Khami v Martin
Annotate this CaseDecided on August 24, 2006
Civil Court of the City of New York, New York County
Olivia Khami and SAMUEL R KHAMI, as Tenants-in-common, Petitioners-Landlord,
against
Marvis Martin, Respondent-Tenant, JEFFREY SMITH, "JOHN DOE" AND "JANE DOE", Respondents-Undertenants.
75351/06
Attorney for PetitionersAttorney for Respondent
BELKIN JURDEN WENIGFISHMAN & NEIL, LLP
& GOLDMAN, LLPBY: JAMES B. FISHMAN, Esq.
BY: JEFFREY GOLDMAN, Esq.305 Broadway, Suite 900
270 Madison AvenueNew York, NY 10007
New York, NY 10016212-897-5840
212-867-4466
Pam B. Jackman-Brown, J.
This holdover proceeding was commenced on the assertion that Petitioners wish to recover Respondent's rent stabilized apartment No. 4F/4R on the fourth floor at 132 West 75th Street for the use of Olivia Khami and her husband and children. A prior predicate notice of intent to not renew the lease, pursuant to Rent Stabilization Code § 2524.4 (a), was sent to Respondent on February 16, 2006; the notice required Respondent to vacate the premises at or before the expiration of her lease on May 31, 2006.
In lieu of an answer, Respondent submitted the within CPLR §3211 motion to dismiss the petition. Respondent asserts that the petition and predicate notice have fatal discrepancies because the petition is brought in the names of Olivia and Samuel Kamhi, while the predicate notice asserts that Olivia and Max Kamhi seek possession of the [*2]apartments. Additionally, Respondent asserts that the petition must be dismissed because it and the predicate notice both improperly described the subject premises as one unit and because the notice fails to set forth sufficient facts to support its claim.
Respondent asserts that the petition must be dismissed because it and the underlying predicate notice both describe the premises as "all rooms fourth floor apartment 4F/4R." In support of her argument, Respondent points to the certificates of occupancy for the premises, one from 1946 which lists the fourth floor as having four furnished rooms and a common kitchen, and one from 1975, amending the certificate to reflect changes on the first and second floors, but also listing the fourth floor as having two apartments. Additionally, the DHCR registration statements for the premises list apartments' 4F and 4R as individual units with different rental amounts for each of them. Based upon this evidence, Respondent insists that Petitioners were required to treat the apartments as individual units and serve separate predicate notices and petitions for each unit.
In opposition, Petitioners submitted a copy of the parties' latest executed lease renewal form, dated April 17, 2004, and signed by Respondent on May 20, 2004. The renewal is for 132 W 75th Street 4F/R. It lists one total prior rental amount, $1,248.04, one security deposit, and offers the one or two year renewal based upon those figures. Petitioners, also, assert that Respondent pays her rent by one check for both spaces and the parties have always regarded the two units as one. Based upon this evidence, Petitioners assert that only one set of papers was required to terminate the tenancy for both spaces.
Based upon the submitted evidence and affidavits from the parties, there is no issue of fact presented regarding the use of the two apartments on the fourth floor, they are both used by Respondent as her living space. The only question presented is whether the apartments are to be legally treated together or separately for the purpose of recovering the space for the owner's own use. What makes the issue unique in this matter is that in prior case law, the building owners have brought individual cases against one of two units occupied by a tenant and the tenant has objected claiming that there could be no legal division of the living space. While the argument is reversed here, with the tenant arguing that the landlord must treat her space as individual units, the prior case law can be applied to the present set of facts.
In the matter of C.H.Page Associates v Dolan (NYLJ, Nov. 8, 1984, at 4, col 2 [App Term, 1st Dept]), the Appellate Term affirmed the lower court's finding that two apartments across the hall from each other should be treated as one; therefore, Petitioner could not prevail on its non primary residence proceeding against one of the apartments. The Court stated: "The salient point, it seems to us, is that these apartments, while not contiguous, had been treated and utilized by the tenant as a de facto single residential unit for many years with the acquiescence of the prior owner. In essence, tenant's primary residence is that combined unit." The Appellate Division, First Department has also addressed this issue. In Sharp v Melendez (139 AD2d 262 [1988]), the Petitioner sought [*3]a declaration that Respondent's two noncontiguous apartments were separate residences, thereby allowing him to proceed against one of the apartments on a non primary residence assertion. In reversing the Supreme Court finding that one of the apartments was in fact not Respondent's primary residence, the Appellate Division reasoned: "Critical to a determination of whether two non adjacent apartments will constitute a single residential unit, is the intention of the tenant, a factor to be determined by the use the tenant makes of the premises. Also relevant is the landlord's knowledge of, and acquiescence in, the arrangement (citations omitted)." (Sharp v Melendez, supra, at 265.) Using these criteria, the Court found that the apartments "are deemed to constitute a single residential unit and tenant's primary residence . . ." (Id., at 266.) Therefore, the Petitioner could not file an action against only one of the apartments. (Also see Hkal 34th Street Limited Partnership v Fran Taylor, Inc., NYLJ, May 31, 2000, at 27, col 1; Billy T. Tracy Associates v Faust, NYLJ, Apr. 15, 1987, at 14, col 2 [Civ Ct, NY County].)
In the present matter, it is undisputed that Respondent has rented and occupied both apartments since 1983 and has used the entire fourth floor as her family's living space. Furthermore, Respondent does not deny signing one renewal lease for both spaces and paying a combined rent every month. No facts or evidence has been provided to the court from either party to describe the physical layout of the spaces and the court has no knowledge as to whether walls have been opened, doors and a kitchen removed, etc.While Respondent asserts that "the petitioners cannot seriously dispute that Respondent resides in two separate apartments" (Affirmation in support of the motion ¶19), she does not explain why she would sign only one renewal lease and pay one rent for the entire floor if she isn't living in both apartments for more than 20 years. See, Samra v Rosen, NYLJ, Aug 1, 2006, at 32, col 1. The certificates of occupancy and DHCR registrations do not change these conclusions. All of the cases involving noncontiguous apartments also had fact patterns including separate registrations and certificates of occupancy showing separate units, yet the courts concluded that the dwellings should be viewed as "one." Clearly the same conclusion can, and must, be drawn when the apartments are contiguous. Therefore, the subject apartments #4F/4R is deemed to a de facto single residential unit.
Based upon the foregoing, the Court finds that Petitioners properly described the premises and Respondent's motion to dismiss on this ground is hereby denied.
The Court also denies Respondent's request to dismiss on the ground that the predicate notice failed to set forth sufficient facts to support the Petitioners' claims. Respondent asserts that Petitioners failed to establish why they needed the entire building for their own occupancy. However, rather than simply stating bare statements with no supporting facts, the predicate notice in fact explicitly detailed Petitioners' floor plan for the premises and intent to turn the entire building into their single family dwelling. While Respondent may dispute these facts and questions the sincerity and voracity of the statements contained within the predicate notice, those issues are matters to be heard at the trial of this matter and go to the "good faith" of Petitioners in seeking the subject [*4]premises. (See Wiertciak v Krol, 2003 NY Slip Op 50807 [U],*2, 2003 WL 21015232, at *1, 2003 NY Misc Lexis 458 at *1 [App Term, 2nd and 11th Jud Dists].) The law is clear that all that is required of a predicate notice is that it contain facts and statements sufficient to apprise Respondent of Petitioners' intentions so that Respondent may prepare an adequate defense. (See Hughes v Lenox Hill Hospital, 226 AD2d 4 [1st Dept 1996].)Based upon the submitted papers, this Court finds that the predicate notice is sufficient to apprise the Respondent of Petitioners' intent for termination so that she may frame an adequate defense.
Additionally, the Court finds that the listing of Olivia and Samuel Kamhi as Petitioners is consistent with the content of the predicate notice, which states that Olivia Kamhi in fact intends to reside in the subject premises along with her husband Max and their children. Olivia and Samuel are the co-owners of the building, Samuel being Max's father. The apartment is not being sought for the use of Samuel, but only for the use of Olivia and her family. The inclusion of Samuel as a co-Petitioner will not render the predicate notice invalid. See Kaye v Castelli (NYLJ, Oct. 4, 1995, at 26, col 2 [Civ Ct, NY County]) and Matz v Blatt (NYLJ, April 25, 1988, at 7, col 4 [App Term, 1st Dept]), wherein co-owners were permitted to bring an owner use holdover for the benefit of only one of them.
Furthermore, contrary to Respondent's argument, the petition and predicate notice are not contradictory. They list the owners as Petitioners and the predicate notice explains that one of the owners wants the apartment for her own use, along with her husband and children (the son and grandchildren of the other owner). This Court finds no ambiguity in the language of these documents. Respondent's Counsel state in his affirmation (¶s11 and 12) that Samuel Kamhi failed to request the apartment via the predicate notice but seeks the apartment via the petition, thereby, creating a conflict between the documents. However, a review of the documents clearly shows that Samuel Kamhi signed the predicate notice and the notice itself explains his relationship to the premises in paragraph 1 of the notice. Additionally, a reading of Respondent's affidavit in reply shows that she has a very clear understanding of the relationship between the owners and the subject building and has not been at all prejudiced by, or unable to formulate a defense to, the subject predicate notice and the petition.
Based upon the foregoing, Respondent's motion to dismiss is denied in its entirety. This proceeding is restored to the calendar on October 3, 2006 at 9:30 a.m. in Part G, Room 823.
This constitutes the decision and order of the Court.
Dated: New York, New York_______________________________
August 24, 2006Pam Jackman Brown, J. H.C.
[*5]
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