Also called Chronic Rent Delinquency, a landlord in NYC may bring a Chronic Non-Payment Holdover proceeding, claiming the tenant has committed a substantial breach of the lease by his/her chronic non-payments, forcing the landlord to commence a number of non-payment proceedings within a short period of time.
Below is a discussion from the August 13, 2014 New York Law Journal. Also below is the decision in Herald Towers from 2001 with a discussion whether or not a Chronic Non-Pay is "curable," thereby requiring a landlord to serve a Notice to Cure prior to the Notice of Termination and petition in a new holdover proceeding.
Landlord-Tenant—Chronic Non-payment Holdover Proceeding Dismissed—Four Non-payment Proceedings Were Insufficient to Sustain A Chronic Delinquent Holdover Proceeding Where Only Two Resulted In Judgments Against the Tenant and the Tenant Had Asserted Warranty of Habitability Defenses
A landlord commenced a chronic non-payment holdover proceeding against a rent-stabilized tenant. The tenant moved to dismiss "on the grounds that the four non-payment proceedings upon which this proceeding" was predicated upon are "insufficient to support the commencement of a chronic non-payment proceeding."
The court explained that:
[in a chronic non-payment holdover proceeding] there is no "magic number" of prior proceedings required, as each case is sui generis"….While there is no "magic number," courts have found that the commencement of frequent non-payment proceedings in a short amount of time, due to a tenant's "'long term, unjustified and persistent failure' to pay rent as it became due" meets the requirements in a chronic non-payment petition….
The landlord had commenced "four non-payment proceedings against the [tenant]—two in 2010, which resulted in judgments, one in 2012 and one in 2013, for a total of four proceedings in four years." The tenant had asserted "a warranty of habitability defense in the 2012 and 2013 proceeding[s], and the DHCR issued a rent reduction order due to violations at the premises" in 2013.
The court held that in view of the tenant's "warranty of habitability defenses asserted…, the issuance of rent reduction order…for violations at the premises, and the lack of frequency of cases in the past four years," the proceeding should be dismissed. The court emphasized that only two non-payment proceedings resulted in judgments against the tenant, warranty of habitability defenses had been asserted, and the tenant had resided in the apartment for 20 years. Additionally, "in the two most recent proceedings, the [tenant] satisfied the petitions in court…." The court concluded that the alleged predicate proceedings did "not demonstrate that the tenant has breached a substantial obligation of his tenancy" and the court dismissed the proceedings with prejudice.
Kerem Realty v. Hussein, 91560/13, NYLJ 1202655815017, at *1 (Civ., KI, Decided May 7, 2014), Scheckowitz, J.