425 Third Ave. Realty Co. v Greenfield
Annotate this CaseDecided on September 6, 2006
Civil Court of the City of New York, New York County
425 Third Avenue Realty Co., Petitioner,
against
Scott Greenfield, JUSTIN CLAIR and "John Doe", Respondents,
73733/06
Attorney for Petitioner:
David A. Pravda, Esq.
Harwood Building
Scarsdale, NY 10583
914-723-9000
Attorney for Respondents:
Sheila Pepper, Esq.
869 Dune Road
West Hampton Dunes, NY 11978
516-423-9430
Pam Jackman-Brown, J.
This is a holdover proceeding predicated on termination of a license or expiration of a month-to-month term.In the predicated Thirty-Day Notice, served on March 29, 2006, Petitioner states that the notice serves both as a "ten day notice of termination" and a "thirty day notice of termination" effective April 30, 2006. Upon Respondents failure
to vacate, Petitioner commenced the instance proceeding by serving a notice of petition and petition. Respondents interposed an answer.
Thereafter, Respondents moved for summary judgment, pursuant to CPLR §3212 (b), which Petitioner opposed. The salient facts are as follows. In September 2004, Respondents moved into the subject rent stabilized apartment with the permission of [*2]Petitioner and its managing agent and continued occupancy until present. No lease was executed nor was rent paid. DHCR registration lists the apartment as vacant'. The predicate facts state that Respondents are either licensees or month-to-month tenants under an oral lease agreement. The parties dispute whether a lease was offered and refused and whether the management company misrepresented the apartment registration without Petitioner's knowledge.
Unbeknownst to it, Petitioner claims that it's managing agent, either mismanaged or negligently, caused Respondents' occupancy to extend from September 2004 to March 2006 without a lease or rent payments. Based on this mismanagement, Petitioner alleges it is unable to determine Respondents' status to commence the applicable proceeding in Housing Court. Therefore, it commenced this proceeding on two theories and providing the maximum time by serving a thirty-day predicate notice.Assuming that the management company misrepresented the status of the apartment, Petitioner cannot use this defense as a basis for commencing the instant proceeding on two alternative theories.
This posture begs the question of whether Petitioner acquiesced to the actions taken by its management company and allowed the apartment to be registered as "vacant" with DHCR for more than two years and now stands in an innocent position. In any event, the mismanagement defense is not a valid explanation for the instant motion.
Where there is no landlord and tenant relationship but the person moved in with permission. RPAPL §713 requires a ten-day notice be served to terminate a licensee and there is no requirement to serve a thirty-day predicate notice.Obviously, a thirty-day notice provides more time to vacate than is required under RPAPL §713. Under the attendant circumstances, this additional time is not a fatal defect. The subject premises is rent stabilized. If Respondents were tenants, pursuant to the alleged oral lease agreement, they would have rent stabilization status and Petitioner would be required to properly register the apartment with DHCR and comply with the Rent Stabilization Code (hereafter referred as "RSC") to terminate the tenancy. However, Petitioner allowed the subject premises to remain an "illusory vacant" apartment for more than two years and now seeks regress from the court to justify its misconduct. This is a multi complex building located in a high rent area. Indeed, Petitioner's silence on the status of the apartment could be viewed as a calculated risk to circumvent the rent stabilization law.
The core issue is whether this proceeding can be maintained under the theories of (a) licensee no landlord/tenant relationship and (b) month-to-month tenancy existence of
a landlord/tenant relationship.
A petition may be commenced with pleadings in the alternative. (violation of
tenancy/nuisance) Rockaway One Co., LLC v Califf, 194 Misc 2d 191 (App Term 2nd & 11th Depts [2002]); (squatter/licensee) Hodge v Gaither, NYLJ, Oct 29, 2003, at 21, col 1 [*3](Civ Ct., Bx Cty). But see, City of New York v Bullock, 159 Misc 2d 716, aff'd 164 Mis2d 1052 (App Term, 2nd Dept [1995]) wherein the Appellate Term, Second Department affirmed the holding which found that the petition alleging that the respondent was either a squatter or a licencee was inconsistent. Compare, (squatter/licensee) Cypress Holding Corp v Nivar, NYLJ, Jul 19, 1989, at 20, col 2 (Civ Ct, Bx Cty); (abandonment/surrender) Malik v Hillside Clearview Apts. Realty, LLC, NYLJ, Sept 4, 2002 at 22 col 3 (Civ Ct, Qns Cty).If the landlord clearly shows sufficient facts of no knowledge of how the occupancy occurred, pleadings in the alternative maybe allowed. See, (squatter/licensee) 349 East 49th Street Equities v Vought, NYLJ, May 27, 1982 at 5, col 4 (App Term 1st Dept); (squatter/licensee) Newman v Sirkin, 153 Misc 2d 864 (Civ Ct, NY Co [1992]). However, where there is no justification and the petition pleads inherently inconsistent theories, it will not overcome a motion to dismiss (emphasis added). City of New York v Bullock, supra; (unauthorized sublet/non primary residence) Sunset Park Development Corp v Hickerson, Oct 8, 1997, at 27, col 2 (Civ Ct., Kings Cty); (nonpayment/holdover) Scherer, Residential Landlord
and Tenant in New York §7:136 and cases cited therein.
In the instant proceeding, Petitioner conceded that Respondents moved into the subject premises with permission, thereby creating a license to be revoked. The history surrounding the basis for and the term of the occupancy is an issue for trial.However, Petitioner, also, classified Respondents as month-to-month tenants. But, there was no agreement to pay rents nor was rent tendered. There was only an agreement to create a landlord/tenant relationship that was not consummated with a written or an oral lease. What is Respondents status must be definitively determined by Petitioner upon its creation of this "relationship" and remained silent for more than two years. Petitioner cannot paint a predicate notice with several variables on the guise of finding the correct theory. See, Cypress Holding Corp v Nivar, NYLJ, Jul 19, 1989, at 20, col 2 (Civ Ct, Bx Cty).A predicate notice cannot be based on "catch all" theories but must be specific enough to apprise Respondents of the grounds upon which termination is based.
It is the finding of this Court that generally the requisite thirty-day predicate notice served, though inadequate, is not fatally defective since it provided more time for the Respondents to vacate. Petitioner has failed to show any justification why it has no knowledge of Respondents status. Therefore, the predicate notice resting on two distinct inconsistent theories is fatally defective. City of New York v Bullock, 159 Misc 2d 716, aff'd 164 Mis2d 1052 (App Term, 2nd Dept [1995]).
For all of the foregoing reasons, the motion for summary judgment is granted all other parts of the motion is denied as moot.
This case is dismissed without prejudice. [*4]
The above constitutes the Decision and Order of the Court.
Dated: New York, New York______________________________
September 6, 2006PAM JACKMAN-BROWN, JHC
Copies to both sides:
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