Bruckner Realty LLC v Cruz

[*1] Bruckner Realty LLC v Cruz 2015 NY Slip Op 50319(U) Decided on March 16, 2015 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 16, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570004/15

Bruckner Realty LLC, Petitioner-Landlord-Respondent,

against

Jeannette Cruz, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered September 4, 2014, which granted landlord's motion to dismiss tenant's defenses and for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Joseph E. Capella, J.), entered September 4, 2014, modified by denying those branches of landlord's motion which were to dismiss tenant's second and third "affirmative defense[s]," first and second "defense[s]," and for summary judgment of possession; as modified, order affirmed, without costs.

This "commercial" holdover proceeding, brought upon the termination of tenant's written "garage lease" agreement, seeks to recover possession of garage space situated in the building premises in which tenant's rent stabilized apartment is located. Following tenant's interposition of a general denial, landlord moved for summary judgment of possession, by notice of motion dated July 2, 2014, which motion was denied by order dated July 14, 2014 (Elizabeth A. Taylor, J.). Within two weeks of the court's denial of landlord's initial summary judgment motion, landlord moved to strike certain defenses contained in tenant's amended answer and, again, sought summary judgment of possession on the holdover petition. The court (Joseph E. Capella, J.) granted landlord's second motion, reasoning that no triable issue was raised as to whether the garage space was an ancillary service under rent stabilization.

That branch of the more recent of the landlord's motions seeking summary judgment of possession should have been denied, since it violated the general proscription against successive summary judgment motions, landlord having previously moved for such relief a scant two weeks earlier (see Phoenix Four, Inc. v Albertini, 245 AD2d 166 [1997]). The denial of the original motion for summary judgment established the law of the case and required the denial of the subsequent motion in the circumstances herein (see Levitz v Robbins Music Corp., 17 AD2d 801 [1962]). Tenant's service of an amended answer containing additional defenses "did not tender any new issue" insofar as the possessory claim was concerned, so as to undermine the efficacy of the law of the case to that claim (id.).

In any event, even were we to address the merits, summary judgment was unwarranted. [*2]Landlord failed to sustain its burden of eliminating all triable issues as to whether the garage space was a required ancillary service under rent stabilization (see Rent Stabilization Code [9 NYCRR] § 2520.6[r][3]; see also Matter of 110—15 71st Rd. Assoc., LLC v. New York State Div. of Hous. & Community Renewal, 54 AD3d 679 [2008], lv denied 12 NY3d 712 [2009]). In this regard, the record is bereft of any evidence as to the nature and chronology of landlord's provision of garage service, absent which an informed determination on the coverage issue cannot be made (see Matter of Northern Star Realty Co. v State of New York Div. of Hous. & Community Renewal, 62 AD3d 866 [2009]; Royal Terrace Assoc. LP v Singh, 39 Misc 3d 135[A], 2013 NY Slip Op 50582[U] [App Term, 1st Dept 2013]).

Turning to the remaining branch of landlord's motion, we note that so much of the motion seeking to strike the defenses in tenant's amended answer is not barred by the rule against successive summary judgment motions, since the prior motion was based on tenant's answer of general denial. Tenant's defense challenging the subject matter jurisdiction of the court to grant landlord the possessory relief demanded should not have been dismissed at this juncture. Were the garage space ultimately determined to be an ancillary service, landlord could not modify or discontinue that service without DHCR approval (see Rent Stabilization Code [9 NYCRR] § 2522.4[e]). Thus the dismissal of this defense is dependent upon resolution of the pending coverage issue (Royal Terrace Assoc. LP v Singh, supra). In like fashion, landlord's motion to strike the retaliatory eviction defense based upon the putative commercial nature of the garage rental should also have been denied.

We sustain the dismissal of tenant's personal jurisdiction and waiver defenses. Tenant failed to rebut the presumption of valid service created by landlord's process server's affidavit (see Madison Acquisition Group, LLC v 7614 Fourth Real Estate Dev., LLC, 111 AD3d 800, 800 [2013]). Further, landlord's acceptance of use and occupancy after the within proceeding was commenced, in accordance with the parties' interim stipulation, did not constitute a waiver of the right to maintain the proceeding.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concur I concur
Decision Date: March 16, 2015