Midonnet v Belmont
Annotate this CaseDecided on October 29, 2007
Civil Court of the City of New York, Kings County
Hermian Midonnet and Charles Gilbert Midonnet, Petitioner,
against
Charles Belmont, Respondent.
110185/06
The petitioners were represented by:
Marc Aronson, Esq.
Attorney at Law
107 Smith Street
Brooklyn, New York 11201
718-237-1960
The respondent was represented by:
Rizpah A. Morrow, Esq.
233 Broadway, Suite 2701
New York, New York 10279
212-593-7177
George M. Heymann, J.
Petitioner commenced this licensee holdover proceeding alleging that the respondent "as the tenant of apartment of 2F [front] ... illegally broke through the wall into apartment 2R [rear] and improperly used apartment 2R without the landlord's permission."
The respondent claims that when he moved into apartment 2F in 1984, the additional room that had originally been part of apartment 2R had already been connected to his apartment and the composition of his apartment had never been questioned or challenged until the present owner commenced this proceeding.
The respondent has moved this Court for summary judgment, or, in the alternative, dismissal of the petition. The petitioner has cross-moved for summary judgment.
The petitioner provides a copy of the Altered Building application, dated July 14, 1947, indicating that there are two dwellings on the second floor, each containing three (3) rooms, and a copy of the Certificate of Occupancy, dated November 16, 1961, showing two (2) families on the second floor. All told, there are four stories in the premises known as 239 Court Street, Brooklyn, New York 11201: first floor consists of commercial space and the remaining floors (2, 3 & 4) contain two (2) family dwellings each.
In support of his position, the respondent argues that a Division of Housing and [*2]Community Renewal ("DHCR") Order, dated December 2, 2005, directed the landlord to offer a renewal lease to the respondent having determined that apartment 2F is rent stabilized. The respondent contends that since the landlord never raised the issue of the physical make up or configuration of apartment 2F with the DHCR its Order is determinative of that issue and that the petitioner is collaterally estopped from raising it in the summary proceeding. The respondent also provides as an exhibit ["D"] a hand drawn, not to scale, diagram to illustrate the floor plan of apartment 2F as leased to him.
Notwithstanding the documents submitted by both sides, the Court finds that there are issues of fact that can only be resolved at trial. While it is conceded by both parties that a portion of apartment 2R is now, and apparently has, since the inception of the respondent's tenancy, been utilized as part of apartment 2F, none of the evidence presented resolves the questions of when the wall connecting the two units was broken through to enlarge apartment 2F and to reduce the size of apartment 2, and by whom.
Contrary to the respondent's argument, the DHCR Order makes no reference whatsoever as to the number of rooms that comprise apartment 2F. Clearly, that was not the issue presented at the time and the final determination, that apartment 2F was rent stabilized, as opposed to being exempt for housing the building's superintendent incident to his employment, does not have preclusive effect in this summary proceeding on the question of how many rooms constitute apartment 2F. See, Griffin Units, LLC v.Walker, 2007 NY Slip Op 52053 (U) (Civ. Ct., Kings Co., Heymann, J.) for a discussion of "res judicata" and "collateral estoppel" and orders of the DHCR.
Similarly, the petitioner has not provided any proof showing that it was, in fact, the respondent who illegally appropriated that portion of apartment 2R for his own use and benefit without the landlord's permission.
Generally speaking, at this juncture, the Court would simply refer this matter to the expediter for trial. However, since the issue of jurisdiction over the respondent was raised for improper service of the underlying predicate notice and the Notice of Petition and Petition, it is incumbent upon the Court to address that issue. Unlike most instances where respondents refute the affidavits of service which state that the notices were properly served at the subject premises where they reside, in the case at bar, the respondent does not "reside" in the premises sought to be recovered and extra steps must be taken by the process server to insure that proper service was effectuated in accordance with the statutory scheme.
It should be noted that there is no dispute that the respondent is the legal tenant of record of apartment 2F. It is also clear that the respondent does not reside in the entire apartment designated as 2R but allegedly misappropriated one room thereof. Yet, the Petition describes the premises sought to be recovered as apartment 2R 2nd floor at 239 Court Street, Brooklyn, New York 11201 and the 10 Day Notice to Quit is addressed to the respondent at that address. More specifically, the Notice to Quit describes the premises as "All" rooms of apartment 2R on the 2nd floor. As a result, all attempts at service upon the respondent were made at apartment 2R only, by conspicuous service. Since the petitioner is fully aware that the respondent resides in apartment 2F, regardless of the allegations pertaining to his use of apartment 2R, he should have been served there as well. As the front door to apartment 2R does not provide entry to any portion of apartment 2F, it cannot be reasonably expected that the respondent would read [*3]anything taped to or slipped under the door to apartment 2R nor would he receive the mail addressed thereto. Real Property Actions and Proceedings Law ("RPAPL") §735 (1)(a) provides that in addition to service at the property sought to be recovered, if such property is not the place of residence of such person (i.e.: the respondent herein) and if the petitioner has written information of the residence address of such person, service should also be made at the last residence address as to which the petitioner has such information. Thus, in this situation, the statute required that service upon the respondent be made at both apartments 2F and 2R.
Finally, the contents of the Notice to Quit appear to be a contradiction of terms. On the one hand, the petitioner alleges that "you continued in possession as a licensee without permission of the owner, and your use thereof is hereby revoked as a matter of law", while stating, on the other hand, "you illegally broke through the wall into apartment 2R and improperly used apartment 2R without the landlord's permission." The very essence of a licensee holdover is that at some previous point in time the licensee was granted permission to be in the very premises that is subsequently being sought to be recovered as that permission has been revoked. However, there is no license and none can be revoked if no permission to be in or on the subject premises was given in the first place. The petitioner cannot have it both ways. Moreover, where, as here, the petitioner is not the original landlord to which the respondent entered into any agreement with, he does not have personal knowledge as to whatever transaction(s) transpired in 1984. The bottom line is that if the respondent was, in fact, a licensee then he did not illegally enter into apartment 2R. Conversely, if he didn't have the landlord's permission to enter into any portion of apartment 2R in the first place, then clearly, at no time was he a licensee.
Based on the foregoing, it is the opinion of the Court that the petition must be dismissed. Aside from the inconsistent predicate notice, the service of said notice and the Notice of Petition and Petition were improper and, thus, the Court has no personal jurisdiction over this respondent.
Accordingly, the respondent's motion is granted to the extent of dismissing the Petition without prejudice to renew upon proper papers and proper service thereof.
The petitioner's cross-motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.
Dated: October 29, 2007____________________________
GEORGE M. HEYMANN, JHC
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