2015 NY Slip Op 50089

Citation: 2015 NY Slip Op 50089
Jurisdiction: New York (state)
Source: Official source
Original Source: https://www.nycourts.gov/reporter/3dseries/2015/2015_50089.htm ↗

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Department in the matter of Gordon v. Eshaaghoff, 60 AD3d 807, 876 N.Y.S.2d 433
(A.D., 2d Dept., 2009), the landlord sued his tenants to recover for damages for alleged
breach of contract of a residential lease. The Supreme Court ruled in the landlord's favor
but precluded the collection of the tenant's security deposit or $50.00 per day as late fees
for all rent payments made within 10 days of the due date. The Appellate Court held,
inter alia, that the landlord could not recover the late fees reasoning that "[t]he
Supreme Court properly declined to award the plaintiff the sum of $50.00 per day as a
late fee While the lease provided that the landlord "may" impose the late fee, there was
no evidence submitted at trial to demonstrate that the plaintiff ever imposed the fee."

In the case at bar, it is important to review the late fee provision again to
determine if the amount of a late charge, if awarded, is reasonable and nonpunitive, and
bears some reasonable relationship to the amount of rent. Provision 3.3, entitled "late
charges" provides as follows: "[a]ll fixed rent, additional charges and any other sums
payable by tenant hereunder shall be paid to landlord without notice or demand or
without abatement, deduction or setoff. All fixed rent or other payment delinquent for a
period in excess of 10 days shall be subject to a late charge of 5% of the amount of the
delinquent payment. In addition, all sums owing hereunder shall, commencing 10 days
after their due date, their interest at a rate per annum equal to the "Prime Rate", as the
same may be charged from time to time and published in the Wall Street Journal, (the
"Interest Rate"), from the applicable due date. Tenant shall also pay any sales and use tax