Joe Lebnan LLC v Oliva
Annotate this CaseDecided on August 25, 2009
Civil Court of the City of New York, Kings County
Joe Lebnan LLC, Petitioner,
against
Arias Oliva, Respondent, "JOHN DOE" and "JANE DOE," Respondents-undertenants.
62440/2009
Petitioner's Attorneys:
Gutman, Mintz,
Baker & Sonnenfeldt, P.C
813 Jericho Turnpike
New Hyde Park, New York 11040
(516) 775-7007
Respondent's Attorneys:
Brooklyn Legal Services Corporation A
Attn: Vance Gathing, Esq.
1455 Myrtle Avenue
Brooklyn, New York 11237
(718) 487-0800
Laurie L. Lau, J.
Petitioner commenced this holdover summary proceeding against
respondent Arias Oliva ("Oliva"), the tenant of Apartment 3R (the "Apartment") in the building
located at [*2]237 Jefferson Street, in Brooklyn (the "Building"),
after the expiration of a Thirty Day Notice to Terminate, dated January 27, 2009 (the
"Termination Notice"), and expiring on February 28, 2009, purporting to terminate Oliva's
month-to-month tenancy of the Apartment. The initial return date of the proceeding was March
26, 2009, at which time it was adjourned to April 30, 2009. Respondent interposed a written
answer dated April 29, 2009, setting forth ten affirmative defenses and four counterclaims,
which was accepted upon condition that all affirmative defenses except a defense asserting
retaliatory eviction and a defense asserting that the Apartment was subject to the Rent
Stabilization Law and Code because it contained more than six apartments were withdrawn. The
proceeding was adjourned to May 22, 2009 for trial.
A trial was held[FN1], and after a review of the testimony and
evidence, the court reaches findings of fact and conclusions of law as set forth below.
Petitioner called Mendel Farkas as its only witness on its prima facie case. Farkas
testified that he had been the manager of the Building since its acquisition by petitioner, by deed
dated October 6, 2008, offered and accepted into evidence. Farkas also produced, and the court
accepted into evidence, a Certificate of Occupancy for the Building, dated June 25, 1951,
indicating that the Building comprised three floors and a cellar, with the permissible uses being
two apartments on the third floor, two apartments on the second floor, a dentist's office in
conjunction with one family on the first floor, and ordinary storage in the cellar. Farkas also
produced and the court admitted as a evidence a Multiple Dwelling Registration documents for
the Building, indicating that the Building was registered as a multiple dwelling and that the
Department of Housing Preservation and Development ("HPD") listed the Building as containing
five class A units.
Farkas also produced documentation from the New York State Division of Housing
and Community Renewal ("DHCR") indicating that it had no record of any filings for the
Building. Farkas also produced a rent history for the Apartment, which set forth a monthly rent
of $1000. Farkas confirmed that rent had not been accepted after the expiration of the
Termination Notice.
Farkas confirmed during cross-examination that the Certificate of Occupancy listed
five apartments, and described the first floor of the Building as containing an office on the left
and an apartment on the right, noted that each had a bathroom, and testified that only back area,
referred to as the Apartment, contained a kitchen. He confirmed that the first floor and that there
were 2 apartments on the second floor and two on the third floor, and that nobody occupied the
basement. At the close of his testimony, petitioner rested.
Eight witnesses testified on respondent's behalf: Respondent, Araceli Cedillo
("Cedillo"), his wife; Miguel Navla ("Navla"), the tenant of Apartment 2R in the Building;
Jessica Vaquero ("Vaquero"), another occupant of Apartment 2R; Rafael San Pedro Medina
("Medina"), a former tenant of the Building; Francisca Liriano ("Liriano"), another former tenant
[*3]of the Building; Joe Pacheco, a paralegal at Brooklyn Legal
Services; and Mendel Farkas.
Liriano was the first to testify, and stated that she had lived apartment 1A, on the
first floor of the building, facing the street in front of the Building, for part of 2006, before
moving to an apartment in the basement of the Building. Liriano presented, and the court
accepted into evidence, numerous copies of receipts, some of which she asserted were receipts
for rent paid for the first floor apartment and others which she asserted were rent receipts for the
basement apartment. The court also admitted into evidence Liriano's lease for apartment 1A in
the Building, commencing on February 1, 2006, and expiring on January 31, 2007, and reserving
a monthly rent of $900. Liriano then presented, and the court admitted, a Verizon bill dated
March 5, 2008, for phone service to the first floor apartment at the Building.
Liriano asserted that the basement apartment was in bad condition, and that there
waw a bad odor in the apartment, which included a kitchen, living room, bathroom and an
additional small room, and said that hers was one of two similar apartments in the basement. She
stated that she moved from the first floor to the basement apartment because the rent was lower
and she could not afford the rent for the first floor apartment. She learned of its availability from
a friend who had lived there, and confirmed that it was one of eight apartments in the Building.
During cross-examination, Liriano reasserted that all the receipts she had stated were
for Apartment 1F were for that apartment's rent, and that all receipts that she had stated were for
the basement apartment were for the basement apartment. Liriano also stated that she moved out
of the Building in November 2008. When asked about a March 2008 telephone bill listing her
address as the first floor apartment, Liriano stated that she maintained the same telephone in both
apartments. Liriano further clarified that when she found the first floor apartment unaffordable
she fell behind in her rent payments, and that the receipts she presented represent moneys she
had available when her landlord appeared seeking rent.
Medina testified briefly, later in the trial. He stated that he had occupied the first
floor front apartment in July 2007 and moved out in February 2008, and testified as to the layout
of the apartment. Medina was unaware of the basement apartments, but saw people coming and
going. Medina acknowledged that he did not have a lease or receipts for rent payments for the
apartment. He stated that he came to court at the request of occupants of the Building and
testified voluntarily.
Navla testified that he was the tenant of Apartment 2R, having moved in during July
or August 2005. Asked about the number and placement of apartments in the Building, Navla
testified that the building had two apartments on each of its four floors, including the basement
level. The basement, he said, had been occupied until a fire occurred at the Building in January
2009. After describing broken appliances and a lack of repairs made in his own apartment, Navla
testified that he, his stepson and his wife had filmed the interior of the Building and its various
apartments using a digital camera, on January 9, 2009, five days after the fire took place; Navla
asserted that all the apartments in the Building were open at the time. Navla acknowledged that
he was also a party to a holdover proceeding and not a disinterested witness, but also stated that
he had seen the basement apartments prior to January 2009, as he had been in the basement
whenever there were electrical problems in his apartment, which gave him the [*4]opportunity to see through the open doors of the apartments.
Vaquero testified that she had lived in 2R at the Building for four years, and that the
first, second and third floors of the Building each had two apartments during the entire time she
had lived in the Building. She further testified that there were conditions in need of repair in her
apartment in December 2008, but that no repairs had been made. January 9, 2009, Vaquero
testified, was the only day on which she saw the apartments in the basement of the Building,
while she was taking part in the videotaping of the interior of the Building. She described the
basement as containing water, garbage and rats. She said that she attempted contacting the
landlord, who did nothing, and ultimately called 311, which led to people coming to the
Building. There was an HP proceeding filed, and the court took judicial notice of the file in that
proceeding.
Oliva testified that he and his family moved into the Building in May 2004, and
described the Building as comprising two apartments on each floor. He first went to the
basement when he found that his bills from Con Edison only contained estimated readings for his
electrical usage. He found that someone he knew to be a friend of the landlord lived in one
apartment in the basement, and someone unknown to him lived in the other; Oliva saw both
apartments. He described one apartment as being to the left and the other as being to the right,
and said that he had only seen the outside of right apartment but had seen the interior of the left
apartment when checking the meter. He also knew that the landlord did not permit children to
live in the basement apartments.
Oliva testified that, during one week in January 2009, he received no hot water or
heat and had no electricity, and that those services were restored by the city after HPD came to
the Building. In February 2009, while an HP proceeding was pending, Oliva received the
Termination Notice. Oliva acknowledged that basement and first floor apartments had recently
been demolished and said that he saw the first floor front apartment only during the demolition,
when only the kitchen remained. He said that he had previously been in the first floor rear
apartment because friends lived there.
Oliva acknowledged that the only occupied apartments in the Building were the
Apartment and apartment 2R, but said that the first floor front apartment was occupied in May
2004, though he could not recall when it became empty. Oliva knew that Liriano had lived there
and that the Apartment had been occupied after Liriano moved, but did not have details as to the
subsequent occupant.
Oliva first met Farkas, who he referred to as "Mendy," in October 2008, when, he
said, Farkas attempted to raise the rent for the Apartment to $2000 per month. After Oliva
commenced an HP action, he testified, Farkas asked him to move, and offered him money in
exchange for his agreement to vacate the Apartment. Ultimately, they agreed to a rent of $1000
per month. The parties had several conversations regarding payment in exchange for Oliva's
agreement to vacate the Apartment.
Cedillo testified briefly, stating that she was the wife of Oliva and moved into the
Building in May 2004. She described each of the Building's four floors as containing two [*5]apartments, including the basement. She visited the basement,
when she became aware of a vacant apartment there, and took a friend to look at it. Her friend,
she stated, did not like the apartment or its condition, and did not rent it; she never saw the other
basement apartment. Cedillo described a period in January 2009 when there were no services in
the apartment, and said they were restored by the city; she had no information about any HP
proceeding. Cedillo also testified that in January 2009, the landlord demolished the apartments in
the basement and on the first floor.
Respondent called Farkas as a witness, and he testified that he managed 73
properties in New York City. He further testified that, in October 2008, he counted five
apartments at the Building. He testified that nothing had been done to create additional
apartments and there was not a first floor front apartment, or basement apartments at the
Building. Farkas acknowledged that in May 2009, there had been demolition work not only in
the basement, but elsewhere in the Building, and that prior to the fire, the Building had tenants
whose presence made such work unfeasible. The court accepted into evidence a Department of
Buildings violation record, for a violation issued on January 8, 2009, because of the existence of
a class "A" apartment in the cellar of the Building, and two notices of violation placed on March
30, 2009, one for the conversion of a dentist's office into a dwelling unit, and the other for work
without a permit to add water and waste lines for a bath, sink, and toilet, and a gas line for a
stove.
Respondent called Joe Pacheco, a paralegal employed at the offices of respondent's counsel,
to testify. On May 5, 2009, Pacheco stated, he was asked to visit the Building and take pictures,
and to try to ascertain the number of apartments in the Building. When he arrived at the
Building, he saw a garbage truck in front of the Building along with numerous workers, and he
believed that demolition was taking place; once in the Building, Pacheco found that the workers
were knocking down studs and walls both on an upper level and in the basement. The court then
accepted into evidence a series of 19 photographs taken by Pacheco depicting the interior of the
Building. The trial record closed at the conclusion of Pacheco's testimony.
The court finds that petitioner offered testimony and evidence sufficient to establish
the elements of its prima facie case; petitioner offered both the deed and respondent's lease with
its predecessor in interest, evidence of the Multiple Dwelling Registration, and proof of the
service of the Termination Notice. The elements of petitioner's prima facie case were not
seriously contested. Trial instead focused on respondent's affirmative defenses of retaliatory
eviction and the rent regulatory status of the Apartment.
The court will turn first to respondent's defense alleging retaliatory eviction. The
salient statute provides that:
1. No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for: [*6]
(a) A good faith complaint, by or in behalf of the tenant,
to a governmental authority of the landlord's alleged violation of any health or safety law,
regulation, code or ordinance, or any law or regulation which has as its objective the regulation
of premises used for dwelling purposes or which pertains to the offense of rent gouging in the
third, second or first degree ;
***
4. In any action to recover real property or summary proceeding to recover possession of real property, judgment shall be entered for the tenant if the court finds that the landlo9rd is acting in retaliation for any action set forth in paragraphs a, b, and c of subdivision one of this section and further finds that the landlord would not otherwise have commenced such action or proceeding. Retaliation shall be asserted as an affirmative defense in such action or proceeding. The tenant shall not be relieved of the obligation to pay any rent for which he is otherwise liable.
5. In an action or proceeding instituted against a tenant of premises or unit to which this section is applicable, a rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within six months after:
(a) A good faith complaint was made, by or in behalf of the tenant, to a governmental
authority of the landlord's violation of any health or safety law, regulation, code or ordinance, or
any law or regulation which has as its objective the regulation of premises used for dwelling
purposes or which pertains to the offense of rent gouging in the third, second or first degree.
(Real Property Law §223-b).
The Termination Notice is dated January 27, 2009, with the first attempt to serve it
made on that date, and the second attempt, as well as its mailing, occurring on January 28, 2009.
On January 5, 2009, HPD conducted an inspection at the Building resulting in numerous
violations being issued in the Apartment. On January 8, 2009, Cedillo, respondent's wife and an
occupant of the Apartment, filed an order to show cause and petition to commence an HP action.
On that same date, the Department of Buildings placed a violation because of the creation of a
class "A" apartment in the basement of the Building. The HP action commenced by Cedillo
resulted in the execution, on February 23, 2009 of a consent order requiring the correction of
class B and C violations.
Less than one month after respondent's wife, also residing in the Apartment,
commenced an HP action that ultimately resulted in a consent order for the correction of
violations, petitioner elected to serve the Termination Notice. The complaint upon which the HP
action was premised was plainly in good faith, in that it resulted in a consent order for the [*7]correction of violations in the Apartment. These facts are sufficient
to establish a presumption of retaliatory eviction that, unless rebutted by evidence, (Salvan v
127 Management Corp., 101 AD2d 721 [1st Dept 1984], app. dism., 63 NY2d 773
[1984]). The remaining question as to this defense, therefore, is whether petitioner has offered
evidence sufficient to rebut the presumption. To determine whether petitioner has done so, the
court must "determine if the landlord's decision to evict the tenant was reached independently of
the activities of his tenant protected by ordinance," (Cornell v. Dimmick, 73 Misc 2d 384
[Binghampton City Court 1973]).
Here, petitioner offered no testimonial evidence in rebuttal after the close of
respondent's defense case. To the extent that petitioner addressed the defense of retaliatory
eviction, it did so during the cross-examination of Oliva, and through the submission of an
affidavit of a member of the law firm representing petitioner, which the parties stipulated to
permit. The affidavit relates to email received from a representative of petitioner.
Oliva testified that in January 2009, he asked the landlord to make repairs, at a time
when there was no heat, hot water or electricity stopped coming to the apartment. He stated that
the landlord responded that it could do nothing, and that repairs were ultimately made by
workers from the City of New York. Oliva stated that he received the Termination notice in
February 2009, while the HP action was pending,
During cross-examination, Oliva denied that he was asked to move the first time he
met Farkas, and stated that he was asked to move when he brought the landlord to court. Oliva
acknowledged that in October 2008, Farkas asked him to pay a large rent increase to which he
would not agree. Oliva also denied asking for payment from the landlord when Farkas first asked
him to pay a rent increase, stating that Farkas instead offered to pay a deposit for him if he
vacated the Apartment, which he declined. Ultimately, Oliva said, they agreed to a rent of $1000
per month, representing an increase of $100 per month over the prior rent. That, Oliva said, was
their only conversation regarding a rent increase. Oliva paid the increased rent in October,
November and December 2008.
Oliva said that there were two more conversations regarding payment in exchange
for his agreement to vacate. The first, he said, took place during the first week of January 2009,
while there was no electricity, gas, or hot water. As Oliva discussed the conversation, however,
he clarified that it was not a conversation about payment in exchange for leaving the Apartment,
but was instead a conversation about the appropriate address for payment of arrears. Oliva then
said that, after he brought the landlord to court, there was a discussion of payment in exchange
for his agreement to vacate the Apartment, which he stated did not interest him. Finally, Oliva
emphasized that he brought the HP action in January 2009 after services were cut off in the
Apartment and the Building, and the court took judicial notice of files for HP actions
commenced by Cedillo and by Vaquero in January 2009.
The affidavit that the parties stipulated to treat as evidence indicates that Donna
Denton, a member of the firm representing petitioner in this proceeding, received an email
indicating that petitioner's agent desired to commence a holdover proceeding against respondent.
This email, petitioner asserts, manifests a desire to commence a holdover proceeding
independent of, and unrelated to, respondent's complaints to HPD, giving petitioner a non-[*8]retaliatory motive for commencement of the proceeding.
Examination of the email, however, indicates that it was sent to petitioner's attorneys at 4:11 pm
on January 5, 2009, the very same date that HPD conducted its inspection of the Building, and
found the conditions that constituted the basis for the HP proceeding related to the Apartment.
Petitioner's own submission establishes unequivocally that the intention to evict respondent was
formed on the same date that complaints about conditions in the Building resulted in violations
being placed, violations that ultimately led to emergency repairs being completed by the HPD's
contractors.
The testimony and evidence demonstrates that petitioner, upon acquiring the
Building, negotiated a rent increase with Oliva, notwithstanding petitioner's assertions that Oliva
is not a tenant subject to any form of rent regulation and is therefore not entitled to receive a
renewal lease. Petitioner could have immediately elected to terminate Oliva's tenancy but instead
agreed to a new rent with him. Petitioner's election to reach a new rental agreement with
respondent is plainly inconsistent with a desire to terminate his tenancy. When heat, hot water,
and electricity to the Apartment simultaneously failed, petitioner, the respondent filed a
complaint with HPD that ultimately resulted in those services being restored; the work, however,
was not done by the petitioner but was completed, on an expedited basis, by contractors
employed by the HPD, notwithstanding the significant costs associated with such emergency
repairs in comparison to the costs of privately hired contractors. During the failure of heat, hot
water, and electricity, respondent was instructed by petitioner's agent as to the address to the
address he should use for payments to petitioner towards arrears that might have been owed at
the time petitioner acquired the Building. The rent ledger placed in evidence by petitioner shows
no such payments. Finally, eleven days after the first appearance in the HP action, and after
respondent refused an offer of money to vacate the Apartment that was made during the
pendency of the HP action, petitioner served the Termination Notice.
What the chronology of events demonstrates is an escalating pattern of conscious
acts aided by the fortuitous circumstance of multiple and simultaneous utility failures, which
together constituted an increasingly strong disincentive to remain in the Apartment. When
respondent, instead of vacating the Apartment, involved the courts and sought correction of the
violations that existed there, petitioner elected to serve a termination notice, formulating that
intention on the same date that HPD inspected the Building. While petitioner urges that the court
find that petitioner formulated the intention to serve the termination notice prior to respondent's
complaints to HPD, petitioner offers no documentary or testimonial evidence to support that
contention; petitioner's only submission is inconsistent with that assertion. No member of the
LLC testified, and petitioner elected neither to present rebuttal testimony and no physical or
documentary evidence offered by petitioner overcomes the defense. In the absence of any such
testimony or evidence, the court concludes that petitioner failed to rebut the presumption of
retaliatory eviction and that the credible evidence before the court supports the defense,
independent of the presumption. The proceeding is therefore dismissed.
Because the court is dismissing this proceeding on the grounds of retaliatory
eviction it does not reach and makes no determination as to respondent's defense that this
proceeding is improperly commenced because the apartment is subject to the Rent Stabilization
Law and Code.
[*9]
This is the decision and judgment of the court.
The exhibits are too voluminous to be returned by mail and may be retrieved at 141 Livingston
Street, from the courtroom.
Dated: New York, New York
August 25, 2009
_________________________________LAURIE L. LAU, J.H.C.
Footnotes
Footnote 1:The digitally recorded trial
commenced on May 22, 2009, continued on June 9, 2009 and concluded on June 25, 2009.
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