167 LLC v Muniz
Annotate this CaseDecided on December 8, 2016
Civil Court of the City of New York, Bronx County
167 LLC, Petitioner,
against
Francisco Muniz MARTHA MENDOZA, Respondent-Tenant, "JOHN DOE" and "JANE DOE" Respondent-Under Tenant/Occupant.
37402/2016
Attorneys for Petitioner:
David L. Moss, Esq.
David L. Moss & Associates
370 Lexington Avenue, Suite 2101
New York, New York 10017
(212) 566-6780
Attorneys for Respondent:
Hayat Bearat, Esq., of Counsel
Marshall Green, Attorney-in-Charge
The Legal Aid Society, Bronx Neighborhood Office
260 East 161st Street, 8th floor
Bronx, New York 10451
(646) 340-1944
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondents' motion for summary judgment:
Papers Numbered
Notice of Motion and Accompanying Affirmation, Affidavit and Exhibits A-G 1
Affirmation in Opposition with Affidavit and Exhibit A 2
Affirmation in Reply and Exhibits A-B 3
Upon the foregoing papers, the Decision and Order on this Motion are as follows:
BACKGROUND & PROCEDURAL HISTORY
This is a holdover eviction proceeding brought by Petitioner 167 LLC against the Rent Stabilized tenants of record of Apartment 3 at 6 East 167th Street, Bronx, New York, Francisco Muniz and Martha Mendoza.[FN1] Petitioner claims that Respondents have failed to cure a substantial obligation of their tenancy by harboring a pet dog without the landlord's prior consent [*2]in violation of the "no pets" provision of their lease.
The Notice of Petition and Petition are dated June 1, 2016, and the case first appeared on the Court's calendar on July 14, 2016. The case was adjourned initially for Respondents to retain and appear by counsel, which they did on August 8, 2016. On that date, counsel for the parties adjourned the case to September 16, 2016 for trial or settlement. Instead, Respondents filed a motion returnable September 16, 2016 seeking leave to interpose a late answer under CPLR §§ 3012(d) and 3025, dismissal of the petition for failure to state a cause of action under CPLR § 3211(a)(7) and/or summary judgment under CPLR § 3212 on their First Affirmative Defense which asserts that Petitioner has waived the "no pets" clause of their lease by failing to comply with the New York City Pet Law, NYC Admin Code § 27-2009.1(b). The New York City Pet Law requires a landlord who seeks to evict a tenant due to breach of a "no pets" lease provision to commence an eviction proceeding within three months of the date when the landlord or its agents has knowledge of the presence of a pet that the tenant has harbored "openly and notoriously".
Respondents support their motion for summary judgment with the affidavit of Mr. Muniz, sworn to on August 17, 2016, attesting to his ownership of a Havanese pet dog named Bella since September 2015. Mr. Muniz asserts in his affidavit that he lives with his wife (co-Respondent Martha Mendoza) and two minor children and that he and his children walk Bella "two times a day, every day, throughout my building and on and/or near the building's premises. We walk Bella between 8:00 am and 9:00 am, and again between 6:00 pm and 7:00 pm." Respondent's Affidavit at ¶ 10. Mr. Muniz states that the landlord's employees ("maintenance workers and the previous and current superintendents of my building", Respondent's Affidavit at ¶ 11) have seen and interacted with Bella, both when making "numerous repairs" since September 2015 in his apartment, where they "have also seen my dog's bed, her bowls, and toys, which are located throughout my apartment," Respondent's Affidavit at ¶ 12, and around the building.
Respondents also support their motion with paperwork documenting the purchase of Bella (female, white, Havanese, d.o.b. 7/4/2015, registered with "America's Pet Registry, Inc." by the breeder, Jesus Morfin) by Ms. Mendoza on September 11, 2015 from Bronx Zoo-Rama Pets. This paperwork includes a sales receipt, an "Information Statement" pursuant to General Business Law Section 753-B, a "Disclosure of Animal Pedigree Registration" form, and a four-page Bronx Zoo-Rama Pets customer information form, all signed by Ms. Mendoza as purchaser; a rabies vaccination certificate signed off on by a veterinarian, Dr. Cornelis Rillen, on November 7, 2015; a notation with the same date on a page with the heading "Deworming Schedule" which references the administration of a product called "Pyrantel"; and one additional notation with the date of November 21, 2015 on a page with the heading "Medical History" referencing a "Booster #80".[FN2]
Petitioner opposes Respondents' motion with its attorney's affirmation and an affidavit sworn to on September 2, 2016 by its managing agent David Tennenbaum, who asserts that "we were made aware" that Respondents were harboring a dog in their apartment in early May 2016, and that, "As soon as we noticed that the Respondents were harboring a dog we notified our attorneys and they timely commenced this action on our behalf." Tennenbaum Affidavit at ¶ 8. Petitioner's managing agent does not claim to have any personal knowledge of the relevant facts and instead asserts that, "I have spoken to various members of our staff, none of whom saw the Respondents' dog prior to May of 2016." Tennenbaum Affidavit at ¶ 9.
In its opposition papers, Petitioner makes two arguments: First, that Respondents' motion to dismiss under CPLR § 3211(a)(7) should be denied because the Petition does state a cause of action against Respondents for their harboring of a dog in violation of their lease. Second, that Respondents' motion for summary judgment should be denied as there are issues of fact with regard to Respondents' affirmative defense that Petitioner waived its right to enforce the "no pets" lease provision by failing to commence this proceeding within the three-month time period imposed by the NYC Pet Law.
In reply, Respondent's attorney submits a second affidavit from Mr. Muniz, sworn to October 19, 2016, setting forth certain additional factual assertions (specifically, the names of two of Petitioner's employees who "saw Bella in my apartment building almost daily" in September 2015) and argues that Petitioner has failed to meet its burden in opposing Respondents' motion for summary judgment "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial of the action." Reply Affirmation at ¶ 15.
DISCUSSION
As a preliminary matter, that branch of Respondents' motion seeking to file a late Answer, which Petitioner did not oppose, is granted, and the proposed Answer which is attached as Exhibit E to Respondents' moving papers is deemed duly served and filed.
With regard to Respondents' request for dismissal under CPLR § 3211(a)(7) for failure to state a cause of action, the court is required on such a motion to afford a liberal construction to the pleading and ascertain whether it alleges facts which fit within any "cognizable legal theory." Leon v Martinez (84 NY2d 83, 614 NYS2d 972 [1984]). The court must "accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability to ultimately establish the truth of these averments before the trier of facts." 219 Broadway v Alexander's, Inc (46 NY2d 506, 509, 414 NYS2d 889, 890 [1979]). Petitioner has adequately stated a cause of action for a holdover eviction proceeding based upon its allegations that Respondents have violated a substantial obligation of their tenancy by harboring a dog in their apartment in violation of the "no pets" clause of their lease. Respondents' claim under the NYC Pet Law that the landlord waived its right to commence this eviction proceeding is an affirmative defense with regard to which the tenant has the initial burden of proof. See, e.g., 184 W 10th St Corp v Marvits (59 AD3d 287, 874 NYS2d 403 [1st Dep't 2009]). Accordingly, as Petitioner has stated a "cognizable legal theory" for this holdover, Respondents' motion to dismiss under CPLR § 3211(a) is denied.
Turning to Respondents' motion under CPLR § 3212(b), in order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v New York Univ Med Center [*3](64 NY2d 851, 853 [1985]); Zuckerman v City of New York (49 NY2d 557, 562, 427 NYS2d 595 [1980]). Once this showing has been made, 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; bare conclusions or unsubstantiated allegations are insufficient. See Zuckerman v City of New York, id.. While there is some flexibility with regard to what is needed to defeat a motion for summary judgment, and the opposing party, as contrasted with the movant, may be permitted to demonstrate an acceptable excuse for its failure to meet the strict requirement of tender in admissible form, see, e.g., Phillips v Kantor & Co (31 NY2d 307, 338 NYS2d 882 [1972])(summary judgment denied even though key statements of fact might turn out to be inadmissible at trial under the Dead Man's Statute), mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient, Alvarez v Prospect Hospital (68 NY2d 320, 324, 508 NYS2d 923, 925-926 [1986]); Zuckerman v New York (49 NY2d at 562, 427 NYS2d at 598). Whether the excuse offered will be acceptable depends upon the circumstances of the particular case, and, in any event, the opposing affidavit should indicate that it is being made by one having personal knowledge of the facts, S J Capelin Associates, Inc v Globe Mfg Corp (34 NY2d 338, 342, 357 NYS2d 478, 481 [1974])(summary judgment awarded where opposing party did not claim that facts were not in its control and opposing party "should therefore have presented proof in evidentiary form substantiating its claim. Moreover, the opposing affidavit should indicate that it is being made by one having personal knowledge of the facts"); Indig v Finkelstein (23 NY2d 728, 296 NYS2d 370[1968])(summary judgment upheld where opposing affidavits found to be insufficient).
Where the opposing party offers nothing but conclusory assertions and tenders no evidentiary proof, summary judgment to the moving party is appropriate. Friends of Animals, Inc v Associated Fur Mfrs (46 NY2d 1065, 1067-1068, 416 NYS2d 790, 792 [1979]). The existence of a factual issue cannot be established on the hearsay information of one with no personal knowledge of the facts. Zuckerman v City of New York, supra; Matter of New York City Asbestos Litig (123 AD3d 498, 1 NYS3d 20 [1st Dept 2014])(affidavit from a company's representative who lacks personal knowledge and which is "conclusory and without specific factual basis" does not meet the opposing party's burden); Eddy v Tops Friendly Markets (459 NYS2d 196, 197, 91 AD2d 1203 [App Div 4th Dep't 1983])("A conclusory affidavit of plaintiff's son, from which we are asked to infer that defendant's employees were stocking the shelves, falls far short of the evidentiary showing necessary to defeat a motion for summary judgment").
The issue presented by Respondents' motion for summary judgment is whether there is a material issue of fact with regard to their defense under the New York City Pet Law, NYC Administrative Code § 27-2009.1, which mandates a waiver of any "no pets" clause in a lease where a tenant is "openly and notoriously" harboring a household pet with the knowledge of the landlord unless the landlord moves to enforce the lease provision promptly — that is, by commencing an eviction proceeding within three months of learning of the pet's presence in the apartment. The background and purpose of the NYC Pet Law were described by the Appellate Division, First Department in Seward Park Hous Corp v. Cohen (287 AD2d 157, 161, 734 NYS2d 42, 46 [1st Dep't 2001]), as follows:
In 1983, the New York City Council, responding to widespread abuses by landlords who sought to evict tenants who harbored pets for an extended period of time, despite no-pet lease clauses, and without prior complaints by the landlord, enacted an ordinance (Local [*4]Law No. 52 [1983] of City of NY) which became Administrative Code § 27-2009.1. Its purpose, set forth in section 27-2009.1 (a) in sum, is twofold: (1) to protect pet owners from retaliatory eviction; and (2) to safeguard the health, safety and welfare of tenants who harbor pets. The ordinance sought to balance the rights of a landlord who acted promptly to evict a tenant upon learning the tenant harbored the pet, against the rights of a tenant who harbored such pet with the knowledge of the landlord, for an extended period of time (three months), without action being initiated by the landlord.The court in Seward Park Hous Corp upheld the lower court's dismissal, after trial, of a holdover proceeding brought based upon the tenant's harboring of a dog in violation of a lease provision, held that it was appropriate for the court "to impute the actual knowledge of the landlord's servants and employees at the building to the non-resident managing agent", and noted that "The question of imputation of knowledge is a question of fact which must be resolved in light of all the circumstances of the case." (287 AD2d at 168, 734 NYS2d at 51, quoting Cohen v. Hallmark Cards, Inc. (45 NY2d 493, 500, 410 NYS2d 282, 286 [1978])).
Respondents have presented sufficient evidence in their moving papers to meet their initial burden on this motion of proving that they harbored their dog "openly and notoriously" in their apartment since September 11, 2015. Under CPLR R 3212(b), the sworn affidavit of Mr. Muniz constitutes the type of evidence that courts consider on a motion for summary judgment. In that affidavit, Mr. Muniz asserts when the pet dog was purchased, what activities he himself engaged in that demonstrated the family's open and notorious harboring of their pet ever since she joined the household and what opportunities Petitioner, through its employees, had to gain knowledge of their pets presence. Mr. Muniz's sworn allegations are corroborated, in part, by documentation of the dog's purchase on September 11, 2015 and the provision of follow-up medical treatment to the dog by a veterinarian on November 7, 2015 and November 21, 2015.[FN3]
Petitioner, the nonmoving party, however, has not produced any proof in admissible form sufficient to support its claim that it did not have knowledge of the dog's presence in Respondents' home until May 2016. Petitioner's opposition, other than its attorney's affirmation, consists solely of the affidavit of Petitioner's managing agent which, certainly, like the affidavit of Respondent Mr. Muniz, constitutes admissible proof. However, the specific allegations of Petitioner's managing agent are deficient as they are merely conclusory; written in the first-person plural (or royal/majestic), using the pronoun "we" (rather than "I"); devoid of description of what the affiant's duties are; lacking any indication that he has any personal knowledge of the facts; and reliant solely on hearsay. Petitioner's managing agent asserts that, "In early May 2016, we were made aware that the Respondents were harboring a dog", Tennenbaum Affidavit at ¶ 4, and that "As soon as we noticed that Respondents were harboring a dog in their apartment in violation of their lease, we notified our attorneys and they timely commenced this action on our behalf", id. at ¶ 8. Petitioner's managing agent does not explain who he is referring to when [*5]he says "we". He also states, "I have spoken to various members of our staff, none of whom saw the Respondents' dog prior to May of 2016," id. at ¶ 10, but fails to submit an affidavit from any of those staff members he spoke with, or from anyone who was in a position to have personal knowledge of information that contradicts the assertions in Respondents' moving papers. The court is not required to accept Mr. Tennenbaum's assertions as competent evidence merely because an affidavit is a sworn document. As explained by the court in Gogos v Modell's Sporting Goods, Inc (87 AD3d 248, 253-254, 926 N.Y.S.2d 53, 57 [1st Dep't 2011]), "It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant's knowledge , and here, defendant failed to meet that burden." See also, e.g., Healthy Way Acupuncture, PC v One Beacon Ins Co (47 Misc 3d 137[A], 15 NYS3d 711 [App Term 2015])(summary judgment denied where it was supported only by affidavit which "lacked probative value, since it failed to set forth the basis of affiant's personal knowledge"). Accordingly, the affidavit of Petitioner's managing agent is without probative value.
Nor does Petitioner provide a convincing argument why it did not submit an affidavit from someone with personal knowledge in opposition to Respondents' motion. The excuse offered by Petitioner's managing agent — Respondents' failure to "provide the names of the maintenance workers or superintendent who allegedly saw the dog prior to May of 2016" renders him "unable to speak with particular persons that the Respondents refer to", Tennenbaum Affidavit at ¶ 10 — is unacceptable.While Respondent Mr. Muniz did not include the names of any particular building employees in his affidavit in support of the motion, and only added them to the record in his Reply Affidavit, Petitioner knows or should know which of its employees were at 6 East 167th Street in September 2015 and subsequent months and in a position to have personal knowledge of any pets that tenants were or were not harboring there "openly and notoriously" and did not submit a sworn affidavit from any of them. As Petitioner opposed Respondents' motion with "mere conclusions, expressions of hope or unsubstantiated allegations or assertions," Zuckerman v New York (49 NY2d at 563-564, 427 NYS2d at 598), this court comes to the conclusion that, based upon Petitioner's "failure to tender evidentiary proof in admissible form," id., Respondents' motion for summary judgment must be granted.
CONCLUSION
For the foregoing reasons, Respondents' motion for summary judgment is granted and the proceeding dismissed.
This constitutes the Decision and Order of this Court.
_________________________
Diane E. Lutwak, Hsg. Ct. J.
Dated: Bronx, New York
December 8, 2016 Footnotes
Footnote 1:Petitioner also names a "Jane Doe" and a "John Doe" as respondents, but Mr. Muniz and Ms. Mendoza are the only respondents who have appeared and answered.
Footnote 2:While Respondents' counsel asserts that Respondents "obtained a license for Bella in September 2015", Affirmation in Support of Motion at ¶ 33, the paperwork attached to Respondents' moving papers does not include any documentation showing that Bella is licensed under New York State and City dog ownership laws (see New York State Agriculture & Markets Law Article 7, § 109; New York City Health Code § 161.04[a]).
Footnote 3:The additional facts asserted in Respondent's Reply Affidavit cannot be considered in determining whether or not Respondents met their initial burden of establishing their defense of waiver under the NYC Pet Law, Colao v. St. Vincent's Med. Ctr., 20 Misc 3d 1139(A), 872 N.Y.S.2d 689, 2008 NY Misc. LEXIS 5155, 2008 NY Slip Op 51799(U) (Sup Ct Richmond Co 2008]); accordingly, the court does not rely on those additional facts in deciding that Respondents did indeed meet their initial burden.
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