Respondent ($18,750.00) and the fixed rent with the CPI increase for six years would
actually award the Petitioners a true windfall. The Petitioners would unfairly recover
monetary penalties against the Respondent for rent increases that the Petitioners did not
impose or collect in any manner whatsoever.
As significant, the Respondent was not responsible for the rent increases;
suffice it to say, the Petitioners were in complete control of the collection of rent and to
make a determination of any rent increases. Imagine the loud cries from the halls of
justice if this Court were to impose late fees for alleged delinquent rent payments under
these facts where no rent increases were ever paid or collected from the inception of the
lease in 2004 to May 31, 2013 between family members. These facts and the above
history of this property demand that there be no imposition of the late fees and [*23]interest. It is the opinion of this Court that such imposition
would be unreasonable and contrary to good public policy.
Second, while the lease states that late payment shall be "subject to a late charge",
there was no evidence submitted at trial to demonstrate that the plaintiff ever imposed the
fee." Gordon v. Eshaaghoff, 60 AD3d 807, 876 N.Y.S.2d 433 (A.D., 2d Dept., 2009).
This provision, in the opinion of this Court, is not absolutely mandatory; it gives the
Petitioners discretion to impose the fee. If the imposition of late payment was mandatory,
the Petitioner's would have imposed the late fee each month of delinquency prior to this
law suit. Here, the late fees and interest are being used to coerce Respondent's
performance rather than to compensate the Petitioner's for any breach of contract
(Pryamid Centres and Co., v. Kenny Shoe Corp., 244 AD2d 625, 663 N.Y.S.2d 711