388 Broadway LLC v Salaway
Annotate this Case
Download PDF
388 Broadway LLC v Salaway 2017 NY Slip Op 32252(U) October 16, 2017 Supreme Court, New York County Docket Number: 71312/2013 Judge: Jack Stoller Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] CIVIL COURT OF TI IE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART N --------------------------------------------------------------- )( 388 BROADWAY LLC, Petitioner, Index No. 71312/2013 - against DECISION/ORDER ELIZABETH SALA WAY and MARIO BOSQUEZ, Respondents --------------------------------------------------------------- )( Present: Hon. Jack Stoller Judge, I lousing Court 388 Broadway LLC. the petitioner in this proceeding (..Petitioner'·), commenced this holdover proceeding against Mario Bosquez, a respondent in this proceeding ("Respondent"), and Elizabeth Salaway, another respondent in this proceeding ("Co-Respondent"), seeking possession of 388 Broadway #4E, New York, New York ("'the subject premises") on the ground that the subject premises is subject to Article 7-C of the Multiple Dwelling Law, commonly known as the "Loft Law", that Co-Respondent docs not maintain the subject premises as her primary residence, and that Respondent's occupancy is derivative Co-Respondent's tenancy. Respondent interposed an answer containing a defense that he had been the victim of an illusory tenancy scheme of Respondent and Petitioner. The Court held a trial in this matter on June 5, 2017, August 31, 2017, and September 25, 2017. The trial expediter referred this proceeding to the t1ial part contemporaneous with a referral of a licensee holdover proceeding that Co-Respondent had commenced against Respondent, captioned at Salawav v. Bosquez, Index # LIT 90628/2012 (Civ. Ct. N.Y . Co.) (..the [* 2] licensee holdo\'cr proceeding.. ). in which Respondent had also interposed an answer containing an illusory tenancy dcl'cnsc. Upon referral of' the licensee holdover proceeding. Co-Respondent discontinued it against Respondent and entered into a stipulation with Petitioner ("the Stipulation··) according to which Petitioner released Co-Respondent from this proceeding and assumed any liability or Co-Respondent\ is a vis Rcspondcnrs counterclaim. Petitioner proved that it is the proper party to commence this proceeding: that the subject premises is subject to the Lon Law; and that Petitioner properly and timely served a predicate notice in this proceeding. 1 Petitioner·s managing member ('"the managing member") testified that the building in v.hich the subject premises is located ("'the Building.. ) has live stories: that there is a commercial unit on the ground 11oor: that there arc two units each on the second through the tilth floors: that he knows the subject premises: that Co-Respondent was the tenant or the subject premises: that Co-Respondent paid the rent every month: that he found out that someone else occupied the subject premises in 2011 at a meeting that Respondent attended at the Lon Board: that he docs not remember having heard of Respondent before that: that he did not get written communications from Respondent before that: that (\)-Respondent had not notified him in writing that she \\US not occupying the subject premises: that he did not give Respondent permission to occup) the subject premises: that he ne\'cr accepted rent from Respondent before the commencement or this proceeding: and that Co-Respondent informed him that she had 1 The appropriate predicate notice to serve on a Loft Law tenant in a nonprimary residence holdover proceeding is a thirty-day notice. Mazda Rcaltv Assocs .. L.L.P. \'. Green, 187 Misc.2d 419. -t20 (App. Term P 1 Dept. 2000). The Court file shows that Petitioner effectuated sen ice of such a notice. 2 [* 3] commenced a holdover proceeding against Respondent a month before he had this proceeding commenced. Petitioner introduced into evidence a rent ledger that showed Co-Respondent's rent as $891.00 a month. The managing member testified that ii' Co-Respondent moved, he would have paid for her fixtures as per the Multiple Dwelling Law and that comparable units in the Building rent for $5.700.00 a month to $7.000.00 a month. The managing member testified on cross-examination that he has owned the Building since May of 1999; that he interacts with tenants of the Building relatively rarely; that the Building is self-munaged; that he is not aware or repairs needed in the subject premises; that his son ("the managing member's son") would be in charge of repairs and who would deal with access in the last two or three years; that he would call a contractor before that to deal with repair issues after hearing about it from a secretary; that he would know which unit a complaint came from but not necessarily the identity of the person making the con1plaint; that he didn't have reasons to assume that Co-Respondent wasn't using the subject premises as her primary residence; that he first met Respondent at a Loft Board meeting five or six years before his testimony that concerned input from residents of the Building into Petitioner's nanativc statement; 2 and that Respondent signed in as representing Co-Respondent at the meeting and said that he was Co-Respondent's roommate. Respondent introduced into evidence two lists of people at Loft Board meetings on July 30. 2007, December 16, 2010. and October 15, 2015, all of which show the managing member at the meetings and no other party to this proceeding at the meetings. 2 This testimony was taken on J\ugust 31, 2017 . .... .) [* 4] The managing member testified on redirect examination that Respondent may have attended a meeting in the other apartment on the same lloor at the subject prem ises (.. the next door unir'). The tenant of the next door unit (.. the next door neighbor'") testified that she has lived in a prior incarnation of the ne:-.. t door unit since 1976. i.e .. the entire floor. which encompassed what is now the subject premises and the next door unit: that the floor was di\ idcd and her roommate sold fixtures pursuant lo lhc Lon Law for hal !'or the l'ourth fl oor, thus creating the subject premises and the next door unit: that Respondent has lived in the subject premises since 2002: that Co-Respondent moved into the subject premises in the early 1980s: that Co-Respondent stayed in the subject premises for a few years before renting out the subject premises to a series of subtenants, so many ol'whom. she did not remember all of them or how many there were; that she met people who lived in the subject premises because the peculiar history of the configuration of the next door unit and the subject premises requires occupants of the subject premises to pass b) the next door unit en route lo the su~ject premises. and that. in addition to that, Respondent calls or texts her to access the subject premises. The next door neighbor testified that in June of2012, the managing member attended a meeting in the next door unit with her and other tenants of the Building; that Respondent attended that meeting: that this meeting was the first time that she knew of that Respondent met with the managing member; that she has been to several meetings al the r,on Board with the managing member and that Respondent was never there: that she has since been with the managing member and Respondent on several other occasions. like a walk-through or each unit in the Building: that Respondent has called the management of the Building regarding issues in 4 [* 5] need or repair at the Building: that Con Edison billed the subject premises together with the next door unit on the same meter until 2009: and that Respondent paid for the subject premises· share or the dectricit) before that. Respondent testi lied that he first heard or the subject premises because he referred friends or his who needed an apartment to Co-Respondent. who is the sister of a fonncr co-worker or Respondent's; that his friends lived there from about :WOO until 2002: that he docs not know if Co-Respondent lived in the subject premises during this time: that he met Co-Respondent before he moved into the subject premises: that he himself moved into the subject premises around November or December of 2002: that shortly before he moved in. a person he did not know who seemed to have lived in the subject premises gave him a walk-throug.1: that the subject premises ' was rurnished at the time: that Co-Respondent charged him $2.200.00 a month: that the rent did not change: and that Co-Respondent did not Ii\ c with him. Respondent testified that during a period in which Petitioner engaged in construction in the Building. Co-Respondent contacted him about moving into the subject premises: that he started communicating with neighbors in the Building. who asked him how much rent he was paying: lhat he confronlcd Co-Respondent about the amount or rent he was paying her: that she did not answer: and that she started refusing his tenders or rent arter that. Respondent introduced into evidence a letter dated September -L 2012 that Co-Respondent sent him that stated that she was refunding him for his overpayment of the legal rent. The letters.ates that the total amount refunded was S59.320.00. Respondent testified that this amount had been deposited into a bank account or his. Respondent testified that. from 2003 through 2006. he has gn.:ctcd the managing member 5 [* 6] and the managing member's son in the common areas of the Building: that the managing member saw him going into the Building: that the managing did not ask Respondent what Respondent was doing in the.: Building: that he docs not remember if the managing member saw Respondent enter the subject premises: that Respondent interacted with the managing member more frequently after that: that Respondent never appeared at the Lon Board: that in 2012. the managing member asked Respondent for a walk-through of the subject premises to sec about paint: that Respondent was in touch with an architect that Petitioner employed about an l lV AC system: that he interacted on a daily or near-daily basis with a variety or workers on a crew working on the lcgali/ation of the Building pursuant to the Loft I.aw: and that these workers would text Respondent asking Respondent for access to the subject premises. Rcspondcn1 testi lied that. in May of 20 I I. a crew began to renovate noors. which spewed plumes of dust into the Building: that he and other rcsidcnts of the Building commissioned a dust report: that he mentioned the dust report to the managing member in June or 2012: that the managing member ask.ed Respondent to send the report to him: that he sent the managing member an email with the dust report on August I 3. 20 I 2: that on August I 6. 2012. Respondent was coming to the Building: that the managing member was in the lobby. which was small, at the time with two or three other people: that. as he was about to put his key into the door to the Building. the managing member reached over and opened door and said. "l lcllo. Mario:· and let him in: that the managing member friended him on Facebook: and that the managing member unfriendcd him shortly thcrcartcr. Respondent introduced into evidence texts from the workers on the construction crew asking Respondent for access lo the subject premises from 2011. 2012. and 2013. [* 7] Respondent testilied on cross-examination that he didn"t speak to the managing member in 2002: that he didn"t notil'y the managing member that he moved in 2002 until this case started: that he didn't notify the managing member that he was the sole occupant renting the su~jcct premises from Co-Respondent: that he didn't notify Petitioner that he was renting the premises for an amount O\'Cr su~jcct the legal regulated rent: that he never paid rent to the managing member or anyone associated with Petitioner from 2002 to 2013; that he didn"t say to workers on various crews that he was sub letting the subject premises from Co-Respondent: that these workers referred to the subject premises as ··his apartment"': that he never saw Co-Respondenrs lease: that he never asked for a v.Titten lease from ( 'o-Respondent: that he neYer asked Petitioner for a lease to the subject premises from 2002 until the commencement of this proceeding: and that. between 2002 and 20 I I. he occasionally saw the managing member at the Building. The managing member testified on Petitioner"s rebuttal case that the architect ollen works for him: that the architect first worked for him in the early 2010: that the architect became an unregulated tenant of the Building about six or SC\ en years prior to his testimony: that he did not ask the architect and the architect didn"t tell him who was occupying the subject premises: that the names 01· workers that Respondent mentioned as contacting Respondent sound familiar as sub-contractors who \i:ere working on the legalization process: that their sole duty was to work in the Building and gain access to apartments there for that purpose: that he thought Respondent was a roommate before 2012: that he did not know about a sublet: that neither Respondent nor Co-Respondent informed him of a sublet; that he collected $735.00 a month from Co-Respondent: that he never collected anything from Respondent: thJt he had no relationship with Co-Respondent other than a landlord/tenant relationship: and that he didn't get any 7 [* 8] additional money from Co-Respondent. The managing member testified on cross-examination that the architect was responsible to gain access to other apartments in the Building: that the architect had blanket authority to fix a de minimis repair: that the managing member approved general plans to install an 1IV AC system: that he docsn ·t knc)\\ how \vorkcrs gained access to individual apartments: and that he never gives lists of names of tenants to contractors for access. A prirnc tenancy is an illusory tenancy when it is a sham in that the prime tenant docs not occupy the apartment but instead subleases the apartment for profit and/or deprives the subtenant of rights under the Rent Stabilization Law. Ogisu Corp. v. Allen. 25 Misc.3d I 35(A) (App. Term P 1 Dept. 2009), West 46 Equities v. Henrv. N.Y.L..J .. Sept. 8. 1997. at 26:6 (App. Term 151 Dept.). 255 W . 8W11 Co. v. Gclband, N.Y.L.J. Jun. 5, 2005 at 20:1 (Civ. Ct. N.Y. Co.). The length of time for which a tenant has relinquished occupam:y of the premises. the intent of the asserted tenant to resume occup:mc). and the question or" hether the landlord or the prime tenant exercises dominion and control over the subject premises arc salient considerations. Brucnn \'. Cole. 165 /\.D.2d 443, 447-49 (JS1 Dept. 1991), 270 Riverside Drive. Inc. v. Wilson. 195 Misc.2d 44. 49 (Civ. Ct. N.Y. Co. 2003). Thus. the length of Rcspondcnrs occupancy of the subject premises, the ten-and-a-half years from the end or2002 through the commencement this proceeding. on Jul) 25. 2013. militates in favor of his illusory tenanc1 defense. Sec 545 Ei!!hth Ave. Assoc., L.J>. v. Shanaman. 12 Misc.3d 66, 67-68 (App. Tenn 1'1 Dept. 2006)(u ten-year occupancy supports an illusory tenancy defense), Envoy Tmvcrs J\ssoc. v. Dias, 15 Mise.3d 1104(/\)(Civ. Ct. N. Y. Co. 2006 )(a thirteen- or fourteen -year occupancy supports an illusory tenancy defense). 8 [* 9] Profiteering is a sine <111a non of an illusor) tenancy. Square Block /\ssoc .. Inc . v. Fernandez. 29 Misc.Ju 138(/\)(App. Term 1~ Dept. 20 I 0) . While the evidence shows that Co1 Respondent did indeed profiteer off or Respondent, the evidence also shows that Co-Respondent refunded overpayments to Respondent. In other contexts. a rent-regu lated tenant who profiteers off of a subtenant ma) cure the breach in the lease by refunding the O\·cn:harged amounts. Cambridge Dev., LLC v. Staysna, 68 A.D.3d 614, 615 (1st Dept. 2009), /\ricl /\ssocs .. LL(' v. Brown, 271A.D.2d369. 369-370 (P1 Dept.), leaw lo appeal dismissed, 95 N.Y.2d 844 (2000), 672 Ninth /\ve. LLC v. Burbach. 14 \1isc.3d 1236(/\)(Civ. Ct. N.Y. Co. 2007), Husda Realtv Corp. v. Padien. 136 Misc.2d 92. 9.+ (Civ. Ct. N. Y. Co. 1987) (Tom . .I.). While Co-Respondent undeniably prolitecred at Respondent's expense at lease at some point, Co-Respondent's refund at the very least compromises this clement or Respondent's illusory tenancy defense. Involvement and/or knowledge of Petitioner with regard to Co-Respondent's sublet to Respondent comprises another clement of an illusory tenancy defense. While there is no absolute requirement that there be evidence or collusion on the part or the landlord before an illusory tenancy will be found, "there should he a showing of at least constructive knowledge on the part of the landlord or the subleasing arrangement." Primrose Mgmt. Co. v. Donahoe, 253 /\.D.2d 404, .+05--W6 ( l 't Dept. 1998), Bruenn, supra, 165 J\.D.2d at 447, Salaway v. Bosquez. 45 Misc.3d 130(/\)(/\pp. Tenn lsi Dept. 2014). 1 Vesh v. Antunez. 191 Misc.2d 246. 247 (/\pp. J'erm ]51 Dept. 2002). 255 W. 88th Co., supra. N.Y.L.J. Jan. 5, 2005 a t 20: I. When a landlord deals directly with a subtenant for a decade or more, 545 Ei!.!.hth Ave. /\ssoc., LP., supra. 12 Misc.3d at 67-68. Envoy Towers Assoc .. supra, 15 Misc.3d at 1104(/\), or when a former super 3 This matter \\Us an appeal of a decision rendered on the licensee holdover proceeding. <) [* 10] of a building ..clearly" knew of a tenant's subterfuge, a landlord has the requisite constructive knO\\lcdge of a sublet. Primrose Mgmt. Co .. supra, 253 A.D.2d at 405-406. Comersel). no illusory tenancy will be found when the subtenant participates in a scheme to hide a sublet from a landlord by. for example. inducing a landlord to settle an illegal sublet holdover proceeding by representing that the subtenant is a roommate of a tenant. 68-74 Thompson Realtv, LLC v. f Icard, 54 Misc.3d I 44(A)(App. Term I'' Dept. 2017), by failing to notify a landlord that a tenant had vacated, k_l, Square Block Assoc., Inc., supra, 29 Misc.3d at 138(A). 270 Rivcrsi<le Drive, Inc., supra, 195 Misc.2d at 51, and by paying rent to a landlord from a joint account of the tenant and subtenant. 68-74 Thompson Realty. LLC, supra, 54 Misc.3d at 144(A), Square Block Assoc .. Inc .. supra, 29 Y1isc.3d at 138(A). The evicknce a<lduccd at trial in support of Petitioncr·s constructive knowledge ofCoRespondenrs sublet to Respondent consists of terse. noncommittal exchanges between Respondent and the managing member and communications hcl\vccn Respondent and \Vorkers in the Building about the work they were doing in the Building, mostly concerning access to the subject premises. Respondent did not prove what the connection was between the workers he communicated with and Petitioner. Thus, Respondent asks the Court to infer that his communications with these workers was tantamount to notice to Petitioner and li.1rthermorc that such communications gave Petitioner notice of Co-Respondent's sublet to Respondent. These communications do not compare with a landlord who hills a subtenant directly or designates a subtenant as a lire marshal. 545 Ei!!hth Ave. Assoc .. LP., supra. 12 Misc.3d at 68. or a landlord who accepts "dozens or checks.. from a subtenant and \\ho deals \\ ith the subtenant in Court proceedings. Envov Towers Assoc .. supra. 15 Misc.3d at 1104(A). Aside from dissimilarities to 10 [* 11] other factfindings or illusory tenancies. the communications as dcscrihed by Respondent arc not tantamount to notice to Petitioner of Co-Respondent· s sublet to Respondent. Nor docs tht.: Stipulation amount to collusion. The stipulation occurred on the date of trial. a little short of four years after the commencement of this proceeding. Such a settlement or litigation does not prove collusion pre-dating the commencement or said litigation more than four years prior. The compromised extent of Co-Respondent's profiteering off or Respondent and Respondent's inability to prove. at minimum, Petitioner·s constructive knowledge of CoRcspondenfs sublet outweighs the longe\ ity or Co-Respondent's subletting of the subject pn;mises and Respondent"s occupancy therein. J\ccordingly. the Court dismisses Respondent's defense or illusory tenancy. Petitioner otherwise proved its prima.fi1c:ie case. The Court therefore awards Petitioner a linaljudgmcnt of possession against Respondent. Issuance of the warrant of eviction is permitted forthwith. execution thereof stayed through t\ovember 17. 2017 for Respondent to vacate possession or the subject premises. On default. the warrant may execute on service or a marshal's notice. In its closing argument. Petitioner made an application for a hearing on Petitioner's application for market use and occupancy and for attorneys· fees in th\.! C\'ent that the Court granted Petitioner a linal judgment. The Court calendars the matter for November 3. 2017 at 9:30 a.m . in part N, Room 819 or the Courthouse located at 111 Centre Street, New York, New York. not for a hearing, but for a conference on those issues to attempt to obtain a resolution and for parties to retrieve their trial exhibits. If no resolution is reached, the Court will calendar a 11 [* 12] hearing for a future date. This constitutes the decision and order of this Court. Dated: New York, New York October 16, 2017 HON. JACK STOLLER .I.I I.C. 12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
