Baruch Hashem Yom Yom Corp. v Gadbois

[*1] Baruch Hashem Yom Yom Corp. v Gadbois 2004 NY Slip Op 51512(U) Decided on December 2, 2004 Civil Court, New York County Schreiber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2004
Civil Court, New York County

BARUCH HASHEM YOM YOM CORP., Petitioner,

against

HEARN GADBOIS, Respondent-Tenant, ELIZABETH ACEVEDO "JOHN DOE" and "JANE DOE" Respondents-Under Tenants.



L&T 75970/04

Michelle D. Schreiber, J.

Petitioner commenced the instant holdover proceeding against respondent based on allegations of an illegal sublet. Respondent moves to amend his oral answer,[FN1] and for summary judgment and attorney's fees. [*2]

Respondent's request to amend his oral answer is granted to the extent of allowing the respondent's amended answer, annexed to the moving papers as Exhibit B, to be deemed served and filed as of the date of this decision. Leave to amend should be freely granted where there is potential merit to the defenses and no prejudice to the petitioner. See, CPLR 3025 (b); Yandolino v Alpha Taxi, 126 AD2d 468 (1st Dep't). Respondent moves for summary judgment based upon the amended answer.[FN2]

Respondent Hearn Gadbois ("Mr. Gadbois") has been the rent stabilized tenant of the subject premises for more than twenty years. His current lease commenced on April 1, 2003 and expires on March 31, 2005. In his affidavit in support of the motion, Mr. Gadbois states that he is a professional musician, and in January 2004 he was asked to establish a school of rhythm in Prague, Czech Republic; for a two year period he was to both teach and perform. Since respondent has a limited income and intends to return to his home in New York City, he made arrangements to sublet the apartment to his former student, respondent Elizabeth Acevedo ("Ms. Acevedo"). Ms. Acevedo is a medical student at an osteopathic school in Westbury, New York, but is doing her clinical rotations at hospitals in New York City.

On February 25, 2004 Mr. Gadbois wrote a letter to the petitioner informing it of his intent to sublet his apartment to Ms. Acevedo pursuant to Real Property Law §226-b. The letter indicated that the sublet period would be from April 1, 2004 through March 31, 2006 and that the sublessee would be Ms. Acevedo. Mr. Gadbois supplied Ms. Acevedo's permanent and mailing addresses, and stated that he would be working in Prague from April 10, 2004 through March 28, 2006. Mr. Gadbois provided his address in Prague and stated that he would be returning to the subject premises no later than March 31, 2006. Additionally, Mr. Gadbois enclosed a copy of his current lease and the proposed sublease showing the agreed monthly rent at a lawful rate not exceeding his current rent of $434.31 plus 10% (furnished apartment fee) for a total of $477.74 monthly.

Petitioner's counsel, Eric Kahan ("Mr. Kahan"), responded to the request on March 1, 2004. Mr. Kahan's letter stated that petitioner was denying the request to sublet without prejudice pending the landlord's receipt of an enclosed questionnaire. The questionnaire was divided into two parts, one for the prime tenant and one for the proposed subtenant. It totaled approximately one hundred and eighty-five questions (185) and about twenty-three pages (23). Mr. Gadbois and Ms. Acevedo promptly answered every question and forwarded the questionnaire to the petitioner. In a letter from Mr. Kahan dated March 25, 2004, petitioner denied the request for the sublet stating:

You will be out of the country for the entire duration of the sublet period. Your sub-tenant has very few assets and no means of income or support in light of the fact that your sub-tenant claims to be a student attending medical school in Westbury, New York. Moreover, your sublet request extends beyond the period of [*3]your current lease agreement.

Respondent asserts that there are no disputed issues of fact and that judgment must be entered in its favor as a matter of law because petitioner can not establish its claim for illegal sublet. Petitioner claims that the denial of the sublet was reasonable for the reasons stated in the letter.

Summary judgment is appropriate where the movant establishes the claim by tender of evidentiary proof in admissible form sufficiently to warrant the court as a matter of law to direct judgment in its favor. Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hospital, 68 NY2d 320 (1986). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v Prospect Hospital, 68 NY2d at 324. In determining the motion, a court must be mindful that summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). The evidence must be considered in the light most favorable to the party opposing the motion, Henderson v City of NY, 178 AD2d 129, 130 (1st Dep't 1991), and the motion must be denied where conflicting inferences may be drawn from the evidence. Nowacki v Metropolitan Life Ins. Co., 242 AD2d 265, 266 (2nd Dep't 1997).

Here, Mr. Gadbois and Ms. Acevedo have submitted affidavits detailing their compliance with the requirements of Real Property Law §226-b to lawfully sublet. In opposition, petitioner submits an affirmation of counsel along with a copy of the completed questionnaire. Although the respondents were responsive to all of the questions, petitioner objected to the sublet for the three reasons enumerated in Mr. Kahan's letter.

First, petitioner states that the sublet is denied because Mr. Gadbois will be out of the country for the entire sublet period. This is an unreasonable basis for a denial of the sublet. There is no requirement in Real Property Law §226-b that a prime tenant reside in this country while subletting their apartment. Real Property Law §226-b merely requires that the tenant provide his address for the term of the sublease which Mr. Gadbois provided. Logically, Mr. Gadbois is seeking to sublet his apartment because he is not utilizing it during the relevant time period.

Second, petitioner denied the request to sublet claiming Ms. Acevedo has few assets and no means of income or support. This claim is inaccurate based upon the submissions and, therefore, that part of the denial is also unreasonable. In the questionnaire Ms. Acevedo stated her income for the past calendar year as approximately $50,000 from student loans. She listed her assets as $10,000 in savings, a motor vehicle valued at $11,000, furniture and personal property valued at $13,000, and $700 in cash; the total value of the assets is $34,700. In her affidavit in support of the motion Ms. Acevedo states that she has annual loans of $54,000 to cover tuition of $32,000 plus $22,000 for expenses including rent. Here, respondent's income from her loans is more than enough to cover the $5,732.88 yearly rent for the subject premises.

Finally, petitioner's last reason for denial of the sublet is the claim that the sublet extends [*4]beyond the period of Mr. Gadbois' current lease in violation of the rent stabilization law. Pursuant to 9 NYCRR §2525.6(c), a rent stabilized tenant can sublet the apartment beyond the term of the tenant's current lease and an owner may not refuse to consent to the sublease solely on that basis. A sublease which extends beyond the current lease is subject to the tenant's right to a renewal lease. "Since the estate of a stabilized tenant will automatically extend beyond the expiration date of any given lease, when the renewal option is exercised, it follows that the term of a sublease is not necessarily limited by the expiration date of the prime lease." 72nd Street Associates v Pyle, 124 Misc 2d 1087, 1088 (AT 1st Dep't), aff as mod 105 AD2d 607 ((1st Dep't 1984), app dism 64 NY2d 774 (1985). Therefore, this part of the denial is also unreasonable.

Respondents have complied with all of the requirements of Real Property Law §226-b. Mr. Gadbois informed the petitioner of his professional commitments in Prague for the period of the sublet. He described his intent to return to the subject premises no later than March 31, 2006 indicating that the apartment has been his home for many years and that he has deep roots in the community. Mr. Gadbois gave petitioner a copy of the proposed sublease and is charging a lawful rent amount to a financially suitable sublessee. Based upon all of the submissions the sublet is clearly a bona fide one. Conrad v Third Sutton Realty Co., 81 AD2d 50 (1st Dep't 1981), app den 55 NY2d 601 (1981); Mickenberg v Gabbriellini, 188 Misc 2d 720 (AT 1st Dep't 2001). Based upon the foregoing petitioner failed to establish a reasonable basis to object to Mr. Gadbois' sublet request, and the motion for summary judgment dismissing the petition is granted. J.H. Taylor Const. Corp. v Nibbe, 3/12/01 NYLJ 24:5 (AT 1st Dep't); 240 Assocs. v Thedor, 3/3/97 NYLJ 28:5 (AT 1st Dep't).

Mr. Gadbois' request for attorneys fees is granted to the extent of restoring this matter to the Part A calendar on December 23, 2004 at 9:30 a.m. for a hearing. This constitutes the decision and order of the court, copies of which are being mailed by the Court to the attorneys below.

Dated:New York, New York

December 2, 2004

__________________________

_________________________

Michelle D. Schreiber, J.H.C.

Sperber Denenberg & Kahan, P.CJohn Gorman, Esq..

Eric Kahan, Esq.26 Broadway, 28th floor

48 West 37th Street, 16th floorNew York, New York 10004

New York, New York 10018(212) 509-86640

(917) 351-1335 Footnotes

Footnote 1: In a stipulation dated July 26, 2004, when respondent was pro se, the parties agreed to adjourn the proceeding for trial on August 30, 2004 thereby implicitly deeming the oral answer to be a general denial.

Footnote 2: Although petitioner claims the motion for summary judgment on the amended answer is premature, petitioner submits opposition to that part of the motion. Since sublease cases require a prompt resolution "in the interest of justice and judicial economy" the Court will dispense with the technicalities and adjudicate the matter. Kazarinov v L.B. Kaye Assoc., 111 Misc 2d 944, 946 (Sup. Ct. NY Cty. 1981), rearg den 113 Misc 2d 808 (Sup. Ct. NY Cty. 1982).