Brianic Intl. Realty Corp. v Pitt

[*1] Brianic Intl. Realty Corp. v Pitt 2009 NY Slip Op 52430(U) [25 Misc 3d 1236(A)] Decided on December 3, 2009 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 11, 2009; it will not be published in the printed Official Reports.

Decided on December 3, 2009
Civil Court of the City of New York, New York County

Brianic International Realty Corp., Petitioner,

against

Phillip Pitt, Respondent.



75547/2007



Rosenberg Calica & Birney, LLP, New York City (Ronald J. Rosenberg of counsel), for petitioner.

West Side SRO Law Project, New York City (Shafaq Islam of counsel), for respondent.

Gerald Lebovits, J.

Petitioner moves for leave to reargue and/or renew this court's June 9, 2009, decision and order, which denied petitioner's cross-motion for summary judgment and granted respondent's motion for summary judgment. (See Brianic Intl. Realty v Pitt, 24 Misc 3d 940, NYLJ, June 17, 2009, at 26, col 1 [Civ Ct, NY County 2009].) Petitioner argues that upon reargue and/or renewal, its motion for summary judgment should be granted and that this court should award it a final judgment of possession, a warrant of eviction, and use and occupancy. As to reargument, respondent argues that this court overlooked no matter of law, that this court misapprehended no facts, and that petitioner simply repeated old arguments. As to renewal, respondent argues that the new evidence petitioner seeks to introduce has no bearing on the current motion.

Petitioner's motion for leave to reargue and/or renew is denied.

Under a written agreement with petitioner, the New York City Department of Human Resources Administration (HRA) placed respondent in Room 214 of petitioner's Single Room Occupancy (SRO) hotel, which is located at 216 West 103rd Street in New York County. For the purpose of this decision, the court accepts that this written agreement existed, even though neither party has produced it. According to that agreement, HRA promised to pay petitioner $2000 a month on respondent's behalf. Petitioner claims that it is in privity with HRA only and that this agreement made respondent a month-to-month subtenant of HRA.

Petitioner further alleges that a letter from HRA dated April 17, 2007 — a letter neither side produced but which for the purpose of this motion the court accepts as true — told [*2]respondent that was no longer allowed to live at the premises, that HRA would no longer pay respondent's rent, and that all the HRA-subsidized tenants in the SRO, including respondent, would be relocated.

Respondent held over, and petitioner brought this holdover proceeding. Respondent then moved for summary judgment. According to respondent, he was a permanent rent-stabilized tenant under Rent Stabilization Code § 2520.6 (j), protected from eviction except for specific Code-specified circumstances that petitioner did not allege. The court ruled in respondent's favor and dismissed the petition.

A motion to reargue under CPLR 2221 may be granted if, in deciding a prior motion, the court overlooked or misapprehended fact or law or made a mistake as a matter of law. (Schneider v Solowey, 141 AD2d 813, 813 [2d Dept 1988].) A motion to reargue is not a tool to give litigants an additional attempt to argue issues previously decided. (Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971, 971 [1st Dept 1984].) A motion to renew under CPLR 2221 is viable when a party wants to introduce to the court new or additional facts that existed when the first motion was brought but were unknown to the moving party and therefore not introduced earlier. (Beiny v Wynward, 132 AD2d 190, 210 [1st Dept 1987].)

Petitioner argues that the court misapplied and misapprehended the Rent Stabilization Code's definition of permanent tenant when it defined a permanent tenant for hotel-housing purposes as an individual who continuously resides in the same building as a principal residence for at least six months. Petitioner also argues that the definition of permanent tenant must be read alongside the definition of tenant and that both a tenant and a permanent tenant of a hotel must pay rent or use and occupancy. If both a tenant and permanent tenant must pay rent, petitioner claims, respondent would have been responsible for paying and that, if he did not, a holdover or nonpayment proceeding could be brought against him. In addition, petitioner claims that this court found incorrectly that there was no landlord-tenant relationship between petitioner and respondent and that because respondent never paid rent, he cannot be considered a tenant as defined by the Rent Stabilization Code.

Additionally, petitioner argues that the court should grant renewal based on facts not introduced on the prior motion. On June 30, 2008, the New York State Division of Human Rights issued a Determination and Order in which it held that all residents within the petitioner's single-room-occupancy hotel no longer had a legal right to tenancy under petitioner's agreement with New York City. Petitioner claims that this ruling is binding on this court and that this court is collaterally estopped from ruling inconsistently. Petitioner contends that it failed to introduce this decision on prior motion because the counsel who previously represented the petitioner did not make them aware that it was pending. Petitioner also argues that respondent knew of the ruling and declined to make the court or petitioner aware of it.

Petitioner contends that to be considered a permanent tenant, a tenant must have an obligation to pay rent to a landlord. Petitioner claims that a permanent tenant's obligation to pay [*3]rent is illustrated in Kanti-Savita Realty Corp. v Santiago (18 Misc 3d 74 [App Term 2d Dept, 2d & 11th Jud Dists, Dec. 13, 2007].) But the Appellate Term rejected that argument. In classifying someone as a permanent tenant, according to the Appellate Term,"the Code's criterion is not the payment of rent but continuous residence in the unit for six months." (Id. at 76.)

Although many permanent tenants pay rent, doing so is not a factor in classifying someone as a permanent tenant. In Fried v Gates (20 Misc 3d 1126 [A], 2008 NY Slip Op 51631 [U], *1 [Civ Ct, Kings County 2008]), the court acknowledged that the respondents paid rent. In determining that they were permanent tenants, however, the only factor the trial court considered was that they lived at the premises for eight years. In 143 East 30th Street Corp. v Shankman (10 Misc 3d 126 [A], 2005 NY Slip Op 51883 [U], *1 [App Term 1st Dept, Nov. 21, 2005]), similarly, the court determined that the tenant qualified as a permanent tenant based on his "continuous occupancy of the building premises as a primary residence for a period exceeding the six-month statutory threshold." In Johnson v Crandell (19 Misc 3d 1136 [A], 2008 NY Slip Op 51030 [U], *1-2 [Civ Ct, NY County, Apr. 7, 2008]), the court also classified a tenant as a permanent tenant based solely on the fact that the tenant had resided in the building for over six months. And in Smiley v Williams (886 NYS2d 587, 2009 NY Slip Op 29394 [Civ Ct, NY County, Oct. 5, 2009]), a case also involving a holdover proceeding at an SRO, Civil Court, citing this court's June 2009 opinion in Brianic Intl. Realty v Pitt, wrote that "[t]he fact that Petitioner denies receiving any payment of rent or entering any formal agreement with Respondent, even if true, does not deprive Respondent of rights under the statute, the sole criteri[on] used under the statute is [the respondent's] residence for a six month period." (Id., 886 NYS2d at 590.)

Assuming, in any event, that paying rent is a requirement for tenancy or permanent SRO tenancy — and it is not — HRA paid rent for respondent. Nothing requires that occupants pay rent themselves. An uncle, a friend, Social Services — anyone may pay rent on a tenant's behalf.

Both sides agree that respondent lived in petitioner's hotel for more than the six-month period required to be classified as a permanent tenant: Respondent lived there for more than eight years.

Petitioner's argument for renewal is unpersuasive, even assuming both the truthfulness of petitioner's allegation that petitioner's former counsel did not tell petitioner about the Division of Human Rights' decision and that this supposed failure justifies a motion to renew. The Division's decision is not from a court of law and thus not binding on this court. In any event, its decision concerned discriminatory practices, not respondent's status as a permanent tenant. The additional facts that, perhaps, could have been introduced as a result of the Division of Human Rights' decision would not have affected this court's June 2009 decision.

Petitioner stated at oral argument that it would dismiss his holdover proceeding if petitioner would pay rent at $2000 a month, which this court assumes, but does not find, is the lawful rent-stabilized amount. But petitioner stated it could not bring a nonpayment proceeding [*4]because it could not, in good conscience, claim any landlord-tenant relationship with respondent. The court respectfully disagrees. Petitioner could, if it deemed it advisable to do so, attach to a nonpayment petition brought in Housing Court a copy of this court's June 2009 decision. Or petitioner, if it deemed so advisable, could bring an eviction action for nonpayment of rent in Supreme Court, where no landlord-tenant relationship need be established.

Petitioner's motion for leave to reargue and/or renew is denied.

Dated: December 3, 2009

J.H.C.