99 Lafayette Inv., LLC v Ashby

[*1] 99 Lafayette Inv., LLC v Ashby 2008 NY Slip Op 50545(U) [19 Misc 3d 1104(A)] Decided on March 17, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2008
Civil Court of the City of New York, Kings County

99 Lafayette Investor, LLC, Petitioner-Landlord

against

Lana Ashby, Respondent-Tenant



L & T 84473/07



BELKIN BURDEN WENIG & GOLDMAN, LLP

Attorneys for Petitioner

By: Andrew Georgakopoulos, Esq.

270 Madison Avenue

New York, New York 10016

(212) 867- 4466ANGELYN D. JOHNSON

Attorney for Respondents - Undertenants

26 Court Street, Suite 1812

Brooklyn, NY 11242

(718) 875-2145

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by 99 LAFAYETTE INVESTOR, LLC ("Petitioner") and seeks to recover possession of Apartment 2F at 99 Lafayette Avenue, Brooklyn, New York, 11217("Subject Premises") based on allegations that LANA ASHBY ("Ashby") the last rent controlled tenant of record, no longer maintains the premises as her primary residence. Ashby has not appeared in this proceeding, but the undertenants DOUGLAS RADFORD and CHERYL RADFORD ("Respondents") have appeared herein through counsel.

PROCEDURAL HISTORY

This proceeding was commenced on or about August 2007. On or about September 14, 2007, Respondents appeared herein and filed an answer. The answer asserts two affirmative defenses, the first is that Petitioner has created a landlord-tenant relationship, directly with the Respondents, by the acceptance of rent over the nine years Respondents have lived in the subject apartment. The second is that Petitioner has waived its rights to object to Respondents' continued occupancy in the subject premises.

On or about August 15, 2007, the parties entered into a stipulation consenting to discovery. The stipulation provided inter alia that Respondents would submit documents pursuant to a document request, and then appear for depositions. The proceeding was marked off calendar for completion of discovery.

On or about November 28, 2007, Respondent sought to move by Order to Show Cause for summary judgment, and for a stay of discovery pending hearing and determination on the motion. The Court declined to sign the Order to Show Cause based on the prior stipulation between the parties consenting to discovery.

On or about November 30, 2007, Petitioner moved for relief pursuant to CPLR § 3126 based on their allegation that Respondents had not complied with the stipulated discovery. On or about December 7, 2007 both parties agreed, pursuant to stipulation, that Petitioner's 3126 [*2]motion would be withdrawn without prejudice, and the parties instead entered into a submission schedule for a motion and cross-motion seeking summary judgment.

On or about February 5th 2008 Respondents' motion for summary judgment and Petitioner's cross-motion for summary judgment were submitted.

FACTS

Ashby was the last rent-control tenant of record for the subject premises. Ashby resided in the subject premises from 1964 until October 1998, when she permanently vacated the subject premises. Cheryl Radford alleges that she is the "God Sister" of Ashby, and that they have a relationship similar to that of cousins.

Ashby states that Cheryl Radford moved into the subject premises in 1998.Ms. Radford makes three contradictory sworn statements in her affidavits as to when she moved into the subject premises. In paragraph "2" of her November 19, 2007 affidavit, Ms. Radford alleges that she moved into the subject premises in June 1996, and "stayed" with Ashby until Ashby's move in October 1998. In the same paragraph, she alleges that she and her husband "briefly shared the apartment" with Ashby.

However, in paragraph "4" of the same affidavit, Ms. Radford states that she and her husband moved into the subject premises in October 1998, and that they have continued living there to date.

In a third statement in her reply affidavit of January 9th, 2008, Ms. Radford alleges she moved into the premises in 1995.[FN1]

It is undisputed that Petitioner's predecessor in interest was aware that Ms. Radford had moved into the subject premises and was living there.

It also appears to be undisputed that Petitioner's predecessor was aware that Ashby had moved out of the subject premises. This is established, not only by Ashby's affidavit in support, but also by the affidavit of Darius Bynoe. Mr. Bynoe has been employed as the Superintendent for the subject premises since 1995. He resides at the subject building, and his employment continues to date under the Petitioner's ownership. Mr. Bynoe states that he knew Ashby had moved out, and that Cheryl Radford was residing in the subject premises, and states that the prior management was aware of this as well.

Additionally, Respondents submit the affidavit of Russell Wilson, who used to be employed as a maintenance man for the prior owner. Mr. Wilson avers that the prior owner and management company were aware that Cheryl Radford was living in the premises, and that Ashby had vacated. Mr. Wislon also states that he made many repairs for the Respondents, during his employment, at the direction of management.

Respondents allege that they lived in the premises openly and notoriously to date. Respondents further state that they had repairs done, had their name on the mail box, and paid rent during this period. The motion is supported by sporadic receipts for rent payments between the years 1999 and 2006.

The earliest receipts appear to be postal money orders which were only submitted in the name of Lana Ashby. Some of the later money orders also had the name Radford on them. [*3]Many of the photocopies of money orders submitted in support of the motion do not show the name of the person who made the payment.

No payment was made by the Radford's by check until March 1, 2003. Of the checks submitted by Respondent, showing payment of rent from March 2003 forward, almost all of them have Ms. Ashby's name listed on the memo portion in the following manner "Ashby- Radford". All the checks were written on a checking account held only in the name of Douglas Radford, Cheryl Radfords' name did not appear on any of said payments.[FN2]

Respondent also annexes a copy of a 2001 Window Guard Rider on which she appears to have printed the name Ashby-Radford as the Tenant's name with Cheryl Radford's signature underneath.

Respondents state that Ashby's name remained on the account as the tenant of record because Respondents had a friendly and informal relationship with management and "(t)here was no need to change the account designation."Petitioner purchased the subject building from the previous owner on or about February 20th, 2007, and on or about June 2007 Petitioner commenced the instant non-primary residence proceeding by issuing a thirty day notice of termination.

THE MOTIONS

Respondents move for summary judgment pursuant to CPLR § 3212, and seek an order dismissing the petition and declaring that Douglas and Cheryl Radford are the tenants of the subject premises. Petitioner cross-moves for summary judgment and seeks an order entering a final judgment of possession against Respondents.

Both parties concede that Ashby is a non-primary resident and has permanently vacated the subject premises. Respondents allege that Petitioner has waived its right to object to Respondents' occupancy, or alternatively has created a landlord-tenant relationship with Respondents by virtue of the above recited facts.

Petitioner alleges that no waiver applies, and that no landlord-tenant relationship has been created.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). If such a showing has been made, the burden shifts to the opposing party to produce evidence in material form sufficient to establish the existence of material issue of fact requiring a trial. Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In the case at bar, as the non-primary residence of Ashby is admitted and uncontested, and Petitioner's papers do establish a prima facie entitlement to summary judgment as against Ashby. The only issue remaining is whether either of Respondents' two asserted affirmative defenses establish a valid claim for their on going right to possession.

As to the second affirmative defense of waiver, the Court grants Petitioner's cross-motion for summary judgment to the extent of dismissing said defense as a matter of law. Respondent's second affirmative defense alleges that because Respondents have lived in the premises for nine years, with the knowledge and consent of Petitioner's predecessor, that Petitioner has waived the right to contest their occupancy. A tenancy may not generally be created by waiver or estoppel. [*4]Plon Realty Corp. v. A'Abbracci, N.Y.L.J. Nov. 14, 1997, p.25, col. 4 (App. Term, 1st Dept.); Gottlieb v. Aragonos, N.Y.L.J., July 12, 1996, p.21, col.3 (App. Term, 1st Dept.).

The cases relied upon by Respondent in their moving papers stand for the proposition that the acceptance of rent by a landlord from a tenant, with knowledge of the tenant's violation of the terms of the lease, may result in a waiver of the violation. Atkin's Waste Materials, Inc. v. May, 34 NY2d 422 (1974).

Thus while said defense may have been applicable, for example, had Petitioner commenced a proceeding for illegal subletting (See eg Schwartz v. Certified Management Corp., 117 AD2d 521(1st Dept., 1986)), it is not a defense to a proceeding predicated on the non-primary residence of the tenant of record.

Petitioner is correct in arguing that there can be no waiver of a non-primary residence proceeding. Coverage under a rent regulatory scheme is governed by statute and cannot be created by waiver or equitable estoppel. 512 E. 11th St. HDFC v. Grimmet, 148 Misc 2d 971, affd on other grounds 181 AD2d 488; Gregory v. Colonial DPC Corp. III, 234 AD2d 419 (2nd Dept., 1996). A waiver defense will not invalidate a statutory coverage exemption from the Rent Regulatory Laws . Williams v. Gallagher, N.Y.L.J., Mar. 6, 1991, p.23, col.3 (App. Term, 1st Dept.).

Respondent's first affirmative defense alleges that Respondents have become the tenants of the subject premises by virtue of having made payments for nine years which Petitioner accepted and cashed . There is legal authority to support such a defense. For example, in Johny v. Tolbert , 8 Misc 3d 130(A)(App. Term, 2nd Dept., 2005), the Court held the respondent had established at trial an "affirmative recognition of the tenancy by the prior landlords, not merely their knowledge and tolerance of occupant's presence and silent acceptance of rent from her ..". In Tolbert the Respondent presented substantial evidence regarding the affirmative recognoition by the landlord of the occupant as a tenant in her own right. Evidence beyond just the payment and acceptance of rent. The Court noted that : Occupant established through unrebutted testimony that Wavecrest Management (Wavecrest), a prior owner of the premises or the managing agent of a prior owner, affirmatively recognized (respondent) as the tenant... some ten years prior to the date of trial; that the continuing use of the name of the tenant of record, Mary Tolbert was for the administrative convenience of Wavecrest; that Wavecrest knew that Tolbert was moving out of the premises and that occupant would remain therein, and that a subsequent landlord continued this arrangement and took rent in occupant's name alone.

Id. The Court concluded respondent had shown "affirmative recognition of the tenancy" by the prior landlords that went beyond just the knowledge of the occupancy and the acceptance of rent. See also Matter of Equity Props. Corp. v. Joy, 48 AD2d 630 (1975) affd. 39 NY2d 762 (1976).

Thus while the claim may be made legally, there is a high standard in order to overcome the general principle that a tenancy may not be created by waiver or estoppel. Respondents fail to meet this standard. Significantly the Court notes that Respondents do not establish the payment of rent in their own name. Almost every payment tendered either indicates it was only in the name of Lana Ashby, or has Ms. Ashby's name on the document. In fact Many of the checks submitted contain a hyphenated name of "Ashby-Radford".

In Riverside Holdings LlC v. Murray, 2002 WL 992085, The Appellate Term, First Department held that neither the landlord nor its predecessor recognized the sublessee as tenant [*5]in his own right, or waived the right to contest sublessee's occupancy after vacatur of the statutory tenant. In that case, the occupant had three years worth of rent payments made to the landlord in his own name, a far stronger showing then in the case at bar. The implication of the holding of both Riverside and Tolbert is that the acceptance of rent is not enough, and that there must be a showing that an owner affirmatively acted to create and accept the tenancy. See also 171 West Fourth LLC v. Fennel, N.Y.L.J., Feb. 24, 1999 (App. Term, 1st Dept.)(while it is undisputed that landlord accepted rent directly from respondent for several years, all objective factors indicate that landlord treated her as nothing more than a lawful occupant).

Both parties' in moving for summary judgment were required to lay bare their evidentiary proof in admissible form. Friends of Animals v. Associated Fur Mfrs. 46 NY2d 1065 (1979). The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences in the opposing party's favor. Assaf v. Ropog Cab Corp., 153 AD2d 520 (1st Dept., 1989).

Having thus come before the court and laid bare their evidence, Respondents have only established that the predecessor in interest to petitioner knew that Lana Ashby had moved, but continued to accept rent from the respondents, which was designated as being for Lana Ashby's tenancy. Respondents do not demonstrate nor allege any act constituting an affirmative acceptance and agreement to make them the tenants of record after Ashby's departure.

Even viewing all of the evidence presented in the light most favorable to Respondents, Respondents fail to establish a prima facie case for the creation of a landlord tenant relationship with Petitioner, or its predecessor in interest.CONCLUSION

Based on the foregoing the Court grants Petitioner's cross-motion for summary judgment and denies Respondent's motion in its entirety. Petitioner is awarded a final judgment of possession as against Lana Ashby, Cheryl Radford and Douglas Radford. The warrant of eviction shall issue forthwith. The proceeding is restored to the court's calendar at 9:30 a.m. on March 31st, 2008 for a hearing on the length of the stay on execution of the warrant, and the amount of use and occupancy to be paid pending the stay.

This constitutes the decision and order of this Court.

Dated: March 17, 2008

Brooklyn, New York

___________________________

Hon. Sabrina B. Kraus

J.H.C.

TO: Footnotes

Footnote 1: Both parties' papers address the issue succession, however Respondents have not asserted any claim of succession in their answer, thus discrepancies as to when Respondents actually moved in, and whether or not there was any contemporaneous occupancy between Respondents and Ashby are not material facts which need to be determined in this proceeding.

Footnote 2:Only copies of the front of the checks were provided, so it is not possible to see in what manner they were endorsed.