Richards v Barrows

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[*1] Richards v Barrows 2017 NY Slip Op 50998(U) Decided on August 8, 2017 Civil Court Of The City Of New York, Bronx County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2017
Civil Court of the City of New York, Bronx County

Charles Richards, Petitioner,

against

Donovan Barrows, Respondent, "John Doe" & "Jane Doe" Respondents.



LT-60745-16/BX



MARK H. COHEN & ASSOCIATES PC

Attorneys for Petitioner

By: ALEXANDER H. YETWIN, ESQ.

1942 Williamsbridge Road, 2nd Flr

Bronx, New York 10461

718.993.1710

THE BRONX DEFENDERS

Attorneys for Respondent

By: STEVEN T. HASTY, ESQ.

360 East 161st Street

Bronx, NY 10451

718.838.7878
Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by CHARLES RICHARDS (Petitioner) pursuant to RPAPL § 713(11) seeking to recover possession of 1154 East 2121th Street, Apt. 2R, Bronx, New York 10469 (Subject Premises), based on the allegation that DONOVAN BARROWS' (Respondent) right to occupy the Subject Premises was only incident to his employment as Superintendent and terminated upon termination of his employment.



PROCEDURAL HISTORY

The petition is dated October 12, 2016, and the proceeding was initially returnable in Part K on October 28, 2016. Respondent initially appeared pro se, and the proceeding was adjourned [*2]to December 19, 2016, to afford Respondent an opportunity to retain counsel. Counsel for Respondent filed a notice of appearance dated December 18, 2016.

Respondent filed a jury demand on December 23, 2016, and served a demand for a verified bill of particulars on or about December 29, 2016.x

On January 13, 2017, Respondent moved for leave to conduct discovery, and serve and file a proposed answer. The motion was adjourned by stipulation to March 2, 2017, and pursuant to said stipulation Respondent agreed to pay use and occupancy by the 5th of each month, without prejudice. The parties further adjourned the motion to April 5, 2017.

On April 5, 2017, the parties resolved the motion by stipulation, which resolved the discovery issues and deemed Respondent's answer served and filed[FN1] . Respondent's answer asserted several defenses including that he is the rent stabilized tenant of record of the Subject Premises, and retaliatory eviction.

On April 5, 2017, Respondent also filed a motion seeking to compel Petitioner to submit a verified Bill of Particulars, however on that date, counsel for Petitioner submitted a document in court which appears to have been accepted as Petitioner's Bill of Particulars.

On or about May 17, 2017, and the proceeding was transferred, over Respondent's objection to Civil Court for a Jury Trial. Respondent states he objected to the transfer because he intended to move for summary judgment, but the court transferred the proceeding anyway.

A Jury Trial is currently scheduled for October 16, 2017 in Part 7.



THE PENDING MOTION

On June 29, 2017, Respondent moved for summary judgment. On August 8, 2017, the court heard oral argument and reserved decision.

Respondent asserts that he is entitled to summary judgment dismissing the proceeding because he is the rent stabilized tenant of record and not subject to eviction without cause, and Petitioner argues that there are disputed material questions of fact which can only be determined at trial.

Respondent states he has lived at the Subject Premises since 1988, and that he began work as a building superintendent in 1994. It is undisputed that Respondent paid rent to Petitioner. Respondent attached copies of 25 money orders paid to Petitioner for rent in the amount of $400 for a period between September 2009 and February 2017.

Respondent also shows receipts for cash payments for a period between 2005 and 2007. The receipts are issued by Petitioner, and acknowledged to be for rent, in the same amount.

Respondent asserts that the payment and acceptance of rent makes him the rent stabilized tenant as a matter of law.

Respondent states that lease were executed, but that he lost the leases in a fire. The file contains certified records from the fire department which confirm there was a fire in the Subject Premises on October 26, 2008, and that Respondent was living in the Subject Premises on that date.

It is uncontested that Respondent was never paid for his work at the building other than to receive a rent concession, limiting his monthly rent to $400.

DHCR rent registrations for the Subject Premises for a period between 1984 and 2016 are [*3]annexed to the moving papers.

From 1984 through 1995, the registrations list the rent stabilized tenant of record as Rita Richards. Respondent asserts that Rita Richards was married to Petitioner through at least 1997, when divorce proceedings were allegedly commenced, and that she did not live in the Subject Premises from 1988 forward, when Respondent asserts he began living in the Subject Premises.

Petitioner registered an initial legal rent for the Subject Premises of $457.60 in 1984 and raised the rent to $705 as of 1995, increases that are alleged to have been based on leases between Petitioner and his wife.

The records show that Petitioner first registered Respondent as the tenant of record for the Subject Premises in 2002 at a rent of $857.54. The prior registration was for a legal rent of $809 per month in 2001, and listed Derrick Fowlin as the tenant of record. During the term where Petitioner registered Respondent as the rent stabilized tenant of record, Petitioner increased the legal rent to $1340 by 2008.

Certified copies of the annual DHCR registrations in the court file show that Petitioner identified Respondent as the "tenant" in the annual registrations for 2003 through 2010. In the annual registrations for 2003 through 2009, Petitioner indicated that the Tenant paid $400, and that said amount was less than the legal rent because of the "Tenant" was a caretaker for the building.

Petitioner submits a very brief affidavit disputing the date that Respondent allegedly moved into the Subject Premises and asserting that the Subject Premises was only given to Respondent as an incident of his employment as a super. Petitioner's "affidavit" states neither the date he alleges Respondent moved in, nor the date he became employed as a Super, he just states that it is untrue that Respondent started living in the Subject Premises in 1988 and became the Super in 1994.



RESPONDENT IS THE RENT STABILIZED TENANT OF RECORD OF THE SUBJECT PREMISES BY VIRTUE OF THE PAYMENT AND ACCEPTANCE OF RENT FOR THE SUBJECT PREMISES

§ 2520.11(m) of the Rent Stabilization Code exempts from Rent Stabilization:

Housing accommodations occupied by domestic servants, superintendents, caretakers, managers or other employees to whom the space is provided as part or all of their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the housing accommodation is a part

(Emphasis added).

It has been held that where the landlord admits the payment and acceptance of rent, the exemption does not apply, and the tenancy remains governed by rent stabilization notwithstanding any reduction in the amount of rent paid for services rendered [530 Second Street Co. LP v Alirkan 37 Misc 3d 52 (App Term, 2nd, 11th and 13th Jud Dis, 2012)].

In this case, this legal premise is further supported by the fact that Petitioner registered Respondent as the rent stabilized tenant of record from 2007, 2008, and 2013-2015; acknowledged that Respondent paid $400 per month for rent; and described Respondent as the tenant in handwritten notations on the annual registrations for the Subject Premises.

Based on the foregoing, the dispute as to when Respondent took occupancy, and when he commenced work as a superintendent do not require a trial. Respondent is the rent stabilized tenant of record for the Subject Premises, and not subject to eviction based on the termination of his employment as superintendent.

The motion is granted and the petition is dismissed.

This constitutes the decision and order of the court.



Dated: August 8, 2017

Bronx, New York

Sabrina B. Kraus, JCC Footnotes

Footnote 1: On said date the proceeding was transferred to Part J.