chimarcv, NYLJ 713/2010 (AT 2nd Dept, 2nd, 11th & 13th Jud Dists) Petitioner’s papers failed to explain the relationship if any, between respondent “Akindayo Oladapo” and the individual “Philomena Oshuntole”, who is the only named tenant, and only tenant signatory to the 1994 lease appended to petitioner’s reply.Accordingly, the branch of the motion seeking restoration for legal fees is denied without prejudice to renew upon proper papers.This constitutes the decision and order of the court.November 20, 2018
