Clearview Apt. Assoc., Lp v Ocasio
Annotate this CaseDecided on September 29, 2004
Civil Court of the City of New York, Queens County
CLEARVIEW APARTMENT ASSOCIATES, LP Petitioner
against
GUMERSINO JR. OCASIO Respondent-Resident-Employee MERCEDES RODRIGUEZ, MARIA TORRES, JESSICA OCASIO, ALEX OCASIO, DAVID OCASIO, "JOHN DOE" and "JANE DOE" Respondent-Occupants
60820/04
Attorney for Petitioner:
Gerald M. Pigott, Esq.
9 East 40th Street 11th Floor
New York, New York 10016
212-725-6100
Attorney for Respondent:
Gordon & Gordon, LLP
BY: Maple A. Gordon, Esq.
36-09 Ditmars Blvd.
Astoria, New York 11105
718-267-9513
Pam Jackman-Brown, J.
The Petitioner, Clearview Apartment Associates, LP commenced the underlying
superintendent holdover proceeding against the Respondent, Gumersino Ocasio, alleging that the term, for which the Respondent was entitled to possession, expired as a result of the Respondent's termination of employment. Respondents Mercedes Rodriguez, Maria Torres, Jessica Ocasio, Alex Ocasio, David Ocasio, "John Doe" and "Jane Doe" are named as Occupants of the Respondent Gumersino Ocasio and undertenants whose occupancy was solely incident to [*2]Respondent's Gumersino Ocasio employment as the building superintendent of the subject premises. In the petition, the Petitioner further alleged that the apartment is not subject to Rent Control regulations nor the Rent Stabilization Law, by reason of the fact that it has been used solely as a superintendent's apartment.
The Respondent and Respondent-Undertenants (hereinafter "Undertenant") represented by Counsel, move this Court in a joint motion pursuant to CPLR 3212 for summary judgment for dismissal. The Respondent and Undertenants allege that the subject premises are rent stabilized and that Undertenant Rodriguez is the rent stabilized tenant of record who resided in the subject premises continuously with the Respondent from1988 to the present. Undertenant Rodriguez further states in her affidavit that she has paid rents during her tenancy.
Respondent contends in his affidavit that he has occupied the subject apartment since 1988 with Undertenant Rodriguez prior to his employment in 2001 and that his occupancy is not an incident of his employment.
In support of the motion, the following documents are attached:
a. A copy of an executed two-year lease beginning April 1, 2000, and ending March 31, 2002, with the prior owner and Undertenant Rodriguez.
b. A copy of an executed two-year lease beginning April 1, 2002, and ending March 31, 2004, with the prior owner and Undertenant Rodriguez.
c. Copies of rent receipts from August to October 2000; December 2000; January 2001; July 2002 to September 2002; April 2003; June 2003 to August 2003.
d. New York State Division of Housing Community Renewal (hereinafter "DHCR") registration for the subject apartment from 1988 to 2001; apartment exemption from July 2001 to June 2003.
In opposition to the motion, the Petitioner moves for discovery and payment of "Use and Occupancy." The Petitioner argues that the Respondent only occupied the apartment incident to his employment. In addition, the Petitioner states that Undertenant Rodriguez has not paid any rent since 1984. In support of the motion, Petitioner attached an affidavit from Jeffrey Pikus who is an agent of the Petitioner in which he states that the rents claimed to have been paid was, in fact, not paid but, in sum, was a fraudulent scheme between the prior owner and Undertenant Rodriguez. He further disputed that Respondent and Undertenant Rodriguez resided continuously because they were separated. In addition, he states that Undertenant Rodriguez last resided in the premises as of March 29, 2004.
The remedy of summary judgment is a harsh and drastic remedy and precludes a litigant from the jurisprudential concept of having a "day in court." Summary judgment should not be granted where there exists a material issue of fact. See Maryland v Craighead,144 AD2d 344 (2nd Dept. 1988) citing Andre v Pomeroy, 35 NY2d 361. In order to find no material issue of fact, the Court must search the record to determine if the motion is adequately supported by sufficient proof by affidavits to recite the material facts, from someone with knowledge, and all evidence to support the facts as with a trial. See Stewart Title Insurance Company, Inc. v [*3]Equitable Land Services, Inc., 207 AD2d 880 (2nd Dept. 1994).
In support of the motion, affidavits, from the Respondent and the Undertenant who are claiming rights to the apartment, were submitted. In addition, the certified records from DHCR show that the apartment was registered as a rent stabilized apartment from 1988 to 2001 with lease renewal between the prior owner and the Undertenant. The last renewal lease was signed on March 15, 2002, for a term from April 1, 2002, to March 31, 2004. During this same time period, the subject apartment was registered with DHCR as exempt for employee from July 10, 2001 to June 13, 2003. The Respondent admitted he was hired as a superintendent in 2001, but had always resided in the same premises with the Undertenant Rodriguez. They both admitted that their tenancy began in 1988 in the subject premises. Undertenant Rodriguez stated that her apartment is registered with her as the tenant of record and that she has not vacated her rent stabilized apartment.
It is clear that Respondent was the superintendent. The question is whether Undertenant Rodriguez vacated her apartment or was the lease terminated pursuant to Rent Stabilization Code prior to the exemption registration with DHCR? In order to defeat the motion and show material issue of facts for trial, the opponent must show sufficient documents from a person of knowledge in like manner as a trial. The only affidavit is from an agent of the present owner\petitioner. There is no information from the prior owner or from the present owner of the change in status of Undertenant Rodriguez rent stabilization status or any document to show that the Undertenant vacated and surrender her right possession.
Both sides agree that Respondent was terminated. However, the termination alone does not answer the ultimate question of the rent stabilization status of the subject premises. The Petitioner did not address, in its opposition, the question of whether or when the subject premises was exempt for employment or it remained rent stabilized. Instead, the Petitioner claimed that any rents paid or receipts given were done only as a ruse to help Undertenant Rodriguez obtain public assistance benefits. There is no information when the Petitioner took ownership or when the rent stabilization status for the subject premises changed.
Under the rent stabilization scheme, the new owner steps into the shoes of the prior owner, and a succeeding landlord is bound by the misfeasance of his predecessor-in-interest. See Helfand v Division of Housing Community and Renewal, 182 Misc2d 1 (NY Sup Ct, 1999). Here, the Petitioner concedes that rent receipts issued by the prior owner and former agent between 2002 and 2003 were prepared for Undertenant Rodriguez to obtain public assistance benefits but that neither the Respondent nor Undertenant Rodriguez ever paid any rents. This concession shows that there was a deliberate attempt to assist in defrauding a governmental agency. There is no other affidavit to show that the Petitioner should be absolved from the acts of his predecessor. As a result, the Petitioner cannot now challenge the authenticity or genuineness of the rent receipts. The Petitioner does not have the clean hands to assert this defense. It is well settled that the court will refuse affirmative aid to a litigant who comes into Court with unclean hands such as where the litigant seeks affirmative relief based on an illegal contract or other illegal conduct. The denial of such relief under such circumstances is a matter of public policy to protect the integrity of the courts as well as a disability to the litigant with unclean hands. See Farino v Farino, 88 AD2d 902 ( 2nd Dept. 1982).
A motion for summary judgment should be granted where the moving party can establish, [*4]by admissible evidence, their cause of action or defense as a matter of law. CPLR 3212(b). Respondent and the Undertenants' overwhelming and unrefuted documentary evidence of two fully executed lease agreements between Undertenant Rodriguez and the prior owner and the rent registration records filed with DHCR listing Undertenant Rodriguez as the rent stabilized tenant of record present a prima facie entitlement to the summary judgment.
Accordingly, the Court finds that there is no triable issue of fact. The motion for summary judgment is granted. This case is dismissed.
The Petitioner's cross motion for discovery is moot.
This constitutes the decision and order of this court.
Dated: September 29, 2004 ______________________________
Pam Jackman-Brown, JHC
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