P.S. 85th St. F.L.P v Demos

[*1] P.S. 85th St. F.L.P v Demos 2007 NY Slip Op 52346(U) [17 Misc 3d 1139(A)] Decided on December 12, 2007 Civil Court Of The City Of New York, Kings County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2007
Civil Court of the City of New York, Kings County

P.S. 85th Street F.L.P, Petitioner-Landlord

against

Charlie Demos, Respondent-Tenant



L & T 101221/07



STERN & STERN, ESQS

Attorneys for Petitioner

By David Lyle Stern, Esq.

50 Court Street, Suite 1100

Brooklyn, New York 11201

(718) 935-9458

CHARLIE DEMOS

Respondent Pro Se

539 85th Street, Apt. 6A

Brooklyn NY 11209

Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by P.S. 85TH STREET F.L.P,("Petitioner") seeking to recover possession of apartment 6A at 539 85th Street, Brooklyn, New York, 11205 ("Subject Premises") based on allegations that CHARLIE DEMOS, the occupant, ("Respondent") had entered possession of the premises as the licensee of Robert Carter ("Tenant"), the rent stabilized tenant of record, and that "upon information and belief" Mr. Carter has since vacated the premises and relocated.

PROCEDURAL HISTORY

The proceeding was originally returnable on November 26, 2007.

On said date the parties agreed to a proposed stipulation of settlement which provided for the entry of a final judgment of possession and the forthwith issuance of the warrant of eviction. The stipulation additionally provided that execution of the warrant would be stayed through January 31, 2008, on condition that Respondent paid use and occupancy for December and January at a rate of $646.04 per month. The stipulation further provided Respondent that upon timely surrender by Respondent, use and occupancy for October and November would be waived.

When the stipulation was presented to the Court for allocution, the Court found that the papers herein appeared to be fatally defective on their face. In any holdover proceeding, particularly one involving a rent stabilized apartment, part of the normal course of the court's duty in allocuting a stipulation, with a pro se respondent, is to insure that the papers state a cause of action for possession on their face. The Court must further determine that if the proposed stipulation entails the waiver of rights and/or defenses by respondent, that respondent is aware of the nature of the defense or claim that is being waived, and knowingly and voluntarily agrees to same.

In the case at bar, once the Court brought the issue of the defective papers to Respondent's attention, Respondent no longer wished to proceed with the stipulation. Respondent stated that he did not wish to waive the defects in the papers, and the matter was [*2]adjourned to December 10, 2007 for the submission of opposition papers to the Court's own sua sponte motion to dismiss for failure to state a cause of action.

Additionally, during the course of the allocution, Respondent alleged that he had lived with the Tenant of record for eight years, that he considered the Tenant to be like a stepfather, and had taken care of him. Petitioner vehemently contested this characterization of the relationship. The Court advised Respondent that he may have succession rights, but that if he wanted to assert them he had the affirmative obligation to assert such claim, and that he should seek the advice of counsel to do so, and appear on the next adjourn date. The Respondent failed to appear on the adjourn date, and the matter was marked submitted.

COURT'S SUA SPONTE MOTION TO DISMISS

The Court at the outset notes Petitioner's objection to the Court sua sponte moving for a dismissal of this proceeding, where the petition and predicate notice appear on their face to fail to state a cause of action for relief. The Court recognizes that there is a fine line between insuring that a pro se respondent, who enters into a stipulation of settlement, does so knowingly and voluntarily, and advocating on behalf of the Respondent. In Housing Court, where the Court adjudicates a high volume of cases, primarily involving pro se respondents, and the proceedings are governed by statutes requiring strict compliance, the balancing act is even more precarious.

Even if Respondent had not appeared at all in Court, the Court would have an obligation to review the pleadings for sufficiency and insure that Petitioner had a sufficient cause of action. Where a Respondent defaults "....the Court must perform its obligations sua sponte, notwithstanding the absence of a motion challenging the sufficiency of the petition or the predicate notices." Homestead Equities Inc. v. Washington, 176 Misc 2d 459 (Civ. Ct., Kings., 1998, J. Acosta).Respondent is not entitled to less scrutiny by the Court by virtue of his appearance, where having been apprised of a possible defense to the proceeding he raises the defense and indicates that he does not wish to waive same, as Respondent did here during the course of the allocution. RPAPL § 743 provides that a respondent may answer orally at the time when the petition is noticed to be heard.

Moreover, the Court is required, prior to approving a proposed stipulation, where one party appears pro se, to insure that any substantial defenses or claims are adequately addressed in the stipulation, or if waived, that the waiver is knowing and voluntary. See eg Advisory Notice issued by Administrative Judge Fern Fisher, AN-LT-10, October 26, 2006.

Where a respondent , having been advised of a defense to the proceeding, does not wish to waive the defense, and where the defense is based on a failure to state a cause of action, so that even reading the papers in the light most favorable to petitioner no claim for relief is stated, This Court holds it is not "crossing the line" to dismiss the proceeding, without prejudice to the institution of a proper proceeding, after having given petitioner notice and an opportunity to be heard.Moreover, having established the defense existed, was not waived,, there would be no point to sending the proceeding to a trial part. The dismissal is based on the defective pleadings, involves no questions of fact, and is required as a matter of law.

In fact, CPLR 409(b) which governs hearings in special proceedings, requires that the Court issue a final order reolving the proceeding in such circumstance. CPLR 409(b) provides in pertinent part that "The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment." (Emphasis added). Similarly, RPAPL 745 only requires a trial "(w)here triable issues of fact are raised....". [*3]

CAN PETITIONER BRING HOLDOVER PROCEEDING AGAINST THE LICENSEE OF A RENT STABILIZED TENANT, WHERE THERE HAS BEEN NEITHER A TERMINATION OF THE UNDERLYING TENANCY, NOR A SURRENDER BY THE TENANT OF RECORD?

In this proceeding the Petitioner has sued Respondent Charlie Demos, whom Petitioner defines as the "occupant-licensee" of the subject premises. The proceeding is based on a 10 day Notice of Termination of Licensee. The notice refers to no particular statute, and instead provides in pertinent part:

PLEASE TAKE NOTICE, that you were previously given license to occupy the subject premises by the former tenant of the subject premises, Robert Carter. You occupy the premises solely as licensees of Robert Carter who, upon information and belief, has vacated the premises and has relocated. Any license you might claim from the lessee of the premises or the owner is hereby revoked.

This statement is the only part of the pleading that can be said to state the facts upon which the proceeding is based, as required by RPAPL 741. The Petition simply incorporates the terms of the predicate notice by reference, but adds no additional facts.

The petition states that the subject premises are subject to rent stabilization, registered as such with DHCR, that the use and occupancy demanded does not exceed the lawful registered rent, and that Respondent's occupancy of the premises is not subject to rent regulation "...by virtue of the fact that there is no landlord-tenant relationship between the parties."

It appears to be undisputed by Respondent that Robert Carter moved out of the premises on or about October 2, 2007. It also appears undisputed that Petitioner has not terminated the tenancy of Mr. Carter, and that Mr. Carter has a valid unexpired lease for the premises through April 2009.

Petitioner does not claim in its pleading or predicate notice that Mr. Carter tendered a surrender for the subject premises, that Petitioner accepted such a surrender, or that Mr. Carter's tenancy was otherwise terminated.[FN1]

A License is a personal revocable and non-assignable privilege to do one or more acts upon the land without possessing any interest or estate in such land. Todd v Krolick, 96 App. Div.2d 695.

RPAPL 713(7) permits a summary eviction proceeding to be brought against a licensee, where the respondent was the licensee of the person entitled to possession at the time of the license, and the license has been revoked by the licensor, expired , or the licensor is no longer entitled to possession of the property. RPAPL 721(7) states that the person entitled to maintain a summary proceeding against a licensee is the person entitled to possession of the property. [*4]

It is well settled that the person entitled to possession of the premises is the rent stabilized tenant of record under an unexpired lease.

The landlord may not elect to evict a licensee from real property pursuant to RPAPL Section 713(7) without first having legally recovered possession of the premises from the licensor ... as the party who is entitled to possession of the property occupied by a licensee. Petitioner has no standing to bring a summary eviction proceeding against Respondent pursuant to RPAPL Section 713(7) in this case.

100 West 72nd Street Associates v. Murphy, 144 Misc 2d 1036 (Civ. Ct., NY Co., J. Tom, 1989); see also Malafis v. Cancel, N.Y.L.J., June 30, 2004, p.21, col. 1(Civ. Ct., Kings Co., J. Heymann); Westway Plaza Associates v. Doe; 179 AD2d 408 (1st Dept., 1992)( absent action taken against tenant of record landlord did not have sufficient right of possession to the premises to evict licensee, and such fundamental defects in notice to quit and petition require dismissal); Vassilakos v. Elizalde, 16 Misc 3d 1109(A), 2007 WL 2012422 (NY City Civ. Ct..); 170 West 85th Street Tenants Association v. Cruz, 173 AD2d 338 (1st Dept., 1991)(absent surrender of possession by tenant who no longer lived in the apartment, landlord was obligated to obtain judgment of possession against tenant and could not proceed directly against undertenant whether he was a subtenant, licensee or occupant); Valley Dream Housing Company, Inc. v. Lupo, 11 Misc 3d 130(A) (App. Term, 9th & 11th, 2006)(absent surrender of possession by tenant lessor must obtain judgment against lessee pursuant to RPAPL 711 and may not proceed directly against licensee pursuant to RPAPL 713); 152 W. Realty LLC v. N & G Luggages, Inc., 15 Misc 3d 1121(A)(Civ. Ct., NY Co., 2007).

Based on the forgoing, it is clear that even when viewed in the light most favorable to the Petitioner, the pleadings and predicate notice in this proceeding do not state a cause of action. Petitioner lacks standing to proceed directly against the licensee of the tenant of record, absent a termination or surrender of said tenancy.

Petitioner argues that the Notice of Termination in this case is reasonable under the circumstances, sufficient to apprise Respondent of the nature of this proceeding. This argument misses the point, which is not that the Notice is not specific enough, but rather the facts, as stated, do not give Petitioner standing to proceed directly against the licensee. The statement that "upon information and belief " the Tenant has vacated and relocated does not allege either termination of Mr. Carter's tenancy or a surrender. Nor is such a statement the equivalent of an allegation that Mr. Carter, who has an unexpired lease for the premises, is no longer entitled to possession, or that Petitioner is entitled to possession as against Mr. Carter.

Nor is it clear what right Petitioner has to terminate the license given to Respondent by Mr. Carter. Thus, in addition to not having standing to maintain the proceeding under RPAPL 721(7), Petitioner has not alleged the basis for its statement in the predicate notice, that the lessee revoked the license to Respondent.

CONCLUSION

In conclusion, based on the foregoing the petition is dismissed for failure to state a cause of action. Said dismissal is without prejudice to the commencement of a proper proceeding. This constitutes the decision and order of this Court.

Dated: December 12, 2007

Brooklyn, New York

_______________________

Hon. Sabrina B. Kraus

J.H.C.

TO: Footnotes

Footnote 1: During the course of the allocution of the initial proposed stipulation of settlement Petitioner's counsel held in his hands a document, which he alleged to be a surrender from the Tenant, but would allow neither Respondent, nor the Court, to see such document, and indicated that he had some question as to the validity of said document, as it was purportedly signed by someone other than the Tenant. As the purported document was never offered or referred to for review in any admissible or permissible manner, the Court's decision does not take into account said allegation.