Porto v Watts

[*1] Porto v Watts 2006 NY Slip Op 50436(U) [11 Misc 3d 1069(A)] Decided on February 22, 2006 Civil Court Of The City Of New York, New York County Jackman-Brown, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2006
Civil Court of the City of New York, New York County

JOSEPH PORTO, Petitioner,

against

JOMO WATTS, Respondent,



88153/05



Attorney for Petitioner:

Borah Goldstein Altschuler

Schwartz & Nahins, P.C.

BY: James C. Mantia, Esq.

377 Broadway

New York, NY 10013

212-431-1300

Attorney for Respondent:

Gary J. Wachtel, Esq.

545 Madison Avenue, Suite 703

New York, NY 10022

212-371-6500

Pam B. Jackman-Brown, J.

Petitioner commenced this proceeding to recover the subject rent-controlled apartment #9 which is located at 100 West 113th Street, New York, New York. Prior to commencing this proceeding Petitioner served a predicate Notice of Termination. He alleged that Respondent was charging other occupants in the subject apartment more than the legal regulated rent of $235.00 per month and that Respondent had more than the

maximum number of roommates allowed pursuant to RPL §235-f in the apartment.

Respondent moves for an order granting summary judgment and dismissing the petition. Respondent states that he has one roommate, he is not subletting nor is he profiteering from his roommate. In his motion, he seeks dismissal based on the Petitioner assumption that he is overcharging his roommate. He argues that there is no provision in the rent control regulations [*2]which prohibit a tenant from charging a roommate more than his pro-rata share of the rent.

Petitioner cross-moves for an order to grant leave to conduct discovery, to dismiss or sever Respondent's affirmative defenses and counterclaims and to grant use and occupancy pendente lite. Petitioner argues that Respondent is collecting more than twice the legal monthly rent from other occupants and on this basis he has a right to evict him for profiteering.

While Rent Stabilization Code 9 NYCRR § 2525.7 prohibits a tenant from charging a roommate a disproportionate share of the legal rent, there is no analogous provision in the rent control regulations. See, 270 Riverside Drive, Inc. v Braun, 4 Misc 3d 77 (App Term, 1st Dept 2004). The courts have consistently held that this Rent Stabilization Code section cannot be read into the Rent Control Regulations. Since the additional provision of Rent Stabilization Code §2525.7 was part of an extensive revision of the four rent codes by the New York State Department of Housing and Community

Renewal, the omission of any section prohibiting a tenant from charging a roommate a disproportionate share of the rent from the Rent Control Regulations cannot be considered a mere oversight. Id. citing Sullivan v Brevard Assoc., 66 NY2d 489 (1985). Thus, no possessory proceeding lies against a rent-controlled tenant who overcharges a roommate. (270 Riverside Drive, Inc. v Braun, supra; WSC 72nd Street Owners LLC v Bondy, 9 Misc 3d 126 [A], 2005 NY Slip Op 51432 [U] [App Term, 1st Dept]; Ishida v Markowitz, 18 AD3d 502 [2nd Dept 2005]; Leonori Associates v Sultan, 7 Misc 3d 238 [Sup Ct, NY County 2005].) While no possessory proceeding may be maintained against a rent-controlled tenant who overcharges a roommate, a possessory proceeding maybe maintained against a rent-controlled tenant who overcharges a subtenant (BLF Realty Holding Corp. v Kasher, 299 AD2d 87 [1st Dept 2002]; WSC 72nd Street Owners LLC v Bondy, supra; Ishida v Markowitz, supra).

In this case, although the notice of termination states that Respondent is overcharging his subtenants, it is clear that this case involves a roommate situation. In Petitioner's affidavit in support of his cross-motion, he claims that from his observation he believes at least three other individuals are residing in the apartment with Respondent. No mention of a sub-tenancy is made in Petitioner's motion papers. Indeed, Petitioner's

attorney states that this proceeding is based on Petitioner's claim that Respondent has more roommates than is allowed by law and that Respondent is charging his roommates

more than the legal rent (Affirmation in support of cross-motion, para. 52; Affirmation in reply, para. 4). Respondent counters in his moving papers that Kristen Starkes was his roommate. After she moved out, he took in another roommate named Brandon Burtts. He only has one roommate in his apartment. His five-year-old daughter, Simone Branch, comes to visit occasionally and stays for a few days. Respondent-Undertenant, Kristen Starkes, confirms that during her occupancy only she and Respondent lived in the apartment. Accordingly, this case involves a rent-controlled tenant allegedly overcharging his roommate. Therefore, Petitioner may not maintain an eviction proceeding based on this ground.

In support of his claim that he may evict the Respondent for profiteering, Petitioner relies on BLF Realty Holding Corp. v Kasher, 299 AD2d 87 (supra); Hurst v Miske (133 Misc 2d 362 [*3][Civ Ct, NY County 1986]; Continental Towers Limited Partnership v Freuman (128 Misc 2d 680 [App Term, 1st Dept 1985]; and 41 West 72 LLC v Bondy, 2003 NY Slip Op 50810 [U] [Civ Ct, NY County]). Petitioner argues that where a rent-controlled tenant collects a substantial overcharge he may be evicted. In addition, Petitioner points to New York City Rent and Eviction Regulations 9 NYCRR §2205.1 which provides that it is unlawful for any person to receive rent for any housing accommodation in excess of the legal rent. It is Petitioner's position that since Respondent is receiving more than the legal regulated rent for the apartment, he is in violation of the above regulation and may be evicted.

The cases cited by Petitioner are distinguishable from the instant proceeding.

The Appellate Term, in 270 Riverside Drive, Inc. v Braun 4 Misc 3d at 79, which held that a landlord could not maintain a proceeding against a rent-controlled tenant who charged his roommates more than the monthly legal regulated rent, distinguished the BLF Realty Holding Corp. case by stating inter alia that "that case is both legally and factually distinguishable in that it addresses the interplay between the Loft Law and the Rent Stabilization Law, and concerned a tenant who subdivided and sublet his loft space." Continental Towers Limited Partnership v Freuman,128 Misc 2d 680, supra, involved the sublet of a rent stabilized apartment and Hurst v Miske, 133 Misc 2d 362, supra, involved the sublet of a rent-controlled apartment.

In 41 West 72 LLC v Bondy, 2003 NY Slip Op 50810, supra, a rent-controlled tenant charged various roommates a rent which exceeded the legal rent for the apartment. The court held that the rent stabilization rules prohibiting a tenant from charging a roommate more than a proportionate share of the rent could not be applied to rent-controlled apartments. However, the court held that since the tenant was charging

the roommates more than the legal regulated rent, the tenant was in violation of Rent and Eviction Regulations §2205.1. Thus, the court held that Petitioner stated a viable cause of action. However, 41 West 72 LLC v Bondy (supra) was modified by the Appellate Term

in WSC 72nd Street Owners LLC v Bondy (supra).[FN1] Despite the allegations that the rent-controlled tenant was charging her roommates in excess of the legal rent for the apartment, Appellate Term modified the lower court's decision and granted tenant's motion for summary judgment dismissing the petition.

In Ishida v Markowicz (supra), the defendant, rent-controlled tenant, was charging the plaintiff more than the legal rent for the entire apartment. The plaintiff commenced an action to recover the rent overcharge. The Appellate Division held that Supreme Court was correct in denying the plaintiff's motion for summary judgment. The court held that no action lies where a [*4]rent-controlled tenant charges a roommate a disproportionate share of the rent. However, since there was a factual issue as to whether the relationship between the plaintiff and the defendant was that of roommate or of tenant and subtenant, a trial was required.

In the instant case, Petitioner next argues that Respondent is in violation of RPL §235-f by having more than one roommate who is not a family member. In Capital Holding Co. v Stravrolakes (242 AD2d 240 [1st Dept 1997], affd 92 NY2d 1009 [1998]), the landlord commenced a summary proceeding against a rent-controlled tenant for

violating RPL §235-f by having more than one occupant, who was not a family member, residing in the apartment. The landlord claimed that the tenant had two roommates. The court held that RPL §235-f did not create an affirmative right of action for landlords to enforce occupancy limitations. The language of the statute is permissive rather than restrictive. The court further held that in the absence of a contrary lease provision, there was no statutory limit of the number of occupants contained in RPL §235-f. This section was created as a shield not as a sword. The landlord's petition was dismissed.

The case cited by Petitioner, Roxborough Apartments Corp. v Becker (187 Misc 2d 604 [App Term, 1st Dept 2000], affd 296 AD2d 358 [1st Dept 2002]), does not lead to a different result. In that case, the lease limited occupancy in accordance with RPL §235-f. The Appellate Term referred to the Capital Holding case and pointed out that the Capital Holding case involved a rent-controlled tenant without a lease so that a cause of action could not be predicated solely on RPL §235-f. In the case before it, the Appellate Term pointed out that the proceeding was premised on a breach of the lease provisions pertaining to occupancy. (Emphasis added) As long as the lease occupancy clause did not restrict the occupancy rights granted under RPL §235-f, the landlord could maintain a proceeding based on a violation of the occupancy agreement contained in the lease.

In this case, Respondent is a rent-controlled tenant without a lease and, accordingly, Petitioner is barred from commencing a holdover proceeding premised on a

violation of RPL §235-f.

Petitioner argues that the Housing Maintenance Code §27-2078(b) and Multiple Dwelling Law §31(6) (a) limits apartment occupancy. Therefore, Respondent may not exceed the limit. Otherwise, he is overcrowding the subject premises. The notice of termination served herein does not allege overcrowding pursuant to the Housing Maintenance Code or the Multiple Dwelling Law. Assuming that Petitioner pled these statutes as a ground for termination, a landlord may not maintain a proceeding for overcrowding under MDL §31(6) (a) unless an overcrowding violation has been placed against the building by reason of the tenant's occupancy (210 West 94 LLC v Concepcion, NYLJ, Mar. 5, 2003, at 19, col 1, 2003 NY Slip Op 50612 [U] [App Term, 1st Dept]). Petitioner has failed to show any proof that a violation was issued for overcrowding against the subject premises.

Based on all of the above, Respondent's motion for an order granting him summary judgment and dismissing the petition is granted. [*5]

Petitioner's cross-motion is denied as moot.

Respondent's motion for attorneys' fees and costs pursuant to 22 NYCRR §130-1.1, based on a claim that Petitioner commenced a frivolous proceeding, is denied. Dismissal of two prior nuisance holdover proceedings does not by itself show frivolous conduct. Petitioner made a reasonable showing of facts that when view in the light most

favorable to Petitioner would provide sufficient bases for the commencement of this proceeding.

This constitutes the decision and order of the Court.

Dated: New York, New York _________________________________

February 22, 2006 J. H. C.

Copies mailed to both sides:

cc: Law Dept Footnotes

Footnote 1: While Petitioner's attorney cites the lower court case, and Respondent's attorney cites the Appellate Term case, neither attorney connects the two cases. This is not a criticism of the attorneys. Both Westlaw and Lexis-Nexis have both of these unreported cases in their databases, yet neither connects the two cases. This oversight apparently stems from the fact that the Petitioner's name was changed in the Appellate Term case. However, a reading of both cases indicates that the Appellate Term decision modified the lower court decision.