Kee Yip Realty Corp. v Wolinsky

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Kee Yip Realty Corp. v Wolinsky 2005 NY Slip Op 30492(U) September 13, 2005 Sup Ct, NY County Docket Number: 112985/03 Judge: Walter B. Tolub Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 912212005 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 15 --------__-__--_-___------__-----------x KEE YIP REALTY C O R P . , Indrx No. 112985/03 Mtn Smq. 003 Plaintiff, -againstSARAH W O L I N S K Y , "JOHN DOE" and Defendants. WALTER B. TOLUB, J.: This a c t i o n arises o u t of a disputed l e a s e f o r t h e m f t l1 floor of a commercial building l o c a t e d in downtown Manhattan and its subsequent conversion into an illegal residential apartment. P l a i n t i f f a n d defendant Ms. Wolinsky have t h u s f a r been p a r t y to no l e s s t h a n t h r e e actions concerning the s u b j e c t premises a n d have brought s e v e r a l motions for r e l i e f , o n e o f w h i c h was reviewed and decided by the Court o f Appeals. In June 1 9 9 7 , plaintiff Kee Yip Realty Corp. (Kee Yip) a n d defendant S a r a h Wolinsky (Wolinsky) entered into a commercial l e a s e for t h e fifth floor (the premises) of 135 G r a n d building). Under t h e terms of the l e a s e , occupy premises the Defendants ceased from J u l y paying rent 1, 1 9 9 7 on (the Ms. Wolinsky was to until February Street June 30, 1, 2000, and 2000. upon expiration of t h e lease, refused to vacate the premises. In March of 2000, prior t o the expiration of t h e l e a s e , M s . Wolinsky, along w i t h several other t e n a n t s o c c u p y i n g space w i t h i n the building commenced the action captioned S a r a h Wolinsky, David [* 2] L e v i n , Ben R e d d y , James Dawson-Hollis, John S a n t i a g o , Steve Lee and N i c h o l a s G u a g n i n i v. K e e Y i p Realty Corp., in Supreme C o u r t , N e w Y o r k C o u n t y . t h i s court, (Index No. 105231/2000) This a c t i o n , b r o u g h t b e f o r e sought a determination t h a t the tenancies a n d t h e u n i t s occupied w e r e s u b j e c t t o a n d protected by t h e Rant Stabilization Laws. By decision d a t e d J u l y 2, 2 0 0 2 , subject u n i t s , this c o u r t h e l d t h a t t h e including the unit occupied by M s . Wolinsky, w e r e not p r o t e c t e d by either the Loft Laws or t h e Rent Stabilization laws. This decision was subsequently a f f i r m e d by t h e Appellate Division F i r s t Department AD2d 327 (Wolinsky v . Kee Y i p Realty C o r p . , 3 0 2 [ l s tDept. 2 0 0 3 1 ) and t h e C o u r t of Appeals, which n o t only n o t e d the illegal conversion of the s u b j e c t premises, b u t p e r h a p s more significantly, that t h e units involved were incapable of becoming legalized residential apartments ( W d i n s k y v. Kee Yip Realty Corp, 2 NY3d 4 8 7 [ 2 0 0 4 ] ) . While holdover Wolinsky was proceedings pending, against the Kee plaintiff Yip commenced individual t e n a n t s involved, including Ms. Wolinsky, in the New York City C i v i l Court/Cammercial Landlor I Part. Corp. v v. L e e These cases, bearing the captions, Kee Y i p R e a l t y F l o r e s , (Index No. L&T 0 8 8 3 2 1 / 2 0 0 2 ) ; Kee Y i p Realty Corp. v. Wolinsky Index No. L & T 0 8 8 3 2 / 2 0 0 2 ; (Index No. 0 8 8 3 2 4 / 2 0 0 2 ; Kee Y i p R e a l t y Corp. and Kee Y i p Realty C o r p . v . R e d d y (Index No. 0 8 8 3 2 5 / 2 0 0 2 ) were heard b e f o r e Hon. Karen Smith. a f t e r conducting hearings between J a n u a r y 2 4 / 2 Judge S m i t h , 2 0 0 3 and May 15, [* 3] 2003, dismissed the commercial petition on t h e basis that the premises were in fact, knowingly used for residential purposes: [Kee Yip] knew from t h e outset t h a t these t e n a n t s i n t e n d e d t o and did in fact reside in these units a n d acquiesced i n t h e residential u s e o f t h e premises. The l e a s e r i d e r ' s provision stating t h a t the premises c o u l d only be u s e d for commercial purposes, r e l i e d upon by t h e petitioner t h r o u g h o u t t h e hearings, was n o t h i n g more t h a n a n attempt to d i s g u i s e t h e fact [that] the premises were being used for residential purposes so as to avoid liability f o r a n y violations which may have been imposed by building inspectors. In this regard, t h e court credits t h e testimony of respondent Sarah Wollinsky [sic] t h a t petitioner's president, Mrs. Lee, t o l d her from t h e inception that s h e c o u l d live these but that she w o u l d have to h i d e her bed a n d t o o t h b r u s h when the i n s p e c t o r came a r o u n d " (Affirmation i n O p p o s i t i o n , Exhibit D, Kip Yee (sic) Realty C a r p . v. F l o r e s , e t . a l . (Lead Index No. L&T 088321/2002 Civ. C t . May 28, 2 0 0 3 , Smith, J . ) ) . "petitioner I n J u l y 2 0 0 3 , w h i l e Appellate Division's decision in Wolinsky was on appeal, plaintiff commenced the i n s t a n t a c t i o n . Comprised of f o u r causes of a c t i o n , plaintiff seeks possession of the subject premises (first cause of action), use and occupancy (second c a u s e o f action), r e a l e s t a t e t a x e s alleged owed under the lease (third cause of (fourth action), and legal fees a l l e g e d owed u n d e r the lease cause of action). The instant motion seeks summary j u d g m e n t on a l l four c a u s e s of action. Discussion A t t h e o u t s e t , recognizing that t h i s is a motion for summary 3 [* 4] judgment, the r o l e of this Court is s t r i c t l y limited t o finding issues, a n d not resolving them ( S i l l m a n v . T w e n t i e t h Century-Fox Film 3 NY2d Corp., Center, NY2d 64 395 851, W i n e g r a d v New York U n i v . [1957]; 853 [1985]; B a r r , Altman, Gerstman; N e w York C i v i l Practice B e f o r e T r i a l , 2004 J 5 3 7 : 91-92) Lipshie, Med. and (James Publishing . It is t h e r e f o r e the burden of t h e opposing p a r t y to p r o d u c e evidentiary proof in admissible form that is s u f f i c i e n t to establish the existence of material issues of fact r e q u i r i n g trial. Mere conclusions, expressions of hope, o r unsubstantiated a l l e g a t i o n s are insufficient for this p u r p o s e ( Z u c k e r m a n v. City of N e w York, 49 N Y 2 d 557 [1980]), a n d , if there is any d o u b t t h a t t r i a b l e issues of fact exist, summary judgment will not be g r a n t e d . If a f t e r searching the r e c o r d however, t h e court determines that summary judgment in f a v o r of t h e nonmoving p a r t y is more appropriate, the court, pursuant to CPLR discretion t o award judgment where appropriate. 3212(b), Abramovitz v . Paragon S p o r t i n g Goods C o . , D e p t . 19941 ) With the Moreover, it can do so notwithstanding the absence of a cross-motion Niagra M o h a w k P o w e r Corporation, 2 0 6 AD2d 891 has ( S m e r k a v. [ 4 t h Dept. 19941; Inc., 2 0 2 A D 2 d 2 0 6 [ l T t . respect to plaintiff's f i r s t cause of a c t i o n , on the basis of the determination o f t h e Court o f Appeals, t h e r e i s no question t h a t the premises presently occupied b y Ms. Wolinsky are illegal, a n d t h a t plaintiff has an absolute sight to immediate 4 [* 5] p o s s e s s i o n 1 of those premises. the fixst cause of action Accordingly, summary j u d g m e n t on is granted. Summary judgment on p l a i n t i f f s remaining causes of action are however, denied. The subject premises, as determined b y t h e C o u r t o f Appeals, illegal incapable of becoming legalized residential apartments b y virtue o f p r e s e n t zoning restrictions. Therefore, are and regardless of what theory is employed, p l a i n t i f f cannot collect rent/use and occupancy, and cannot collect t a x e s alleged to be owed u n d e r the lease. Ms. Wolinsky, illegal The lease e n t e r e d i n t o as between p l a i n t i f f a n d by v i r t u e contract, V a l e n z a v. C o u t i e r , plaintiff of t h e premises being illegal, and c a n n o t be by the courts Inc., 2 8 8 A D 2 d 1 1 4 [ l S t Dept. 2 0 0 1 1 ) . cannot collect r e n t c a n n o t o c c u p y them. enforced f o r t h e premises is an (see, A s such, and defendants Accordingly, it i s ORDERED that summary judgment is g r a n t e d a s t o plaintiff s f i r s t cause o f a c t i o n f o r possession o f t h e fifth f l o o r premises o f 135 G r a n d Street; a n d i t is further O R D E R E D that t h e remaining portions of plaintiff s motion for summary j u d g m e n t on t h e second, t h i r d , and fourth c a u s e s of a c t i o n a r e d e n i e d ; and it is further ORDERED that summary judgment is g r a n t e d to defendants on t h e Plaintiff also h a s a stipulation e n t e r e d into in open court on December 17, 2 0 0 4 which granted t h e plaintiff t h e right to enter order and judgment of possession/warrant of eviction/ judgment of possession/ w r i t of assistance as to the f i f t h f l o o r premises (Reply, Exhibit A ) , 5 [* 6] F * ' second and t h i r d causes of a c t i o n , the lease being u n e n f o r c e a b l e , and it is further ORDERED t h a t the remaining f o u r t h cause of action is denied and dismissed as moot, a s the underlying lease is unenforceable; and it is f u r t h e r ORDERED that the within complaint i s dismissed; a n d it is further ORDERED that the Clerk is directed to enter judgment accordingly. This memorandum o p i n i o n constitutes the decision and o r d e r of the C o u r t . HON . WALTER 6 A. TOLUB, J. S C .

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