S.B.H. Realty Inc. v Santana
Annotate this CaseDecided on April 5, 2017
Civil Court of the City of New York, Bronx County
S.B.H. Realty Inc., Petitioner-Landlord,
against
Ivelise Santana, Respondent-Tenant and "JOHN DOE" and "JANE DOE" Respondents-Undertenants.
51678/16
Counsel for Petitioner
Novick, Edelstein, Lubell,Reisman,
Wasserman & Leventhal, P.C.
733 Yonkers Avenue
Yonkers, New York 10704
(914) 375-0100
Counsel for Respondent
BOOM! Health Legal Services
540 East Fordham Road
Bronx, New York 10458
(718) 295-5598
Brenda S. Spears, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review
of the respondent's motion for summary judgment and the petitioner's cross-motion for summary judgment
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Answering Affirmation and Cross-Motion 2
Replying Affirmation 3
Exhibits 4
Upon the foregoing cited papers, the Decision and Order in the Motion and Cross-Motion is as follows:
The petitioner commenced the instant holdover proceeding, seeking to regain possession of the subject rent stabilized apartment on the grounds that the respondent had breached a substantial obligation of her tenancy and lease in that she has chronically paid her rent late. The petitioner further alleges that it had to five non-payment proceedings against the respondent within the last five years. The respondent, who is represented by counsel, served and filed a verified answer denying these allegations, asserting as an affirmative defense that the petitioner has failed to state a cause of action under 9 NYCRR §2524.3(a). She has also counterclaimed for the award of reasonable attorneys' fees.
The respondent has now moved for pursuant to CPLR Rule 3212(e) for summary judgment on the first affirmative defense and dismissal of the petition. The petitioner has opposed this motion and cross-moved for summary judgment in its favor. For the reasons set forth herein, the respondent's motion is granted; petitioner's cross-motion is denied.
Pursuant to CPLR 3212(b), summary judgment is appropriate in those instances where the moving party can establish his or her cause of action or defense by admissible evidence sufficient for the court to direct judgment in said party's favor as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 (1986); Rotuba Extruders v. Ceppos, 46 NY2d 233, 413 N.Y.S.2d 141 (1978);Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298, 4 Media L. Rep. (BNA) 2503 (1979); Evens v. Charap, 12/18/91 N.Y.L.J. 23, col. 1 (Civ. Ct. N.Y.Co.). As the court noted in Andre v. Pomeroy, 35 NY2d 361, 362 NY2d 131 (1974), motions for summary judgment are designed to expedite civil cases by removing claims from the trial calendar that can be resolved as a matter of law.
To defeat a motion for summary judgment, the opposing party must show facts in dispute that necessitate a trial; conclusory statements or unsubstantiated allegations alone are insufficient. Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S. 595 (1980); Spearmon v. Times Square Stores Corp., 96 AD2d 552, 465 N.Y.S.2d 230 (2nd Dep't 1983);LF One Co. v. Bobrowski, 12/28/90 N.Y.L.J. 21, col. 3 (App. Term,, 1st Dep't).
The respondent has alleged that summary judgment is appropriate because the petitioner has failed to state a cause of action for chronic rent delinquency under 9 NYCRR §2524.3(a).
In the predicate notice, the petitioner stated that the respondent had breached a fundamental obligation of her tenancy in that she had chronically failed to pay her rent when due. The petitioner further alleged that this conduct caused it to bring five non-payment proceedings against the respondent since 2010 and lists said proceedings as: L & T Index Nos. 2350/10, 5267/10. 66898/11. 180/14 and 24219/15. The predicate states that this failure is grounds for eviction under 9 NYCRR §2523.3(a). Section 2523.3(a) provides that grounds for a holdover proceeding bases upon the landlord's contention that the tenant has committed wrongful acts [*2]because the tenant "...has willfully violated such obligation inflicting serious and substantial injury upon the owner within the three-month period immediately prior to the commencement of the proceeding". Section 2524.2 requires that the predicate notice set forth the facts necessary to establish the existence of the grounds alleged to form the basis of the notice.
As the respondent contends, the predicate notice fails to comply with 9 NYCRR §§2524.2S and 2523.3(a). This notice fails to set forth any claim or facts to support a claim, that the respondent's alleged failure to pay rent in a timely manner created a nuisance which interfered with the petitioner's use and enjoyment of the property. The Court of Appeals has held that such allegations must be established in order to assert a chronic non-payment claimed based upon nuisance. Sharp v. Norwood, 89 NY2d 1068, 659 NY2d 834, 681 N.E.2d 1280 (1997). See also, Copart Indus. v. Consolidated Edison, 41 NY2d 564 (1977); Carol Mgt. Corp. v. Mendoza, 197 AD2d 687, 602 N.Y.S.2d 941 (App. Div. 2nd Dep't 1993). In addition, the predicate notice fails to state any wrongful acts committed by the respondent within the three-month period immediately prior to the commencement of the instant proceeding.
There are additional defects in the predicate notice. The petitioner has based its claim of chronic non-payment on the five non-payment proceedings listed in the predicate notice. But, as the petitioner concedes, one of these five proceedings, the parties in L & T Index No. 5267/10 were "Adbar Realty 1562 LLC", as petitioner, and "Pearl Francis" as the respondent. The respondent has argued that this proceeding can not be used to demonstrate that the respondent has been chronically delinquent in paying her rent because it clearly does not involve the parties in the instant proceeding. The as petitioner has argued that the respondent knew or should have known that she had been sued under L & T Index No. 52667/10 and that the respondent could have searched the court computer system to locate the correct case.
Additionally, as stated in the respondent's motion papers, the remaining four non-payment proceedings cited by the petitioner as a basis for this case should be disregarded. In each of these proceeding, the named petitioner was "S.B.H. Realty Management Corp.". The leases proffered as the basis for these four non-payment proceedings list "S.B.H. Realty Management Corp." as the landlord. However, pursuant to the deed annexed as Exhibit "C" to the respondent's motion, owner of the subject building was transferred to "S.B.H. Realty, Inc. from "S.B.H. Management Corp." in June 30, 1997, since years before the respondent moved into the subject premises. Moreover, "S.B.H. Management Corp. was not an active corporate entity when the property was transferred in June 1997, having been dissolved by proclamation as of December 23, 1992. (Exhibit "D" to respondent's motion). The respondent argues that these four cases can not form the basis of the instant chronic non-payment proceeding because the named petitioner in said proceedings lacked standing to maintain the actions because it was not the owner of the property. The petitioner herein disputes that contention, alleging that any claim that the petitioner lacked standing to commence the proceedings had not been raised as a defense in these actions and, result, had been waived.
Petitioner's arguments with respect to issues raised by citation of the incorrect L & T Index Number and the challenges to the named petitioner's standing in the non-payment proceedings are not persuasive. A proper predicate notice must set forth sufficient facts to establish the grounds for the landlord to recover possession. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 (1980). As the court held in 510 [*3]East 5th Street Assocs. v. Gatchell, 9/20/89 N.Y.L.J. 22, col. 2 (Civ. Ct. NY Co.), the predicate notice must set forth the "who, what, when and where: of the grounds for eviction. A petition must be dismissed if the notice upon which it is predicated is inadequate. Morris v. Cole, 2/22/89 N.Y.L.J. 23, col. 4 (Civ. Ct. NY Co.).
In this instant proceeding, the petitioner has attempted to shift its burden onto the respondent. It is undisputed that the petitioner cited a proceeding that did not involve the parties herein as one of the five non-payment proceedings that form the basis of its claim that the respondent is chronically late in the paying her rent. It is also undisputed that the lease and subsequent renewals were with an entity that was not the owner of the subject building and that the petitioner in the four correctly cited proceedings was not the owner of the premises. The fact that the respondent, appearing pro se, could have checked the court's computer system to ascertain the correct index number for the proceeding in question does not obviate the petitioner's obligation to serve a proper predicate notice. Similarly, the fact that the respondent accepted that the entity that signed her lease and lease renewals and sued her for not paying rent due under these as the owner of the property with a legal right to enter into such leases does not relieve the petitioner from its responsibility to establish that the non-payment proceedings underlying the chronic rent delinquency holdover had been brought by a proper party. See, Oppenheim v. Spike, 107 Misc 2d 55, 437 N.Y.S.2d 826 (App. Term 1st Dep't 1980), which held that a proceeding is a nullity if brought by an improper party. See also, William Manor Associates v. Gregory, 5/4/80 N.Y.L.J. 13, col. 2 (App. Div., 2nd Dep't).
Thus, for the reasons set forth herein, the court finds the predicate notice issued in the instant proceeding to be defective on several grounds. These defects can not be cured, and a defective notice can not serve as a basis for the instant holdover proceeding, the petitioner has failed to state a cause of action. Chinatown Apartments, Inc. v. Chu Cho Lam, supra; Spivak Realty Co., Inc. v. Svobodny, 21 Mic. 3d 1147(A), 875 N.Y.S.2d 824 (Dist. Ct. 2008).
The respondent's motion for summary judgment dismissing the petition is granted. The proceeding is adjourned to May 1, 2017 in Part F at 9:30 AM for a hearing with respect to the respondent's counterclaim for attorneys' fees and costs.
This constitutes the decision and order of this court.
Brenda S. Spears, J.
Dated: Bronx, New York
April 5, 2017
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