| Diversified Equities, LLC v Russell |
| 2016 NY Slip Op 50177(U) [50 Misc 3d 140(A)] |
| Decided on February 10, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Ronni Dale Birnbaum, J.), dated August 19, 2014. The order granted tenant's motion to vacate a default final judgment and warrant to the extent of staying the execution of the warrant for payment of $1,566.45 in a nonpayment summary proceeding.
ORDERED that the order is affirmed, without costs.
In this nonpayment proceeding, upon tenant's motion to vacate a default final judgment awarding landlord possession and the warrant issued pursuant thereto, the issue determined by the Civil Court, pursuant to a stipulation of the parties, concerned the effect to be given a "rent concession rider." The lease states that the legal regulated monthly rent is $1,339.33 and that a reduced rent of $1,185.25 would be charged pursuant to an attached agreement. The rider provides that tenant could pay the discounted rent of $1,185.25 if she timely paid her rent by the fifth of the month. The court granted tenant's motion to the extent of staying the execution of the warrant for the payment of $1,566.45, implicitly holding that the rent concession is to be considered a preferential rent and, apparently, that a preferential rent cannot fluctuate monthly (citing Hillside Place, LLC v Nguma, NYLJ 1202666526999, *1 [Civ Ct, Queens County 2014]).
In our view, the lease and rent-concession rider provide, in effect, for a late monthly charge of 13%, which is excessive and grossly disproportionate to any damages that could be sustained as a result of tenant's failure to pay rent on time, and, thus, the collectible rent is the discounted rent set forth in the lease and the rider (see Park Haven, LLC v Robinson, 45 Misc 3d 129 [A], 2014 NY Slip Op 51540[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Lal Little Italy MGMT. Co., LLC v Aldrete, NYLJ 1202737081842, *1 [Civ Ct, Bronx County 2015] ["discount" rent scheme resulted in impermissible 13% monthly late fee]; see also Wilsdorf v Fairfield Northport Harbor, LLC, 34 Misc 3d 146[A], 2012 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012] [monthly late fee of 10% is an unenforceable penalty]). Accordingly, the order is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.