DOMESTIC VIOLENCE VICTIMS AND LEASE LIABILITY

RIVERWALK ON THE HUDSON, INC. v. Culliton, 2018 NY Slip Op 28350 - NY: City Court 2018:

"Beginning with statutory defenses, RPL 227-c provides a method for victims of domestic violence to terminate a lease. RPL 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 premise and 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." RPL 227-c (2) sets forth the required procedural steps to terminate the lease.

Morgan qualifies for the protections afforded by RPL 227-c. However, Morgan, who appeared without a lawyer in either Family Court or this court, never invoked or sought the aid of RPL 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 RPL 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 RPL 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 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 RPL 227-c eliminates common law contracts defenses to liability under a lease hinges on whether RPL 227-c "abrogates, or merely derogates, the common law. Abrogation means the entire 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. Inc., 92 NY2d 298, 306 [1998] [internal quotations and citations omitted, italics in the original]).

The strongest basis to find abrogation is the omission of a subdivision of RPL 227-c indicating that the common law remains intact. Indeed, the Legislature has, in other sections of the RPL, made its intentions not to abrogate other rights explicit. For example, RPL 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" (RPL 227-d [6]). RPL 227-c has no language or clause that mirrors RPL 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 RPL 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 by Abrams v. Two Wheel Corp., 71 NY2d 693, 699 [1988]). The doctrine is designed to prevent oppression (Rzepko v. GIA Gem Trade Lab., Inc., 115 Misc 2d 755, 758 [Sup Ct, New York 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, 403-04 [1968]).

Normally, whether the contract is unconscionable in whole or in part is viewed from the time of its formation (see e.g. RPL 235-c [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. Contractors Inc. v. Pollard Excavating Inc., 251 AD2d 951, 952 [3d Dept 1998]). The Cullitons assumed the risk of non-payment 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 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.^[4] 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 LLC, No. 3:16-CV-2187 (Mariani, J.), 2017 WL 3877856, at *4 (M.D. Pa. Sept. 5, 2017) (noting that it is not unusual for courts to sometimes apply rules of statutory construction to aid their interpretations of a contract])
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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 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."