City Court of Cohoes, November 7, 2018

Tabner, Ryan & Keniry, LLP, Albany (Tracy L. Bullet of counsel), for petitioner.

Morgan Primo Culliton, respondent pro se.

Riverwalk on the Hudson, Inc., filed a nonpayment proceeding under RPAPL 711 (2) to evict Robert and Morgan Culliton. The petition alleged that the Cullitons owed $3,300 in past-due rent. On the return date, when the court officer called the case, Riverwalk answered; Robert Culliton did not; and Jacquelyn Henderson, Morgan Culliton's mother, asked the court if she could participate in the case on behalf of her daughter. The court issued a default judgment against Robert before acting on Henderson's request.^[FN1]

With respect to Morgan Culliton, the court explained to Henderson that she could not answer the petition or otherwise represent her daughter. However, since the court was convinced that Morgan was not ignoring her obligation to appear, it would not enter a default judgment against her. Instead, Henderson was placed under oath to explain why Morgan had [*2]failed to come to court.

Henderson testified that Robert had become abusive towards Morgan and that Morgan had vacated the apartment and sought shelter with her. Morgan, according to Henderson, was terrified to come to court and be in the presence of her husband. Finally, Henderson told the court that Morgan had no interest in returning to the apartment that her husband was occupying.

The court credited Henderson's testimony and found that Morgan had a legitimate excuse for failing to appear and{**62 Misc 3d at 353} answer the petition. Since Morgan lacked any interest in returning to the apartment, the court entered a judgment of possession in favor of Riverwalk. Nevertheless, Riverwalk still wanted a money judgment against Morgan for the rent arrears. Because Morgan had possible defenses against such a judgment, the court ordered a trial on the issue.^[FN2]

At trial, the evidence established that in late 2016, Morgan Culliton (then Morgan Primo) had rented a small apartment from Riverwalk. By October 2017, she had married Robert Culliton and the couple moved into a bigger apartment because they were expecting a child in December. Both Robert and Morgan Culliton signed the lease agreement which set rent at $1,100 a month plus utilities.

In December 2017, Morgan gave birth to a baby girl—after that things changed dramatically for the worse. Robert became controlling, abnormally jealous, disrespectful and short tempered. For example, Robert would confiscate Morgan's car keys so that she could not go anywhere. Robert also constantly accused Morgan of having an affair. As a result, he would take Morgan's phone away from her so that she could not contact anyone when he was gone. Further, Robert had the maintenance staff at Riverwalk monitor Morgan and report to him if anyone came to their apartment. The control extended to even simple hygiene; Morgan was only allowed to shower when Robert granted her permission. Moreover, he would humiliate Morgan by making cruel remarks about her appearance. Morgan told the court that this type of abuse occurred regularly—three to four times a week between January and May.

Robert's obsessive behavior crossed an indelible line when he threatened to kill Morgan (who was now pregnant again), her child and her unborn child. Morgan became so fearful that she fled the apartment. She, along with her baby girl, moved in with her mother for her safety and the safety of the child.

On May 25, 2018, Morgan filed a petition under article 8 of the Family Court Act seeking a temporary order of protection (Fam Ct, Albany County, Maney, J., index No. 2500-18). Family Court granted Morgan a full stay away order of protection that{**62 Misc 3d at 354} expired on June 8, 2018. On June 8, 2018, Family Court extended the duration of the order of protection to June 8, 2019, with certain modifications with respect to communications concerning their daughter (id.).

In early June, Morgan called Mary Jane Madden, Riverwalk's manager, to explain that she had vacated the apartment because of domestic violence issues. Madden requested documents to authenticate Morgan's allegations. On June 21, Morgan sent Madden copies of the [*3]orders of protection along with various police reports.^[FN3]

Madden acknowledged the receipt of the call and the documents. However, Madden was unsure if Morgan's testimony that she had vacated the apartment was completely accurate. Madden was present when the City Marshal evicted Robert from the apartment on August 10, 2018. She noticed women's clothes in the apartment, beauty accessories and a crib, the inference being that since Morgan's possessions were in the apartment, Morgan accessed and used the apartment up to and including the date of the eviction in August.

Morgan conceded that her possessions remained in the apartment. However, she had made a quick decision to leave, took what she could and left the rest behind. She said that she had never returned to the apartment and that while her daughter had been taken to the apartment to visit Robert, another person, and not her, brought the child for visitation. The court credits Morgan's testimony that she vacated the apartment at the end of May and never returned.

Finally, the evidence established neither Robert nor Morgan paid rent for June, July or August. The arrears amount to $3,300. Additionally, the Cullitons failed to pay the utility bill for June and July which amounted to $198. Thus the total owed under the lease agreement was $3,498.

At the close of the proof, Riverwalk made a simple but cogent argument. It noted that paragraph 7 of the lease agreement makes Robert and Morgan jointly and severally liable for the rent. That is, Morgan made a promise to be individually responsible for the entire rent obligation. Thus, under the lease agreement, Riverwalk can collect the entire $3,300 back rent from Morgan. Consequently, Morgan must pay Riverwalk unless{**62 Misc 3d at 355} either a statutory rule or common-law principle trumps the lease's joint and several liability clause. The court will examine each in turn.

Beginning with statutory defenses, Real Property Law § 227-c provides a method for victims of domestic violence to terminate a lease. Real Property Law § 227-c (1), in pertinent part, provides:

"[A] tenant for whose benefit any order of protection has been issued . . . shall be permitted to terminate [her] lease . . . and surrender possession of the leasehold premises . . . and to be released from any liability to pay to the lessor . . . rent . . . for the time subsequent to the date of termination of such lease in accordance with subdivision two."

Real Property Law § 227-c (2) sets forth the required procedural steps to terminate the lease.

Morgan qualifies for the protections afforded by Real Property Law § 227-c. However, Morgan, who appeared without a lawyer in either Family Court or this court, never invoked or sought the aid of Real Property Law § 227-c at any time. Morgan, the court surmises, was unfamiliar with the statute and sadly, nothing in the law requires a court to explain this important statutory right to victims of domestic abuse. Nevertheless, this court lacks the power to retroactively apply the protections of Real Property Law § 227-c for Morgan's benefit; therefore, the statute does not bar Riverwalk's recovery of rent arrears against Morgan.

Morgan may have a common-law contract defense that excuses her from liability. The question becomes whether Real Property Law § 227-c is the exclusive method for a domestic violence victim to be absolved from rent owed under a lease agreement. To this question, there is no obvious answer. On the one hand, the statute creates a right for a domestic violence victim to break a [*4]lease and there would be a thick irony to interpret such a statute to restrict or to eliminate other rights. On the other hand, the statute crafts a balance between victims' and landlords' economic rights and the balance having been set by the legislature should not be disturbed by a court.

Ultimately, whether Real Property Law § 227-c eliminates common-law contracts defenses to liability under a lease hinges on whether Real Property Law § 227-c "abrogates, or merely derogates, the common law. . . . Abrogation means the entire {**62 Misc 3d at 356}repeal and annulment of a law; derogation relates to the partial repeal or abolishing of a law, as by a subsequent act which limits its scope or impairs its utility and force" (Fumarelli v Marsam Dev., 92 NY2d 298, 306 [1998] [internal quotation marks and citation omitted]).

The strongest basis to find abrogation is the omission of a subdivision of Real Property Law § 227-c indicating that the common law remains intact. Indeed, the legislature has, in other sections of the Real Property Law, made its intentions not to abrogate other rights explicit. For example, Real Property Law § 227-d, which protects domestic violence victims from discrimination, contains a clause which provides: "Nothing in this section shall be construed as limiting, diminishing, or otherwise affecting any rights under existing law" (Real Property Law § 227-d [6]). Real Property Law § 227-c has no language or clause that mirrors Real Property Law § 227-d (6).

However, finding that a statute abrogates common-law rights by the omission of an explicit clause preserving them is not the preferred method of statutory construction. Rather, the "general rule of statutory construction [is] that a clear and specific legislative intent is required to override the common law" (Hechter v New York Life Ins. Co., 46 NY2d 34, 39 [1978]). Thus, "when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute" (Katz 737 Corp. v Cohen, 104 AD3d 144, 159 [1st Dept 2012] [internal quotation marks and citation omitted]; see e.g. Fleury v Edwards, 14 NY2d 334, 338 [1964] [holding that common law as to admissibility of evidence given by witness who has died was still applicable notwithstanding enactment of rule respecting admissibility of such testimony]). The court holds, therefore, that Real Property Law § 227-c neither displaces nor eliminates any common-law contract defense that may be available to Morgan.

The common-law doctrine of unconscionability seems applicable here. A term of a contract is unconscionable when it is shockingly unjust or unfair or because, procedurally, an unfair term was obtained through unconscionable means, or because of a combination of both factors (People v Two Wheel Corp., 71 NY2d 693, 699 [1988]). The doctrine is designed to prevent oppression (Rzepko v Gia Gem Trade Lab., 115 Misc 2d 755, 758 [Sup Ct, NY County 1982]). An issue of unconscionability is a matter to be decided by a court (Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398, 403-404 [1968]).{**62 Misc 3d at 357}

Normally, whether the contract is unconscionable in whole or in part is viewed from the time of its formation (see e.g. Real Property Law § 235-c [1] [allowing a court to void or limit "any clause of the lease to have been unconscionable at the time it was made" (emphasis added)]). In this case, nothing in the lease agreement is unconscionable on its face. The joint and several liability clause comports with traditional contract principles. It is simply a clause that allocates the risks between the parties and not in an unfair manner. After all, allocation of risk is an essential purpose of a contract (Comprehensive Bldg. Contrs. v Pollard Excavating, 251 AD2d 951, 952 [3d Dept 1998]). The Cullitons assumed the risk of nonpayment jointly—even if "unforeseen circumstances [were to] make performance burdensome" (Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902 [1987]).

This case is unusual in that the unconscionability inquiry revolves around events that [*5]occurred after the execution of the contract. Thus, at least initially, the question is whether a legitimate clause can be rendered impotent because its implementation in a peculiar circumstance produces an unconscionable result. That is, can a court declare a facially valid contract clause invalid as applied to a particular situation. There appears to be no New York authority directly answering this question.^[FN4] However, courts regularly distinguish between the facial validity and the as applied validity of a law (see e.g. People v Stuart, 100 NY2d 412, 421 [2003] [discussing the difference between facial validity and as applied validity]). The court will adopt what is routine statutory analysis to the contract issue here (cf. Slamon v Carrizo [Marcellus] LLC, 2017 WL 3877856, *4, 2017 US Dist LEXIS 143242, *10 [MD Pa, Sept. 5, 2017, No. 3:16-CV-2187, Mariani, J.] [noting that it is not unusual for courts to sometimes apply rules of statutory construction to aid their interpretations of a contract]).{**62 Misc 3d at 358}

The court will, therefore, determine if the joint and several liability clause is unconscionable when applied to the facts in this case. What gave rise to Morgan leaving her apartment was a judicial order which prohibited the Cullitons from living together. The order was necessary to protect Morgan from harm. Morgan, the victim, deemed that living with her mother was safer than the vulnerability of living alone in the apartment. Her choice allowed Robert to keep possession of the apartment—a fact that Riverwalk was aware of by early June. When June's rent went unpaid, Riverwalk did not seek an eviction; when July's rent went unpaid, it did not seek an eviction. Rather, Riverwalk waited all the way until August's rent was due before it made a case returnable in this court.

Riverwalk asks the court to hold Morgan responsible for $3,498 of rent arrears pursuant to the joint and several liability clause of the lease. The court will not do so. A woman who is a victim of domestic violence should not be forced to pay the rent of her abuser. To sustain the contrary proposition, as Riverwalk seeks, would be shockingly unjust and unfair which is the very definition of an unconscionable act (Black's Law Dictionary [10th ed 2014]). Therefore, the court holds that the joint and several liability clause, as applied to the facts in this case, is unconscionable and thus void as to Morgan Culliton.

No monetary judgment will be entered against respondent Morgan Culliton. The monetary judgment against Robert Culliton is undisturbed. Riverwalk's remedy for rent arrears lies against Robert Culliton alone.