| Kenmore Assoc., L.P. v Burke |
| 2008 NY Slip Op 50407(U) [18 Misc 3d 1142(A)] |
| Decided on February 21, 2008 |
| Civil Court Of The City Of New York, New York County |
| Cohen, J. |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Kenmore Associates,
L.P., Petitioner - Landlord,
against Brian Burke, Respondent - Tenant. |
Upon the foregoing cited papers, the Decision/Order on these motions is as follows:
This non-payment proceeding was commenced by petitioner for rent arrears
stemming from April 2005 to the present. Currently before this court is whether respondent has
waived his right to a jury trial.
Among other items, respondent submitted a jury demand with his omnibus motion pursuant
to CPLR 2218. Respondent bases his entitlement to a jury trial upon the initial lease he entered
into in November 1997 for a one year term.
On November 22, 1997 petitioner and
respondent entered into a form rent stabilized lease agreement that contained a jury waiver
provision and, at the same time, and incorporated as part of the same document, petitioner and
respondent entered into a Section 8 rent subsidized rental agreement that included a provision
invalidating any jury waiver that may have been included elsewhere in the rental agreement. The
Section 8 provisions were expressly incorporated as part of the rent stabilized lease at the time
the documents were signed. These lease agreements ("the 1997 lease") expired by their terms on
November 21, 1998. The 1997 lease is the only lease provided to the court. Since its expiration,
respondent has continued to live in the apartment. It is undisputed that respondent's Section 8
subsidy has been terminated, he is no longer receiving Section 8 benefits and remains a rent
stabilized tenant. Petitioner argues that since respondent's participation in the Section 8 program
has come to an end, the Section 8 lease provisions incorporated into the original lease no longer
apply and the jury waiver is valid and in effect.
In residential cases, a jury waiver clause in a lease is binding between the parties and will bar
a trial by jury in litigation covered by the provisions of the lease (see Waterside Holding
Corp. v Lask, 233 AD 456, 457 [1st Dept 1931]); Fowler Court Tenants Inc. v
Young, 119 Misc 2d 492, 493-494 [Civ Ct, NY County 1983]); Pierre v Williams,
106 Misc 2d 81, 83 [Civ Ct, NY County 1980] [court upheld a waiver clause in a residential
lease in a dispute arising from warranty of habitability claims]). Although warranty of
habitability claims cannot be waived and are statutorily protected, the manner in which disputes
arising from them are handled is not mandated and parties are free to waive their right to a jury
trial (Pierre v Williams, 106 Misc 2d at 84).
However, because the right to a trial by jury is fundamental and courts indulge every
reasonable presumption against a finding of a waiver (Aetna Ins. Co. v Kennedy, 301 US
at 393), the burden of proving a waiver rests upon the party seeking to enforce it (Street v
Davis, 143 Misc 2d 983, 985 [Civ Ct, NY County 1989]; see also Williams v
Mascitti, 71 AD2d 813, 813 [4th Dept 1979]). Petitioner seeks to strike respondent's request
for a jury trial and, as such, has the burden of demonstrating to this court that respondent waived
his right to a jury trial.
Respondent retains all the protections of a rent stabilized tenant even though his Section 8
subsidy has expired (see Dick v Strachan, 136 Misc 2d at 81, citing Matter of Fishel v
New York City Conciliation and Appeals Bd., 123 Misc 2d 841 [Sup Ct, Kings County
1984]). The Rent Stabilization Code (9 NYCRR) requires that landlords provide renewal leases
requested by a rent stabilized tenant (RSC § 2522.5 [b] [1]) and that every renewal lease be
offered "on the same terms and conditions as the expired lease" (RSC § 2522.5 [g] [1];
Rosario v Diagonal Realty, LLC , 8 NY3d at 761; Evans v Schneider, 2 Misc 3d
139 [A], 2004 NY Slip Op 50268 [U], *1 [Sup Ct, App Term 2004]). No renewal leases have
been submitted by either party. Where a rent stabilized tenant fails to timely renew an expiring
lease, "such lease or rental agreement may be deemed to have been renewed upon the same terms
and conditions . . . had the offer of a renewal lease been timely accepted" (RSC § 2523.5
[c] [2]). Similarly, where a landlord fails to offer a renewal lease, "the tenant shall continue to
have the same rights as if the expiring lease were still in effect" (RSC § 2523.5 [d];
Rosario v Diagonal Realty, LLC, 8 NY3d at 764 [landlord's obligation to continue to
accept Section 8 subsidies is part and parcel of requirement that renewal leases under Rent
Stabilization Code be renewed with the "same terms and conditions" as the expired lease];
see also Kouznetski v Verga Assoc., NYLJ, July 10, 2002, at 29, col 2 [Sup Ct, Kings
County] [notation on initial rent stabilized lease concerning tenant's Section 8 subsidy
incorporated into each subsequent renewal lease]).
Although respondent's Section 8 subsidy has terminated, the provision invalidating a
jury waiver remains part and parcel of the only lease between the parties ever presented to this
court (see supra), and the court will not presume the tenant's intent to waive so
fundamental a right as the right to a trial by jury without clear evidence (see Aetna Ins. Co. v
Kennedy, 301 US at 393). No rent stabilized lease for the time period covered in this
non-payment proceeding has been provided to the court which would demonstrate that a jury
waiver is currently in effect (see Dick v Strachan, 136 Misc 2d at 81). Petitioner has thus
failed to demonstrate the tenant's "clear, knowing and intelligent" waiver of his right to a trial by
jury (see 407-88 Assoc. v Sawyer, 83 Misc 2d at 301). As such, petitioner has not met its
burden of proving respondent's waiver of his right to a jury trial.
The court has considered respondent's remaining claims and finds them to be entirely
without merit, and has considered petitioner's remaining arguments and finds them to be
meritorious.
Accordingly, for the reasons set forth herein, respondent's omnibus motion
III and IV are denied in all respects except that respondent's demand for a jury trial is not
stricken. Petitioner's cross motion is granted in its entirety except that respondent's second
unnamed affirmative defense of a jury demand is not stricken. The matter is restored to the
court's calendar on March 11, 2008, Part H, Room 1164B at 9:30 A.M. for trial.
This constitutes the decision and order of the court.
[*4] The clerk shall serve a copy of this decision and order
upon all parties.
New York, New York
________________________________DAVID B. COHEN, J.H.C.
Attorney for Petitioner
875 Third Avenue, 18th Floor
New York, NY 10022
By: Dean M. Roberts, Esq.
Brian Burke
Respondent Pro Se
143-147 East 23rd Street
Room 4-R
New York, NY 10010
Generally, the right to a jury trial is so fundamental
that courts "will indulge every reasonable presumption against waiver" (Aetna Ins. Co. v
Kennedy, 301 US 389, 393 [1936]). As such, jury trial waivers are always strictly construed
and are not to be inferred or extended by implication (Barrow v Bloomfield, 30 AD2d
947, 947 [1st Dept 1968]). In both civil and criminal cases, where a waiver of a jury trial is
asserted, the burden rests with the party who seeks to enforce it and there must be a showing that
the waiver was a clear, knowing and intelligent waiver, and that the waiver was voluntary and
intentional (407-88 Assoc. v Sawyer, 83 Misc 2d 300, 301 [Civ Ct, NY County 1975]).
Once a jury trial is properly waived, courts will not interfere with the waiver (see Matter of
Malloy, 278 NY 429, 433 [1938]).
Dated:February 21, 2008
TO:Norris, McLaughlin & Marcus, P.A.