Tenant declared nuisance for chronic non-payment.

"Three strikes and your out!" This has been the cry of the umpire since the days when Abner Doubleday invented baseball. It has also become a slogan for those politicians hoping to prove their adherence to a strong criminal justice program. Recently, a Civil Court Judge found that after three non-payment strikes, the fourth warranted the tenant being called "out" of the apartment at issue.

In Century Apts. Assocs., v. Postel, the owner had brought a holdover proceeding alleging that the tenant had committed a nuisance via his chronic delinquency in the payment of rent. The owner alleged that it had been forced to commence four nonpayment proceedings in a 16-month period (March 1994 through August 1995) to collect rent accrued between April 1993 and November 1935. Rather than proceed via yet another nonpayment proceeding, the owner asserted that the tenant's chronic conduct rose to the level of a nuisance, warranting eviction.

The tenant moved to dismiss, asserting that the notice of termination needed to be served in the same manner as the petition. The court denied the motion, finding that service of the termination notice via mail complied with Rent Stabilization Code Section 2524.2(c).

The tenant, alternatively, soughs summery judgment, with the owner cross moving for summary judgment. Such motions assert that the dispute does not involve any triable issues of fact, such that the court can determine the legal dispute on the legal papers, without the necessity of a trial. The tenant premised his motion upon a claim that his rent defaults were not willful, but were the result of financial hardship. In addition, the tenant posited that his withholding of rent was justified, as a means of forcing the owner to make required repairs.

Belkin Burden Wenig & Goldman LLP Partner Jeffrey L. Goldman opposed the tenant's motion and predicated the owner's motion upon a showing of the number of non-payment proceedings that the owner had been forced to commence. Judge Marcy Friedman found that such proof by the owner was insufficient to shift the burden to the [the tenant] to demonstrate the existence of a triable issue of fact." In addition, the Court accepted the owner's argument that the tenant's "financial hardship" defense cannot be supported via "undocumented assertions," particularly in light of the fact that the tenant did "not even now represent that his financial problems have been remedied so that he will be able to pay his future rent on a timely basis."

As to the tenant's defense based upon the claimed need for repairs, the Court emphasized that the tenant had been represented by experienced counsel on all prior proceedings, yet all prior nonpayment proceedings had been settled without any set-off or abatement for repair problems. Moreover, like the "financial hardship" claim, the "repairs defense" was unsupported by "detail or documentation." Most crucial was the complete absence of any proof of complaints to the owner about conditions in the apartment or that the nature of the alleged repairs rose to the level of breaches of the warranty of habitability so as to warrant the withholding of rent.

Judge Friedman, therefore, granted summary judgment to the owner, directed the clerk to enter a judgment of possession in favor of the owner and set the matter down for a hearing on the owner's attorney's fees.

The Court's cogent decision appropriately addressed a series of issues. First, a tenant's affirmative defense must be proven via competent evidence; mere conclusory allegations are insufficient. Second, all service/ repair issues do not rise to threshold of a breach of the warranty of habitability. Minor repairs or service disputes, even if determined in the tenant's favor, would not excuse (even partially) the tenant's obligation to pay rent. Last, an owner is entitled to have its rent paid when due. If the tenant does not or cannot meet this most basic obligation, the owner should be entitled to recoup possession, rather than being relegated to a series of endless non-payment proceedings.