Harmon v Mervine

[*1] Harmon v Mervine 2012 NY Slip Op 50134(U) Decided on February 1, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2012
Civil Court of the City of New York, New York County

James D. Harmon, Jr. & Jeanne Harmon, Petitioners,

against

Cheryl Mervine, Respondent.



51685/10



Lester J. Figueroa, Esq.

Borah Goldstein Altschuler et al.

377 Broadway

New York, NY 10013

(212) 431-1300

Janet Ray Kalson, Esq.

Himmelstein McConnell Gribben et al.

15 Maiden Lane

New York, NY 10038

(212) 349-3000

Michelle D. Schreiber, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion to restore to the calendar and strike the answer, and cross-motion to dismiss

PapersNumbered

Notice of Motion and Affidavits Annexed...............1

Notice of Cross-motion and Affidavits Annexed......2

Answering Affidavits................................................3Replying Affidavits..................................................4Exhibits......................................................................Other........................................................................

Upon the foregoing cited papers the decision/order of the Court on these motions is as follows:

In this owner use holdover proceeding the petitioners served a three page predicate notice dated August 27, 2009, informing the respondent that her rent stabilized lease would not be renewed. The first page contains the legal basis for the proceeding, to wit, RSC § 2524.4(a)(1); it [*2]states the statutory language verbatim adding only the names of the parties. The second page, in accordance with RSC § 2524.2(b), contains the facts necessary to establish the claim. After reciting that the petitioners are the owners of the building and reside in an apartment therein, the Notice states:

3. James D. Harmon, Jr. and Jeanne Harmon desire in good faith to move into the premises 32 West 76 Street, Apartment 4-F, New York, NY for their use and occupancy as a primary residence in New York City for a member of their immediate family.

3A. James D. Harmon, Jr. and Jeanne Harmon seek to allow their granddaughter (name omitted [FN1]), age 17 to reside in 32 West 76 Street, Apartment 4-F, New York, NY for her use and occupancy as her primary residence in the City of New York.

3B. [Granddaughter] currently resides in Baldwin, New York, Nassau County with her parents. [Granddaughter] has been accepted to college at Hunter College of the City University of New York and begins classes at Hunter College in or about September, 2009.

4. The prime lease tenant of record of premises 32 West 76 Street, Apartment 4-F, New York, NY 10023 Ms. Cheryl Mervine is neither a senior citizen nor a disabled person as is defined in the Rent Stabilization Law and Code.

Based upon these facts the Notice states the petitioners will not renew the respondent's lease. After the Notice the petitioners changed counsel and thereafter served a Notice of Petition and Petition dated January 8, 2010. The respondent filed a written answer dated February 3, 2010 raising several objections and defenses; the respondent also then changed counsel.

The respondent moved to dismiss the proceeding, or, alternatively, to file an amended answer and for discovery. The petitioners cross-moved to strike objections and defenses. Pursuant to a decision/order dated May 28, 2010, the Court reserved decision on the motion and cross-motion pending a traverse hearing. On September 27, 2010, after a hearing, traverse was overruled.

In a decision/order dated February 17, 2011, the respondent's motion to dismiss was denied, and respondent's alternative relief, to file an amended answer and for discovery, was granted; petitioner's cross-motion was dismissed as moot. In support of the cross-motion petitioners' counsel stated that "the instant action is an owner's use holdover brought by Petitioners JAMES D. HARMON, JR. & JEANNE HARMON who seek to recover possession of the subject premises from the rent stabilized tenant of record, CHERYL MERVINE, for the exclusive use of the subject premises for Petitioners' granddaughter." The decision of the Court began by stating that "this is a holdover proceeding where the petitioner landlord seeks to recover possession of an apartment from respondent tenant for the personal use and occupancy of their granddaughter as her primary residence...." In granting the respondent's discovery request the Court held that respondent "has shown that there is a need to clarify information which is likely to have a direct bearing on whether petitioners intend to use the apartment for the permanent residence of their granddaughter."

The petitioners then moved to reargue seeking to deny or limit discovery, and the [*3]respondent cross-moved to reargue and to broaden discovery. The affirmation submitted by petitioners' counsel in support of the motion stated that petitioners wanted to recover possession of the premises for use by their granddaughter. Counsel for petitioners argued that discovery should be denied or limited stating "the issue in this matter is if the Petitioners have good faith' intent to utilize the apartment for their granddaughter." Counsel stated further that "where the Petitioners choose to work, shop and maintain their finances are not relevant issues" since "Petitioners seek to recover possession for the use of a family member and not themselves (namely, their granddaughter)." In a decision/order dated May 31, 2011 the Court denied the motion and cross-motion to reargue. The Court clarified its prior order to state that discovery in the form of depositions of the petitioners and their granddaughter was ordered; the Court noted that this was warranted given that petitioners' granddaughter "allegedly intends to live in the subject apartment." The Court directed that discovery proceed without undue delay.

Thereafter, counsel for the parties corresponded regarding discovery and a possible appeal. By letter dated September 16, 2011, counsel for petitioners notified respondent's counsel that due to "unforeseen, and very unfortunate circumstances" related to petitioners' granddaughter's health, she would no longer be able to use the subject premises, but petitioners continue to seek possession as their present plans are for their grandson to reside in the apartment. Correspondence between counsel continued through October with petitioners asserting their continued plan to proceed with the case and the respondent arguing it had to be terminated based upon the changed circumstances. The petitioners now move to restore the case to the calendar and strike the answer claiming the respondent failed to move forward with discovery. The respondent moves to dismiss the case on the grounds that petitioners cannot establish their claim based upon the change in circumstances. The motions are consolidated for disposition herein.

The parties do not dispute that the landlords' plans for the subject premises have changed since the petitioners' granddaughter no longer intends to reside in the subject premises. The dispute arises in that the petitioners claim the predicate notice provided that they and their granddaughter would be residing in the premises. Based upon this claim they argue that whether it is they and their granddaughter as originally planned, or they and their grandson as now planned, is irrelevant. On the other hand the respondent asserts that the predicate notice stated that the intended use of the premises was for the petitioners' granddaughter as her primary residence and since that is no longer the case the petitioners cannot establish their claim.

The law is clear that a predicate notice in an owner use case that does nothing more than track the language of the statute is not sufficient to support the ensuing holdover proceeding. See e.g., Numano v Vicario, 165 Misc 2d 457 (AT 1st Dep't 1995); Nahum v Goldschmidt, 2003 NY Slip Op 50028U (AT 1st Dep't). As noted recently by the Appellate Division, First Department, the plain language of the statute coupled with the need for judicial economy supports the mandate "in owner's use' cases that it is not enough for the nonrenewal notice to merely track the language of RSC 2524.4(a)." Hirsch v Stewart, 63 AD3d 74, 81 (1st Dep't 2009).

The petitioners in the instant proceeding assert that the change in circumstances regarding their granddaughter is irrelevant as the predicate notice states that they intend to use the premises for their own use. However, all of the factually specific claims in the Notice refer only to the granddaughter; if those facts are removed as no longer relevant what remains is a facially [*4]insufficient Notice as it "fail[s] to set forth allegations tending to support the stated ground for eviction that [are] fact specific to this particular proceeding (citations omitted)." Isdahl v Pogliani, 22 Misc 3d 14 (AT 1st Dep't 2008). The Notice herein, once the facts relating to the granddaughter are deemed removed, would be insufficient as it would contain only the "barebones allegation concerning the ... landlord's intent to primarily reside in the subject ... premises" and the "unamplified assertion" of where the landlord presently resides. Haruvi v Rosen, 10 Misc 3d 137A (AT 1st Dep't 2005). As such, the Notice would merely track the statutory language and be insufficient to serve as a predicate for this proceeding.

Alternatively, the Notice with the facts as pled is not sufficient to support the instant proceeding since it is not disputed that the granddaughter's circumstances have changed and she is no longer able to reside in the premises. The petitioners' claim that their grandson now intends to reside there does not cure the defect. "The burden is upon the landlord to establish that during the specified period of 150 to 120 [FN2] days prior to the expiration of the lease (when landlord would otherwise have been obligated to offer tenant a renewal lease pursuant to section 60 of the code) the exception to the section 60 renewal requirement relied upon by the landlord was indeed extant. Where the landlord fails to sustain that burden, the tenant's right to an offer of renewal is deemed to have vested during the period 150 to 120 days prior to the expiration of the lease, and that right may not thereafter be abrogated." Short v Graves, 109 Misc 2d 672, 674 (AT 1st Dep't 1981); see also, Caine v Carreker, 116 Misc 2d 419 (AT 1st Dep't 1982). Since it is not disputed by the petitioners that the current plan for their grandson to reside in the premises was only recently formulated, to wit, more than two years after the predicate notice was served, petitioners cannot establish that this was their plan at the time of the Notice when the respondent's right to a renewal lease vested.

Based upon the foregoing the respondent's motion is granted and the petition is dismissed. The petitioners' motion is denied as moot.

This is the decision and order of the Court, copies of which are being mailed to the attorneys indicated below.

Dated: New York, NY

February 1, 2012

_________________________________

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

Footnote 1: The Court omits the name and will refer to the petitioners' granddaughter as "granddaughter" to protect her privacy.

Footnote 2: The time frame noted here was changed to at least 90 and no more than 150 days pursuant to the current Rent Stabilization Code § 2524.2( c).