ADAM SEIDEN, J.
Offeck & Heinz, LLP, Hackensack, New Jersey, Attorney for Petitioner.
Gary Johnson, pro se.
ADAM SEIDEN, J.
Petitioner brought this non payment proceeding to evict respondent alleging non-payment of rental and late fees originally at $2,742.00 covering the period from November 2015 through February 2016. After various discussions between the parties and the Court, motions to amend and credits yielded on the date of trial (April 5, 2016) petitioner sought $4,808.95 through April 2016.
Respondent testified that he was given a figure to pay through January 2016 and paid that amount. He is thereby arguing that one month of rent ($1,225.00) should be reduced from the total amount due. Further, respondent claims that the door lock on the front door was not fixed properly and needs to be redone. He stated “the door can be kicked in”.
Petitioner testified that the January rent was not paid, that respondent testified to payment to a “broker” and that petitioner does not use brokers. Petitioner also claims to have fixed the lock properly by retrofitting a new lock to the old door and stating that to do so one bolt was discarded in attaching the lock. However, respondent claims that without the use of the last bolt, the lock is not sturdy.
The Court allowed the parties to submit within ten days of trial photographs of the lock in question.
Payment is an affirmative defense. See, 24 Fifth Owners, Inc. v.. Kahan, NYLJ, May 25, 1994, p. 28, col. 4, Civil Ct. New York Cty. The burden of proof lies with the party asserting such argument. Id. The respondent failed to meet his burden that payment of the January rent was made. Little or no information was provided to the Court about how, when, where and to whom the alleged payment was made.
All photographs and other evidence concerning the lock indicate that it is, if not properly, securely put on the door in working condition. Further, the lock issue alone, even if found in respondent's favor would not raise the defects in the apartment to a level that would result in a breach of the warrant of habitability. Park West Mgmt. Corp. v. Mitchell, 47 N.Y.2d 316 (1979).
After hearing the testimony of the parties, judging their credibility and after reviewing the exhibits, the Court finds for petitioner. Judgment to petitioner in the sum of $4,808.95 for rental arrears through April 2016. The warrant of eviction is hereby stayed ten (10) days from service of a copy of this order with notice of entry.
The above constitutes the Decision and Order of the Court.
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