Flatbush Patio LLC v Gause

[*1] Flatbush Patio LLC v Gause 2006 NY Slip Op 52415(U) [14 Misc 3d 1205(A)] Decided on December 18, 2006 Civil Court Of The City Of New York, Kings County Heymann, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 16, 2007; it will not be published in the printed Official Reports.

Decided on December 18, 2006
Civil Court of the City of New York, Kings County

Flatbush Patio LLC, Petitioner, against Debra Gause & Terry Williams, Respondent.



93610/06

George M. Heymann, J.

On the eve of trial of this nonpayment proceeding, the respondents moved this Court for an order dismissing said proceeding for lack of subject matter jurisdiction, or in the alternative, granting leave to conduct discovery.

FACTUAL BACKGROUND

The petitioner commenced this matter on September 25, 2006. The respondents interposed an answer on or about October 10, 2006. The first court date was October 18, 2006 and the case was adjourned to November 9, 2006 and on that date it was further adjourned to December 13, 2006 for traverse and trial. At approximately 8 P.M. on December 12, 2006, respondents' attorney faxed the instant motion to petitioner's attorney.

The petitioner opposes the motion as being nothing more than a dilatory tactic and an attempt by the respondents to avoid their responsibility for the debt they allegedly incurred to the petitioner prior to "vacating" the subject premises located at 590 Flatbush Avenue, Brooklyn, New York 11225. The petitioner alleges that there is rent due from June 2006 through October 2006. The respondents contend that they vacated the premises in June 2006 and therefore are not liable for any of the arrears sought. Moreover, the respondents argue that this Court has no subject matter jurisdiction to entertain this proceeding as a result of their vacating prior to the commencement of this case.

QUESTION PRESENTED

The issue before the Court is whether the respondents surrendered possession of the subject premises prior to the commencement of this proceeding which would deprive this Court of subject matter jurisdiction warranting dismissal.[FN1]

DISCUSSION AND CONCLUSIONS OF LAW

The respondents' motion for dismissal is, in effect, a motion for summary judgment, which can only be granted if, upon review of the entire record before the Court, it is determined [*2]that there are no factual issues that require resolution after a hearing or trial.

In the case at bar, the respondents rely on this Court's recently published decision, Torres v. Torres, NYLJ, 11/2/06, p.24, col.1, ______ Misc 3d ______, wherein this Court held:

It is a basic premise of landlord- tenant summary proceedings, whether non-payment or holdovers, that the person against whom the action is brought be in physical possession of the subject premises at the time the action is commenced in order for the Court to obtain jurisdiction. This doctrine was enunciated by the Appellate Division, First Department, almost a century ago in Warrin v. Haverty, 149 App. Div. 564, 133 NYS 959, 962 (1912) wherein the court held: It is essential to the jurisdiction of the court to entertain a summary proceeding, and to make a final order therein, that the tenant should be in possession.' (See, Sarafain v. Wool Bros. Corp., 75 Misc 2d 355, 347 NYS2d 793 [Civ Ct, 1973])

Once that jurisdiction has attached the action is not defeated simply because the respondent- tenant / occupant voluntarily vacated the premises prior to a formal resolution or disposition of the matter.

The respondents maintain that they vacated the subject premises on June 24, 2006, three months prior to the commencement of this proceeding on September 25, 2006. If, in fact, this is true, then the Court's reasoning in Torres, supra, is foursquare with the respondents' assertion. However, the petitioner argues that no surrender was effectuated, thus, negating the respondents' posture in that regard.

In support of its position, the respondents annex as exhibits to their motion the following:

- Respondents' lease to their new apartment (Ex. D)

- Copy of payments to new landlord (Ex. E)

- Copy of credit card statement showing U-Haul charge (Ex. F)

- Con Edison notice showing transfer of service (Ex. G)

Notwithstanding that these exhibits clearly demonstrate that the respondents have relocated to a new premises in or about June 2006, bringing these documents to the petitioner's attention for the first time, at this juncture, by way of this motion, does not establish the key element (no pun intended) in determining this entire case: when did the petitioner acknowledge surrender of the subject premises.[FN2]

The respondents aver that they returned all their keys for the subject premises to a member of the security staff upon completion of moving all their possession; that the security staff assisted them by reserving an elevator for them; and that when they initially moved into said apartment they acquired the keys from the security booth. While all of these factors weigh heavily in the respondents' favor, the two things that would have made their motion a "slam-dunk" would have been to obtain a receipt for the surrender of the keys and/or the name(s) of the security personnel to whom the keys were given. Respondents concede that they did neither.

The respondents cite Bunny Realty v. Latici, 18 HCR 620, for the proposition that [*3]surrender may be effected by giving keys to an agent of the landlord and leaving the premises. The respondents further state that since they received their keys from the security booth upon moving in, "they believed returning the keys to the security booth would be acceptable." (Emphasis added)

In Bunny, supra, the respondent moved out and left the keys with the superintendent. In that case, the landlord was aware that the keys were so tendered and did nothing to contradict or question those actions. There, the court held that the respondent's "surrender was accepted by inaction on the part of [the landlord] and action by one with at least apparent authority."

In contrast to Bunny, supra, where the court's finding was made after a hearing, the petitioner here vociferously disputes the surrender and has not accepted it "both passively and actively" as did the landlord in Bunny, supra.

The respondents further assert that the dispute over the keys is not determinative, as it is the physical possession that is necessary to sustain jurisdiction. Once again, the respondents are not incorrect in their argument, but for the fact that there is no concession by the petitioner that the respondents were no longer in possession during the months alleged in the petition.

Although the respondents refer to the decision in First National City Bank v. Wall Street Leasing Corp., 80 Misc 2d 707, which is directly on point, there, too, the court ruled in favor of the respondents only after a hearing on the issue. As stated therein:

It is clear ... that the determination of whether the tenant is in possession or not is a factual determination. Since it is a factual determination ... [there is nothing] which indicates that the parties must necessarily agree on what the factors are. Determining the facts is for the court.

Unlike the facts in 1290 Associates v. The Lakewood Group, Ltd, 20 HCR 45 (A), where the tenants wrote to the landlord that they were vacating several days prior to doing so, the respondents here provide no such proof of prior notification to the landlord.[FN3]

Although the respondents have submitted a copy of a new lease with a new landlord commencing on June 1, 2006 (Ex. D), there is no proof that same was provided to the petitioner, nor did respondents submit a copy of their prior lease with the petitioner for examination by the Court.. Therefore, this Court is unable to ascertain, on the papers alone, whether the respondents were terminating a lease that was in effect at the time of their departure and that they gave prior notification to the petitioner in that regard, or whether, if the lease was expiring, that they properly informed the petitioner that they would not be renewing their rent stabilized lease.

While providing such notification does not, in and of itself, prove surrender, it is a factor to be considered in assessing the petitioner's knowledge and awareness that the respondents were intending to leave the subject premises by a date certain.

Based on the affidavit of one of petitioner's managers, that no keys were received from the respondent and no written confirmation of their surrender was received, the issue cannot be resolved without a factual hearing.

Regarding the second branch of the motion for discovery, the Court strikes the Notice to [*4]Produce in its entirety. As to the Interrogatories, the Court strikes questions 1, 2, 3, 4, & 5, and directs the petitioner to answer questions 6 & 7 regarding whether anyone other than the respondents is/are currently occupying the subject premises, and the total amount claimed due from the respondents to date, within 30 days.

The Court finds that the respondents could have simply requested a receipt from the security agent to whom they surrendered the keys and inquire as to his name if it was not on said receipt. To now require the petitioner to supply the respondents with the names of any agents, employees and /or security personnel employed in June 2006, and those who were working on June 24, 2006; the location of all surveillance cameras; the procedures for reserving an elevator; and the work schedule and pictures of the security personnel working during the week of June 18 - 24, 2006, is, in this Court's opinion, nothing more than a major fishing expedition to compensate for the respondents' failure to, metaphorically speaking, "dot their i's' and cross their t's'" at the time they allege they surrendered possession. The reasons given for this apparent oversight, are that "We feared for our safety and we wanted to leave immediately. We had recently filed several reports of drug activity in the building with the 71st Precinct; we feared retaliation. There had also been several robberies in the building. Unfortunately, we cannot remember the name of the security guard to whom we gave our keys." (Respondents' Affidavit, Paragraphs 7 & 8)

Although it will be up to the trial court to evaluate the credibility of the witnesses testifying under oath, in deciding whether to grant summary judgment on the papers submitted, the Court finds this reasoning implausible. For whatever amount of time it took the respondents to remove all their possessions from their apartment, take them down an elevator, unload them and then reload them into a U-Hall van, to then state to this Court that they were afraid to take an extra moment to ask security for a receipt (especially since being in the presence of security would have been the safest place to be) is disingenuous at best.

Accordingly, the first branch of the motion to dismiss is denied in its entirety and the second branch of the motion for discovery is denied except as to Interrogatories 6 & 7, as noted above.

This matter is calendared for January 23, 2007 at which time it will be referred to the Expediter for traverse and trial.

This constitutes the decision and order of the Court.

Dated: December 18, 2006_________________________________

GEORGE M. HEYMANN, J.H.C. Footnotes

Footnote 1: A dismissal of this case for lack of subject matter jurisdiction would not necessarily deprive the landlord from seeking damages in a plenary action if, for example, the respondents defaulted under the terms of their lease agreement. However, this is not an issue before the Court and therefore need not be addressed in this forum.

Footnote 2: There is nothing in any of the affidavits submitted by either side that addresses whether or not the petitioner has an established procedure for the surrender of premises upon vacatur and whether the respondent was aware of them (i.e.: surrender of keys to either the superintendent or security personnel as agents for the management, or directly to the management office itself.)

Footnote 3: It was not until December 5, 2006 that the respondents, through their attorney, sent a letter to petitioner to confirm their surrender of the subject premises and to "encourage the petitioner to re-let the apartment..." (Ex. H)