| Park Haven, LLC v Robinson |
| 2014 NY Slip Op 51540(U) [45 Misc 3d 129(A)] |
| Decided on October 3, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 (Anne Katz, J.), dated May 15, 2013. The order denied tenant's motion to vacate a default final judgment in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, tenant's motion to vacate the default final judgment is granted, and the matter is remitted to the Civil Court for all further proceedings.
In this nonpayment proceeding, tenant pro se appeals from an order denying her motion to vacate a default final judgment awarding landlord possession and the sum of $11,150.45, and dismissing tenant's counterclaims.
In support of her motion to vacate the default final judgment, tenant asserted, among other things, that her rent was $1,449 per month and that the award to landlord of the sum of $11,150.45 was predicated on a lease provision which improperly allowed landlord to charge her an alleged "legal regulated rent" of $2,509 if she failed to timely pay her rent by the fifth of the month. The Civil Court denied tenant's motion, noting, among other things, that tenant admitted owing $2,096 and that tenant did not have the $2,096.
In our view, the Civil Court improvidently exercised its discretion in allowing the default final judgment in the amount of $11,150.45 to stand, as the lease's rent "discount" scheme provides for an increase that is, in fact, nothing more than an unconscionable late charge and penalty, in that the increase is excessive and grossly disproportionate to any damages that could be sustained as a result of tenant's failure to pay rent on time (cf. Sandra's Jewel Box v 401 Hotel, 273 AD2d 1 [2000]; 943 Lexington Ave. v Niarchos, 83 Misc 2d 803 [App Term, 1st Dept 1975]; VP Vil. Park, LLC v Victor, 40 Misc 3d 1233[A], 2013 NY Slip Op 51418[U] [Pleasant Valley Just Ct 2013]; see also Millenium Envtl., Inc. v City of Long Beach of State of NY, 35 AD3d 408 [2006]; contra 190 Washington Ave. Assoc., Inc v Velasquez, 10 Misc 3d 1060[A], 2005 NY Slip Op 52038[U] [Nassau Dist Ct 2005]; Clinton Realty, LLC v Beazer, 195 Misc 2d 786 [Nassau Dist Ct 2001]).
Accordingly, the order is reversed, tenant's motion to vacate the default final judgment is granted "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]) and the matter is remitted to the Civil Court for all further proceedings.
Pesce, P.J., Aliotta and Elliot, JJ., concur.