Barrington Travel Group, Inc. v Nivens

[*1] Barrington Travel Group, Inc. v Nivens 2006 NY Slip Op 52556(U) [14 Misc 3d 1224(A)] Decided on February 14, 2006 Civil Court Of The City Of New York, New York County Schreiber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2006
Civil Court of the City of New York, New York County

The Barrington Travel Group, Inc., Petitioner,

against

Sharon Nivens, Respondents-Tenant "John and/or "Jane Doe" Respondents-Under-Tenants



056449/05



Silberman & Silberman, P.C.

Lawrence Silberman, Esq.

146 East 37th Street

New York, NY 10016

(212) 679-0968

The Legal Aid Society

Manhattan Housing Court Project

Douglass J. Seidman, Esq.

111 Centre Street, Room 106

New York, NY 10013

(212) 766-2450

Michelle D. Schreiber, J.

Petitioner commenced the instant holdover proceeding against the respondent on February 9, 2005. Although the original petition alleged that the subject apartment was subject to the Rent Stabilization Law ("RSL") of 1969, the petition was amended to state that it was not subject to the RSL as the building contains less than six residential units. The matter initially appeared on the calendar on February 28, 2005. After numerous adjournments, both sides now move for summary judgment.[FN1]

The respondent asserts that although the certificate of occupancy states that the building contains five residential units and a commercial space, there are actually six residential units in the building. The respondent seeks summary judgment dismissing the petition based upon her claim that since there are six residential units in the building she is entitled to the protections of the RSL.

In support of her motion the respondent submits a certified copy of the Department of Buildings plans and a copy of the certificate of occupancy for the subject building. The documents indicate that the first floor of the building is a store (bar and grill), the second floor has one apartment and a dentist office, and the third and fourth floors have two apartments each. [*2]The respondent also submits certified copies of deeds for the property. Frank and Jennie Giglio purchased the building in1942. The Giglios continued to own the property until 1990 when it was conveyed to Frederica Gayde and Rosalie Henley, the executrixes of Jennie Giglio's will; they owned the building until 2003 and then sold it to 361 First Avenue LLC. In 2004, 361 First Avenue LLC sold the property to petitioner herein. Also annexed to the motion is a copy of a net lease dated August 1, 1995 and expiring on July 31, 2006, between Rosalie Henley and Frederica Gayde as landlords and Four Friends Realty as the tenant; the lease was assigned to 361 Pub on First Avenue Inc. in 1998. The net lease states that the building has one store, one commercial unit, and five residential units.

In further support of her motion the respondent submits affidavits from Caren Shapiro and Anja Schlein, former residents of the building; an affidavit from Barbara Augerot, a current resident; a copy of the Notice of Value 2005-2006 from the New York City Department of Finance showing the building has six residential units and one commercial space; and a notice to the respondent from the New York State Division of Housing and Community Renewal ("DHCR") regarding the denial of the owner's application for a major capital improvement increase based upon the failure to timely file the application.

The respondent states that when she moved into the building in 1979 Freddy Giordano, the long term owner of the bar on the ground floor, was leasing the building; he sold his interest to Four Friends Realty in 1984. The respondent states that throughout her twenty-six year residency in the building there have been six residential units. She states that the unit marked on the floor plans as the "dentist office" is actually denominated apartment 2, and was always used as the sixth apartment.

The respondent lived in apartment 2 with her father from 1979 until after his death in 1986. In 1987 she and her daughter moved from apartment 2 to apartment 3 due to electrical problems in apartment 2; she has lived in apartment 3 ever since. The respondent states that during the twenty-six years she has lived in the building she has had only two leases: a rent stabilized lease for apartment 2 which she does not have a copy of, and a two year lease from 1990 for apartment 3 signed by John Powers on behalf of Four Friends Realty, a copy of which she annexes.

The respondent states that when she moved into the building she paid rent at the bar either by personal check or in cash. She continued to pay in this manner after moving to apartment 3, and did so until the new owner took over in 2004. She states that throughout her tenancy at the building the apartments on the second, third and fourth floors in the back of the building have been numbered 1,3 and 5, and those in the front of the building are numbered 2,4, and 6. The respondent details the names and dates of occupancy of a number of tenants in the building; copies of mail sent to some of the tenants are annexed to the motion. The respondent also submits copies of photographs of apartment 1 which she says is currently being renovated to be utilized for storage; the photographs show a full bathroom and a kitchen. With respect to the occupancy of apartment 1 the respondent states that a number of different tenants have resided there including Caren Shapiro and Anja Schlein.

Ms. Shapiro states that she lived in apartment 1 from 1995 until about 1998. She states that she paid rent of approximately $650 per month to her "landlord, Dennis in the bar downstairs." She states that while she was living in the building Barbara Augerot lived in apartment 2 which was across the hall. Ms. Shapiro also states that she worked at the bar in the [*3]building both before and during her residence in apartment 1.

Ms. Schlein's affidavit states that she resided in apartment 1 from approximately September 1998 to April 1999. She paid between $600 and $800 per month to her landlord "Tommy or Robbie in the bar downstairs." She states further that during her occupancy of the apartment her neighbor across the hall was Barbara Augerot.

Barbara Augerot also submitted an affidavit in support of the motion. She states that she has resided in apartment 2 of the subject building for more than seventeen years. She signed a two year lease in 1988 which included a statement of her rights as a tenant in a rent stabilized building; a copy of her lease is attached. Ms. Augerot states that she worked at the bar downstairs for four years prior to moving into the building and for twelve years after moving in. She states that she recalls the respondent and other tenants in the building coming to the bar to pay their rent. Ms. Augerot states that she has lived in apartment 2 continuously and paid rent until December 2004 when the building came under new ownership. She states that at that time the owner left a notice on her door directing her to leave by the end of the month, but no further legal action was taken. The new owner has not sought rent from her, but she has deposited her rent into an account since that time. Finally, Ms. Augerot states that she has heard that her apartment is designated as a dental office or beauty parlor, but that it is identical to the other units in the building with the exception of extra electrical outlets.

Petitioner submits an affidavit in opposition to respondent's motion from one of its officers, Gerald Lieblich. Mr. Lieblich admits that petitioner has been the owner of the building since February 2004, and that it was previously net leased by the former owners to Four Friends Realty. He states that the certificate of occupancy identifies the building as having five residential units, a dentist office and a restaurant/bar, and that neither the former owner nor the net lessee registered any of the units in the building with DHCR. He states that the current owner filed a multiple dwelling registration for the building with the Department of Housing Preservation and Development ("HPD").

Mr. Lieblich makes numerous claims regarding the conduct of the former owners and net lessees, however, since he does not claim to have personal knowledge of these facts the statements are merely hearsay and not probative of issues herein. To the extent that Mr. Lieblich asserts that the former absentee owners or net lessees were unaware of the use of the "dentist office" for residential purposes, as noted, the hearsay statements may not be considered in opposing the motion for summary judgment. Mr. Lieblich speculates that the former net lessee permitted employees of the bar to use various units in the building for temporary housing or as a "crash pad."

Mr. Lieblich does not dispute that the dentist office at the subject building was used for residential purposes. Instead, he claims that the residential use of the unit was not consented to by the previous owner and was an unauthorized act of the net lessee. This claim, too, is not based on personal knowledge and must be rejected as insufficient to raise a question of fact. Moreover, an owner's "lack of knowledge does not give rise to an exemption from rent stabilization." Rashid v Cancel, 9 Misc 3d 130A, (AT 2nd Dep't 2005). The Rent Stabilization Code §2520.6(I) defines owner as fee owner, lessor, sublessor, assignee, net lessee or proprietary lessee of a housing accommodation. Additionally, RPAPL § 721(10) defines a lessee of premises as a person who may maintain a proceeding, and the definition of owner in Multiple Dwelling Law § 4(44) includes a lessee. Accordingly, whether the acts of the net lessee in [*4]renting six residential units were known to the former owner or not, the acts of the net lessee are imputed to the owner.

Summary judgment is appropriate when the movant establishes the claim by tender of evidentiary proof in admissible form sufficient to warrant the court as a matter of law to direct judgment in its favor. Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hospital, 68 NY2d 320 (1986). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v Prospect Hospital, 68 NY2d at 324. In determining the motion, a court must be mindful that summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). The evidence must be considered in the light most favorable to the party opposing the motion, Henderson v City of NY, 178 AD2d 129, 130 (1st Dep't 1991), and the motion must be denied where conflicting inferences may be drawn from the evidence. Nowacki v Metropolitan Life Ins. Co., 242 AD2d 265, 266 (2nd Dep't 1997).

As a result of the Emergency Tenant Protection Act, the Rent Stabilization Law applies to privately owned housing accommodations built before 1974 and containing six or more residential units. See e.g., Rent Stabilization Law of 1969, Administrative Code of the City of NY § 26-504; Emergency Tenant Protection Act of 1974, McKinney's Uncons. Laws of NY § 8621 et seq.; Wilson v One Ten Duane St. Realty Co., 123 AD.2d 198 (1st Dep't 1987). Here, there is no dispute that the building was built before 1974. While the certificate of occupancy describes the building as a five unit residential building, the affidavits of the respondent, Ms. Shapiro, Ms. Schlein, and Ms. Augerot establish that the "dentist office" was utilized for residential purposes for more than twenty-five years thereby creating a sixth residential unit and bringing the entire building under rent stabilization. See e.g., Gracecor Realty Co. v Hargrove, 90 NY2d 350 (1997); Rosenberg v Gettes, 187 Misc 2d 790 (AT 1st Dep't 2000); K.C. Rashid v Cancel, 9 Misc 3d 130A, (AT 2nd Dep't 2005). In order to terminate the respondent's tenancy petitioner had to plead and prove a cause of action allowing termination pursuant to the Rent Stabilization Code; it failed to do so. Therefore, respondent's motion for summary judgment is granted and the petition is dismissed. The petitioner's motion for summary judgment is denied as moot.

This constitutes the decision and order of the court, copies of which are being mailed by the Court to the attorneys below.

Dated:New York, New York

February 14, 2006

__________________________

_________________________

Michelle D. Schreiber, J.H.C. Footnotes

Footnote 1: Since both sides are moving for summary judgment, it is assumed that an answer was served although it was apparently not filed with the Court. The Court notes that neither party annexed copies of the pleadings to the papers submitted in support of the motions. See, CPLR § 3212(b).