Freeman St. Props., LLC v Coirolo

[*1] Freeman St. Props., LLC v Coirolo 2007 NY Slip Op 52299(U) [17 Misc 3d 137(A)] Decided on November 29, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-517 K C. NO. 2006-517 K C

Freeman Street Properties, LLC, Respondent,

against

Jose Coirolo, Appellant, -and- Holly Stocks, Tenant.

Appeals from orders of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated August 8, 2005 and November 1, 2005. The order dated August 8, 2005 denied tenant Jose Coirolo's motion for summary judgment dismissing the petition and for an award of attorney's fees upon his counterclaim. The order dated November 1, 2005, "upon reconsideration," again denied said motion.

Appeal from order dated August 8, 2005 dismissed as superseded.

Order dated November 1, 2005 modified by providing that tenant Jose Coirolo's motion for summary judgment is granted to the extent of dismissing the petition without prejudice; as so modified, affirmed without costs, and, upon searching the record, landlord is awarded summary judgment dismissing without prejudice tenant Jose Coirolo's counterclaim for attorney's fees.

In this commercial holdover proceeding based upon tenants' alleged failure to comply with a notice to cure, tenant Jose Coirolo moved for summary judgment dismissing the petition, averring, inter alia, that landlord and its predecessor knew of, and acquiesced in, the residential use of the premises, and arguing that landlord had therefore improperly brought the proceeding in the Commercial Landlord/Tenant Part. [*2]

Where a premises is used for residential purposes with the landlord's knowledge and acquiescence, a holdover proceeding must be brought in the Housing Part, and a proceeding not brought in said Part must be dismissed notwithstanding the commercial nature of the lease (see Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.42 [a]; U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]; Zada Assoc. v Seven, NYLJ, Feb. 1, 2001 [App Term, 1st Dept]; 7-9 E. 32nd St. Assoc. v Tighe, NYLJ, Feb. 6, 1996 [App Term, 1st Dept]; Gindi v Bateman, NYLJ, Jan. 29, 2004 [Civ Ct, NY County]). Since tenant Coirolo overwhelmingly established, and landlord
failed to dispute by one with personal knowledge of the facts, that landlord and its predecessor knew of, and acquiesced in, the residential use of the subject apartment, which was fully fixtured for residential use when tenants took possession (see also Freeman St. Props., L.L.C. v Thelian, 6 Misc 3d 127[A], 2004 NY Slip Op 51684[U] [App Term, 2d & 11th Jud Dists], revd on other grounds 34 AD3d 475 [2006]), this proceeding was improperly brought in the Commercial Landlord/Tenant Part. Thus, we grant tenant Coirolo's motion for summary judgment and dismiss the petition, both as against tenant Coirolo and, since Coirolo is a necessary party to the proceeding against co-tenant Holly Stocks (see Lozynskyj v Leland, 9 Misc 3d 133[A], 2005 NY Slip Op 51651[U] [App Term, 1st Dept]), as against her as well, without prejudice to landlord's recommencement of the proceeding in the proper forum. However, under the facts herein, tenant Coirolo is not, at this juncture, entitled to attorney's fees (see Elkins v Cinera Realty, 61 AD2d 828 [1978]; R & O Mgt. Corp. v Ahmad, 12 Misc 3d 85 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, we grant landlord reverse summary judgment dismissing without prejudice tenant Coirolo's counterclaim for attorney's fees.

We note that, contrary to what is stated in the dissenting opinion, we do not reach the issue, expressly left unresolved by this Court in Thelian, of whether the
building as a whole is a de facto multiple dwelling. In addition, we make no finding herein as to the status of any other apartment in the building.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.

Weston Patterson, J., concurs in part and dissents in part and votes to dismiss the appeal from the order dated August 8, 2005 and to affirm the order dated November 1, 2005 in the following memorandum:

At the outset, I note that I agree that the appeal from the order dated August 8, 2005 must be dismissed as said order was superseded. However, I would affirm the order dated November 1, 2005.

At issue on this appeal is whether tenant Jose Coirolo has made a sufficient prima facie showing that landlord knew of, and acquiesced in, the residential use of the premises. While tenant has established his residential use of the premises, the question of landlord's knowledge remains a question of fact for trial. In my opinion, tenant has failed to satisfy his requisite burden and, thus, I would vote to affirm the order of the court below dated November 1, 2005. [*3]

In Freeman St. Props., L.L.C. v Thelian (6 Misc 3d 127[A], 2004 NY Slip Op 51684[U] [App Term, 2d & 11th Jud Dists], revd 34 AD3d 475 [2006]), this Court expressly refused to make a finding as to whether the subject premises qualified as a de facto multiple dwelling. Indeed, the Court did not disturb the lower court's determination that the building was not a de facto multiple dwelling. Instead, the Court dismissed the petition solely on the ground that tenant had timely exercised his renewal option. Although the Court, in doing so, found that landlord and its predecessor had actual and constructive notice of the building's residential use, the Court did not determine, as the majority does now, that the proceeding involved residential property, requiring its commencement in the Housing Part (see Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.42 [a]).[FN1] Moreover, a finding that landlord knew of, and acquiesced in, the residential use of the premises prior to 2000 is not determinative of whether landlord here had the same knowledge, where tenants did not sign a lease until 2000. By summarily dismissing landlord's petition as involving "residential" property without a hearing as to its use, the majority has effectively found that the property is a de facto multiple dwelling and has deprived landlord of an opportunity to prove that it did not accede to the property's residential use at the time of these tenants' lease.

Finally, although the majority denies that its decision is based on this Court's prior determination in Freeman St. Props., L.L.C. v Thelian (6 Misc 3d 127[A], 2004 NY Slip Op 51684[U], revd 34 AD3d 475, supra), the majority cites to nothing in tenant Jose Coirolo's submissions to show that he had met his burden on his motion for summary judgment.
Decision Date: November 29, 2007 Footnotes

Footnote 1: Although this Court's decision in Thelian was reversed, the Appellate Division did not disturb the Court's finding that landlord was aware of, and acquiesced in, the building's residential use (Matter of Freeman St. Props., L.L.C. v Thelian, 34 AD3d at 476).