Green Val. Realty LLC v Delgado

[*1] Green Val. Realty LLC v Delgado 2009 NY Slip Op 52314(U) [25 Misc 3d 1227(A)] Decided on November 16, 2009 Civil Court Of The City Of New York, Kings County Gonzales, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2009
Civil Court of the City of New York, Kings County

Green Valley Realty LLC, Petitioner,

against

Hilda Delgado, Respondent.



50107/09

Cheryl J. Gonzales, J.

Petitioner commenced this holdover proceeding on January 2, 2009 seeking possession of respondent's rent stabilized apartment after serving a notice of termination on December 11, 2008. The notice terminated respondent's tenancy pursuant to Rent Stabilization Code §2524.3(a), based on respondent's failure to comply with the notice to cure. Respondent initially appeared pro se. Subsequently, respondent retained counsel and interposed an answer in which she asserted one affirmative defense and two counterclaims.

Petitioner purchased the subject six family dwelling from the City of New York on February 15, 2005, and now seeks to gut and renovate the entire building. Respondent is currently the only occupant of the building. The Notice to Cure served on respondent alleges that respondent defaulted on her lease as follows:

You are the only tenant in a building that is in significant disrepair.

Landlord wishes to make gut renovations and repair all building

systems but cannot do so while you are in occupancy. To that end,

Landlord offered to temporarily relocate you to comparable housing,

so that repairs can be made, and then allow you to reoccupy the

premises at the conclusion of the work. You have failed and refused

to do so, preventing the work that needs to be done at the subject

premises from proceeding as is necessary and required. This violates

the laws of the State of New York and your lease dated February 15,

2005, paragraphs 8 and 11.

Ashley Williams, a managing member of petitioner's LLC, testified that upon purchasing the building, he was informed that he had to give respondent a two year lease, and after that period [*2]he could request that she relocate, renovate the building and raise the rent. Mr. Williams had several conversations with respondent about the work, and he tried to negotiate respondent's relocation with her. Respondent informed him that she looked for an apartment in the area, but the rents were around $1000.00 per month, and she could only afford $600.00 for rent. Subsequently, he wrote to respondent offering to relocate her, but there was no response. The letter dated May 5, 2008 provides no specifics about the location of the apartment to which petitioner would relocate respondent. Mr. Williams testified that the apartment was located in a building in Harlem in which he had an interest. Mr. Williams added that he also spoke with respondent's grandson about the offers he made to relocate respondent.

Mr. Williams testified that he was concerned for respondent's safety because of the condition of the building. The floors sag, the roof leaks, the ceilings on the second and third floors have begun to collapse and the bathrooms in the vacant units are crumbling. Petitioner hired an architect and has had renovation plans drawn and filed with the Buildings Department. In addition, Mr. Williams expressed safety concerns for respondent if she were to remain in the building during the renovation, because beams and walls had to be removed and replaced, and the water and electric supply would be periodically disrupted.

Sylvia Wheeler, a member of petitioner's LLC, also testified that two years ago, she spoke with respondent about the renovation of the subject building and the necessity for her to relocate. Ms. Wheeler described the poor condition of the building with the walls in the hallways crumbling, sheetrock falling, sewage backup when it rains, and a leaking roof. Ms. Wheeler also admitted that she has an individual interest in rental property in Brooklyn in which there was a vacancy within the last year.

Respondent moved to dismiss the proceeding at the conclusion of petitioner's case on the grounds that there was no cause of action, and petitioner failed to provide respondent with an opportunity to cure since petitioner failed to provide details of the apartment to which it sought to relocate respondent. The parties then submitted memoranda on the issue of whether relocation was required under the law and the facts of this case.

Petitioner argues that respondent's failure to vacate the apartment, so that the renovation can take place, impedes its ability to comply with the law and maintain the building in good repair as required under the warranty of habitability as codified in RPAPL § 235-b, the Housing Maintenance Code §27-2005, §27-2008 and §27-2009, and Multiple Dwelling Law §78. Petitioner also relies on the following sections of Rent Stabilization Code (RSC) as support for in encouraging landlords to renovate and maintain the building in good repair: RSC§ 2522.4 which allows landlords to make major capital improvements and recover the costs of the renovations from the tenant over a period of forty months, and RSC §2520.11(e) which allows a landlord to perform a "gut renovation" of 75% of the building and have the building considered new construction thereby removing the building from rent regulation. In its Memorandum of Law, petitioner referred to the numerous" violations issued for respondent's apartment and for the building. In addition, petitioner alleged that there were violations issued by NYC Department of Buildings. However, no proof any violations was offered at trial. Further, Mr. Williams admitted that there was no order to vacate the premises issued by any city agency for [*3]the subject building.

Respondent asserts that petitioner does not have a cause of action because there are no grounds for this proceeding under the lease or the Rent Stabilization Code. The language in the lease provisions cited by petitioner does not address relocation. Further, respondent citing Neighborhood Partnership H.D.F.C., Inc. v. Cousins, Index no. 103563/04, and Quisqueya v. Reynoso, 2001 WL 156880, maintains that without a vacate order, petitioner cannot compel respondent to relocate under these circumstances.

Rent Stabilization Code §2524.3 (a) provides that a proceeding to recover possession of a rent stabilized apartment may be commenced without the approval of DHCR on the ground that the tenant violated a substantial obligation of her tenancy. In the instant matter, petitioner alleges that respondent failed to comply with the obligations set forth in paragraphs 8 & 11 of the lease. The term of lease agreement between the parties, admitted into evidence as Exhibit 4, expired on February 14, 2007. There is no other lease agreement between the parties, and there is no dispute that respondent is a rent stabilized tenant. Respondent's rights under the lease remain in effect pursuant to Rent Stabilization Code §2523.5(d),( see Rosario v. Diagonal Realty LLC, 8 NY3d 755, 872 NE2d 860 [2007], K enmore Associates v. Burke,18 Misc 3d 1142(A), 859 N.Y.S 2d 895 [2008], and concomitantly so do her obligations. Paragraph 8 of the lease provides:

Tenant must take good care of the Apartment and all equipment and

fixtures in it. Landlord will repair plumbing, heating and electrical

systems. Tenant must, at tenant's cost, make all repairs and

replacements whenever the need results from tenant's act or neglect.

If Tenant fails to make needed repair or replacement, Landlord may

do it . Landlord's reasonable expense will be added rent.

This paragraph speaks to the tenant' s responsibility to maintain the apartment and when the tenant becomes liable for repairs as well as the landlord's responsibility to maintain the building's systems.

Paragraph 11 of the lease addresses access to the apartment for repairs as follows:

The landlord may enter apartment at reasonable hours to repair,

inspect exterminate, install or work on master antennas or other

systems or equipment and perform other work the landlord decides

is necessary or desirable...

Neither of these lease provisions grant the landlord the authority to take possession of the apartment, and require the relocation the tenant. Petitioner's argument that the gut renovation is required in order for it to comply with the housing laws is unavailing. Repairs are not the equivalent of renovation, (Bradbury v. 342 W 30th Street, Corp., 18 Misc 3d 1105(A), 856 NYS2d 22, [2007]) and reasonable access is quantitatively different from temporarily relinquishing possession. There is no evidence to show that repairs required necessitate a gut renovation. Although, petitioner introduced its plans and the scope of the work into evidence, there was no expert testimony as to why the extensive renovation was required or that substantial violations have been issued against the building or dangerous conditions detrimental to life or [*4]health exist in the building. Petitioner's witnesses described conditions in need of repair. However, their testimony was insufficient to establish that a renovation requiring relocation was required.

Further, petitioner provided no legal support for its position that respondent, as a rent regulated tenant, is required to relocate to permit renovations. Petitioner cites no law that affords the remedy that petitioner seeks. Rent Stabilization Code §2524.5(3) specifically authorizes relocation of tenants to allow the rehabilitation of a building in need of repair under the PHFL, the Housing New York Program Act , or the U..S. Housing Act of 1937. Under this section of the Rent Stabilization Code the landlord is required to seek permission from DHCR and meet certain conditions. Petitioner meets none of these criteria. In addition, unless specifically authorized by statute, petitioner cannot maintain a proceeding to evict a tenant without such permission( see Neighborhood Partnership H.D.F.C., Inc. v. Cousins, Index no. 103563/04, and Quisqueya v. Reynoso, 2001 WL 156880).

Moreover, the lease terms upon which petitioner relies provide no support for its claim that respondent violated a substantial obligation of her tenancy. Nothing in the lease provisions upon which petitioner relies obligates respondent to relocate.

Accordingly, respondent' s motion to dismiss the petition is hereby granted.

This constitutes the decision and order of this court.

Dated: November 16, 2009

_________________________

Cheryl J. Gonzales, JHC