Extell 609 W. 137th St., LLC v Santana

[*1] Extell 609 W. 137th St., LLC v Santana 2008 NY Slip Op 52289(U) [21 Misc 3d 1131(A)] Decided on October 27, 2008 Civil Court Of The City Of New York, New York County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2008
Civil Court of the City of New York, New York County

Extell 609 West 137th Street, LLC, Petitioner,

against

Altagracia Santana et al., Respondents



95248/07



Counsel for petitioner

Mitofsky Shapiro Neville & Hazen LLP

152 Madison Avenue - 3rd Floor

New York, NY 10016

212-736-0500

Counsel for respondent Madera

Manhattan Legal Services, Inc.

55 West 125th Street, 10th Floor

New York, NY 10027

212-348-7449

Gary F. Marton, J.

This is a holdover proceeding. The premises at issue is a rent-stabilized apartment. Petitioner alleges that it need not offer a renewal to respondent Santana, whose lease expired on October 31, 2007, because although she is the premises' tenant of record, she does not maintain the same as her primary residence. Petitioner alleges as well that respondent Madera has no rights to the premises independent of Santana's.

Only Madera has appeared herein (but Madera's opposition to the motion decided herewith is supported by an affidavit made by Santana). Madera interposed an answer in which she asserts two separate claims to possession. One is that she has a right to succeed to Santana's tenancy; the other is that petitioner's predecessor in title accepted Madera as a tenant.

Now petitioner moves for summary judgment. The motion is granted as follows: a judgment of possession shall be entered in favor of petitioner and a warrant may issue forthwith, but the issuance of the same shall be without prejudice to any application for relief pursuant to RPAPL § 753.

Petitioner's moving papers show, among other things, that in January, 2006 it became the owner of the building in which the premises is located, that it is the landlord of the premises, that Santana is the premises' tenant of record, that a predicate notice of non-renewal and termination, notice of petition, and petition were duly served, and that Santana does not maintain her primary [*2]residence at the premises. Santana and Madera concede the latter, averring that in May, 2004 Santana became the tenant of record of an apartment about a mile away. The court holds that petitioner need not have offered a renewal to Santana and that petitioner's moving papers make out its prima facie case.

The Rent Stabilization Code provides that an immediate family member of a tenant of record who has permanently vacated premises may succeed to the tenant of record's tenancy if the family member maintained his primary residence at the premises contemporaneously with the tenant during the two years immediately preceding the vacatur. 9 NYCRR § 2523.5(b). Madera, Santana's daughter and therefore an immediate family member, asserts that she may succeed to Santana's tenancy because she and Santana maintained their primary residences at the premises contemporaneously for the two years immediately preceding Santana's vacatur, and that this vacatur occurred in May, 2004. Petitioner asserts that the vacatur occurred, if at all, no earlier than May 24, 2007 when Santana wrote to petitioner asking "that the lease reflect my daughter's name as the primary tenant." Petitioner argues that since Santana was living somewhere other than the premises during the two years preceding May 24, 2007, Madera could not have lived at the premises contemporaneously with Santana during this time and thus by law Madera is not eligible succeed to Santana's tenancy.

It is well-established that a tenant of record's moving out of an apartment or otherwise not maintaining the same as a primary residence is not necessarily the equivalent of vacating or surrendering possession of the premises, and that the former may occur without the latter also occurring if the tenant maintains significant contacts with the apartment. 72A Realty Assocs. v Kutno, 15 Misc 3rd 100 (App Term, 1st Dep't, 2007); St Owner LP v Nee-Chan, 2007 NY Slip Op 51547 (U) (Civ Ct, NY Co,); 360 West 55 St., LP v Anvar, 13 Misc 3rd 7 (App Term, 1st Dep't, 2006); Metropolitan Life v Butler, 2002 NY Slip Op 50014(U) (App Term, 1st Dep't).

Here, Santana maintained significant contacts with the premises after she moved out in May, 2004. One such contact came in the latter half of 2005 when she sought to renew jointly with Madera the two-year lease for the premises that was set to expire on October 31, 2005. That is, in July, 2005 petitioner's predecessor Cromwell Associates mailed to Santana a proposed renewal lease in her pre-printed name alone. Santana received it [FN1], and she and Madera signed it, dated it September 30, 2005, and allegedly mailed it back to Cromwell [FN2]. Santana need not have [*3]done that; instead she might have sent it back with a note advising that she had moved out but that her daughter Madera would be taking her place. Instead, by signing the proposed renewal, Santana disguised the fact that she had moved elsewhere and asserted a significant (albeit in some sense false) relationship to the premises.

Another significant contact occurred on May 1, 2007 in a nonpayment proceeding in this court under index number 61211/07 and captioned Extell 609 West 137th Street LLC v Altagracia Santana. That proceeding concerned the premises at issue herein. By a stipulation "so ordered" on that date Santana agreed, among other things, to pay the rent arrears on the premises.

The court notes too that the rent for the premises for the nine months of April, 2006, June, 2006, and August, 2006 through February, 2007 was paid by money orders bearing both Santana's and Madera's names, and the court notes as well that petitioner's moving papers allege without contradiction that Santana never returned the keys to the premises.

Santana seeks to explain away the stipulation by alleging that on May 1, 2007 in the courthouse petitioner's counsel intimidated her into signing it. However, the allegation is made in a conclusory way and she does not address the fact that the stipulation was translated for her by a court-appointed Spanish interpreter, conferenced with a court attorney, and thereafter allocuted by the court, all via the Spanish interpreter. These were opportunities for her to refuse to enter (or to withdraw from having entered) into an agreement that casts her as a tenant of the premises. Nonetheless, without explanation here in her opposition papers, she forewent those opportunities. Santana also alleges as an explanation for co-signing in 2005 the renewal lease that she was ignorant of the law and thought that if she did not sign, Madera would be evicted. However, as the court wrote in South Pierre Assoc. v Mankowitz, 17 Misc 3rd 53, 55 (App Term, 1st Dep't, 2007): "To ensure the fair and orderly resolution of succession disputes, the governing Code provision (see 9 NYCRR 2523.5 [b] [1]) contemplates the timely interposition of succession claims via a procedure described in the case law as follows:

in the ordinary course of events, a family member, who remains in the apartment following the departure of the named tenant, will receive a renewal notice towards the end of the lease term, directed to the named tenant; the recipient will thereupon inform the landlord of the tenant's departure as well as his status as a family member; and, assuming there is no dispute regarding his status, the surviving family member will receive a renewal lease designating him tenant of record" (245 Realty Assoc., 243 AD2d at 32-33 [emphasis supplied; internal quotation marks omitted]).'"

The court holds that Santana did not surrender possession or otherwise permanently vacate the premises until, at the earliest, she mailed the letter dated May 24, 2007. The court [*4]holds that since Madera cannot show that she and Santana resided contemporaneously at the premises for the two-year period prior to that date, Madera's claim to succession must fail.

Madera also argues that Cromwell accepted her as the tenant of the premises because Cromwell accepted rental payments that Madera made on personal checks bearing Madera's name and the premises' address. However, to document this allegation, Madera offers only copies of the faces of two checks payable to Cromwell. One is dated June 14, 2005; the other is dated August 23, 2005. Madera does not supply copies of the backs of the checks. Thus, whether the checks were cashed by Cromwell remains unknown. Madera does not offer an explanation for not supplying copies of the backs of the checks. Yet a party must lay bare its proof when opposing a motion for summary judgment as to which the proponent has made a prima facie showing. Kosson v Algaze, 84 NY2d 1019 (1995). Madera avers that she paid the monthly rent once Santana moved out in May, 2004 but Madera does not annex copies of checks for the succeeding 12 months of June, 2004 through June, 2005 or offer an explanation for not having done so. Once again, a party must lay bare its proof when opposing a motion for summary judgment.

Madera alleges that she and Santana went to Cromwell at about the time that Santana moved out and requested that the lease be put in Madera's name. Madera states that an unnamed person of unknown authority at Cromwell told them to request the same by letter. Madera asserts that such a letter was sent by certified mail, but she concedes that she is unable to find a copy, and she does not pretend that she received a response. Madera represents that she was able to locate the receipt for the certified mailing and that a copy is annexed as an exhibit to her opposing papers. However, a review of the exhibit shows that it is for a mailing other than certified, and that it is post-marked October 17, 2005, i.e., about a year and a half after Santana moved out of the premises. The court holds that these allegations do not raise material issues of fact that warrant a trial or hearing and that they are of no legal consequence here.

The court holds that Madera has not made a showing of an independent right to possession of the premises sufficient to defeat petitioner's motion for summary judgment. Accordingly, the court grants the relief set out in the third paragraph above.

The court will mail copies of this decision and order to the parties.

DATED: October 27, 2008

New York, New York



Gary F. Marton, J.H.C. Footnotes

Footnote 1:That Santana received this mailing suggests that she may not have filed with the United States Postal Service a change of address card after she moved in May, 2004 to another residence. Neither party has addressed this issue.

Footnote 2:By letter dated October 27, 2005 and sent by certified mail, Cromwell notified Santana, among other things, that the renewal lease sent to Santana in July, 2005 had not been received and that as a consequence, Cromwell would deem the lease renewed for 2 years. On October 31, 2007 Santana signed a return receipt for this letter. This mailing by Cromwell suggests that Cromwell did not receive Santana and Madera's alleged mailing on or about September 30, 2005 of the lease renewal.