Lancaster 160 LLC v Shklyar
Annotate this CaseDecided on May 25, 2012
District Court of Nassau County, First District
Lancaster 160 LLC, Petitioner(s)
against
Olga Shklyar, Respondent(s)
LT-006934-11
Gutman, Mintz, Baker & Sonnenfeldt, P.C., Attorneys for Petitioner, 813 Jericho Turnpike, New Hyde Park, New York 11040, 516-775-7007; Law Offices of David A. Day, P.C., Attorneys for Respondent, 11 Grace Avenue, Great Neck, New York 11021, 516-466-6065.
Scott Fairgrieve, J.
The following named papers numbered 1 to 4
submitted on this Motion & Cross Motion
on February 16, 2012
papers numbered
Notice of Motion and Supporting Documents1Notice of Cross Motion & Opposition with Supporting Documents2
Reply Papers to Cross Motion3
Sur-Reply Papers to Motion4
This summary proceeding was commenced by Lancaster 160 LLC, seeking to recover possession of apartment 2B at 160 South Middle Neck Road, Great Neck, New York based upon allegations that Olga Shklyar, the occupant, had entered into possession of the premises as the licensee of Mr. and Mrs. Maksim Smokilo and Natalia Shkylar, the rent stabilized tenants of record, and that Mr and Mrs. Smokilo have since vacated the premises and relocated.
The respondent moves for an order pursuant to CPLR §3211 dismissing the petition upon the grounds that the petition fails to state a cause of action. The respondent also contends that the petitioner lacks standing to maintain this action, as the petitioner failed to name the tenants of record, along with Olga Shklyar, the occupant. In addition, respondent seeks an award of legal fees in accordance with RPL [*2]§234.
The petitioner opposes the respondent's motion and cross moves for court ordered discovery and for this Court to order the deposition of Olga Shklyar.
The instant proceeding is governed by the Emergency Tenant Protection Act. The petitioner commenced this action by the service of a 10 Day Notice To Quit brought pursuant to RPAPL §713(7). RPAPL §713 permits a summary proceeding for possession of property provided the occupants are served with a Ten Day Notice To Quit in the manner set forth in RPAPL §735.
The respondent moves for an order to dismiss this action upon the grounds that the tenants of record, Mr. and Mrs. Maksim Smokilo and Natalia Shkylar, never surrendered possession of the premises despite that they vacated on August 15, 2011. The respondent further contends their tenancy has never been terminated and thus they should have been named in this action. The respondent also contends that petitioner failed to offer the tenants of record, a renewal lease, in violation of the ETPA (see also, 9 NYCRR §2503.5, §2104.6).
In addition, the respondent contends that Olga Shklyar, the mother of Natalia Shkylar, has succession rights in the apartment, as she has been residing in Unit B since June of 2008, two years before her daughter and son in law vacated the apartment.
Attached as Exhibit "C" to respondent's motion is a lease between Lancaster House LLC and Mr. and Mrs. Maksim Smokilo. Notably it does not mention Olga Shklyar, as a tenant or as an individual residing in the apartment. Nor does the Annual Apartment Registration Form of 2007 list Olga Shklyar as a tenant [see, Respondent's Exhibit "D"].
Despite this, the respondent submits the affidavit of Olga Shklyar, who contends that she has been residing with her daughter and son in law in apartment 2B since June of 2008. Prior to that, the respondent contends that she was residing in apartment 1K with her other daughter since 1999, but that in June of 2002 she moved into apartment 2B.
In support of its position that the petitioner cannot maintain this action directly against Olga Shklyar, respondent's counsel relies upon P.S.85th Street F.L.P v. Demos, 17 Misc 3d 1139(A). However, reliance upon this case is misplaced. The facts of that case are clearly distinguishable from the facts at bar.
In Demos, a summary proceeding was commenced against the occupant of the premises, but the allegations in the petition that the tenant of record had vacated were "upon information and belief". More importantly, the tenant of record still had a valid unexpired lease with the landlord. It was under those circumstances, that the court held [*3]that the petitioner lacked standing to bring the action. The court reasoned that the petitioner should have commenced the action against the tenant of record, rather than the occupant, as the tenant of record had a valid unexpired written lease. In so holding, the court relied upon RPAPL §713(7).
The instant summary proceeding was commenced against Olga Shklyar, as a licensee of the premises. RPAPL §713(7) defines a licensee as someone who was entitled to possession of property at the time of the license, but the license has since expired, been revoked or the occupant is no longer entitled to possession.
It is well settled that a landlord has no standing to proceed directly against a licensee of a tenant of record, absent a termination or surrender of the tenancy. Valley Dream Hous. Co., Inc. v. Lupo, 11 Misc 3d 130(A), 815 NYS2d 496 (NY App Term, 9th & 10th Jud Dists 2006).
The ability to succeed to a previous tenant's tenancy by way of the parties' relationship (i.e., remaining family members), is referred to as "succession rights". Succession rights have been recognized based upon federal statutes defining "family" and "elderly family", which suggests generally that a remaining family member may be entitled to a Section 8 tenancy.
Succession rights have been recognized in various court decisions and in Federal dicta. However, the Federal regulations are silent with regard to succession rights (see, NSA North Flatbush Assoc. v. Mackie, 166 Misc 2d 446, 632 NYS2d 388 (NY Civ Ct, Kings Co 1995); citing, Church Home Assocs. v. Bostick, NYLJ Sept. 19, 1990 [Civ Ct, NY Co]). Furthermore, New York State law is also silent with regard to succession rights. As a result, case law has been inconsistent at best. See also Valley Dream Hous. Co., Inc. v. Schmidt, 16 Misc 3d 1138(A), 2007 WL 2684829 (Dist Ct, Nassau Co 2007) for an extensive discussion on succession rights.
The general trend has been to analyze each remaining family member's succession claims on a case- by- case factual basis. " ... [N]o one factor is completely determinative with regard to whether a relative may succeed to the rights of a Section 8 tenant when that tenant permanently vacated" (NSA North Flatbush Associates v. Mackie, 166 Misc 2d at 453). Rather, "[w]hat is dispositive is whether the respondent can make a showing, under the totality of the circumstances ... " that she is entitled to succeed to the tenancy (supra).
Factors that have been considered to determine succession rights are whether: the parties are living together as a family unit, the length of time the parties were living together, whether the individuals' income was factored into the annual certifications, and whether the family member was listed on the lease (supra).
The petitioner opposes the respondent's motion and cross moves for judicial [*4]authority to request and serve discovery demands upon respondent and to take the deposition of Olga Shklyar. The petitioner contends that without discovery it has no way of determining where the respondent has been residing. Moreover, the petitioner contends that the burden is on the one seeking succession rights to demonstrate compliance with the aforesaid regulations.
It is well settled that discovery is discouraged in summary proceedings so as not to impair the summary nature of the proceedings. However, it is equally well settled that where, as here, facts essential to the resolution of the case are exclusively within the knowledge of one party, the other party is entitled to pre-trial discovery.
As explained by the court in Cox v. J.D. Realty Associates, 217 AD2d 179:
The availability of discovery in a summary proceeding of this type has been recognized from the outset. Shortly after the Emergency Tenant Protection Act was amended to include non-primary residence as a basis for eviction (L 1974, *184 ch 576, §4, as amended by L 1983, ch 403, § 55), it was held that "a presumption in favor of disclosure" should be made (New York Univ. v Farkas, 121 Misc 2d 643, 647) as an exception to the general sentiment that "discovery is antithetical to the purposes of a summary proceeding" (65 Cen. Park W. v Greenwald, 127 Misc 2d 547, 551 [nonparty witness], citing Dubowsky v Goldsmith, 202 AD 818; CPLR 408). The availability of discovery in actions pursuant to the Real Property Actions and Proceedings Law is recognized by this Court (McQueen v Grinker, 158 AD2d 355, 359).
Discovery is particularly appropriate where the issue involves periods of co-residency and succession rights (see, 217 E. 82nd St. Co. v. Perko, 10 Misc 3d 146(A)).
The petitioner contends that the former tenants, Mr. and Mrs. Maksim Smokilo and Natalia Shkylar, surrendered possession of the premises by vacating on August 15, 2011 and thus this action was properly commenced against Olga Shklyar. The petitioner further contends that Olga Shklyar, has never resided with her daughter and son in law. In fact, the petitioner contends that Olga Shklyar is the tenant of record of apartment 1K. Thus, the basis for petitioner's discovery request is that Olga Shklyar is in the best position to prove where she has been legally residing since June of 2008.
To support this position, the petitioner submits the affidavit of Leonid Vakhovsky, the superintendent for the building 160 Middle Neck Road, the apartment building where the within premises are located. Mr. Vakhovsky, who has been the building superintendent since April of 1994, contends that Olga Shklyar moved into the building in December of 1999 and has been continuously living in apartment 1K. He further contends that he "witnessed the respondent moving her belongings out of apartment 1K and into apartment 2B" on August 18, 2011.
In the instant case, this Court is faced with conflicting affidavits and cannot make [*5]a summary determination as to whether or not the tenants of record surrendered possession of the premises and thus terminated their tenancy. The answer to this question will determine whether petitioner has standing to proceed directly against Olga Shklyar and maintain this proceeding.
Moreover, the respondent contends that she has succession rights in apartment 2B. Despite the submission of respondent's affidavit, the respondent has failed to provide a single document demonstrating any period of co-residency. Where petitioner is prepared to suffer the delay associated with discovery, a tenant should not be heard to complain (Rasch, New York Landlord and Tenant, 3rd Edition, §44:1).
Accordingly, it is
ORDERED, that the respondent's motion to dismiss this proceeding is denied in its entirety, and it is further
ORDERED, that the petitioner's cross motion is granted. Respondent shall appear and sit for a deposition at a date and time convenient to counsel, but not later than 30 days from the date of this order, and it is further
ORDERED, that the respondent shall provide, within 15 days from the date of this order, a full and complete response to the petitioner's demand for documentary discovery.
Accordingly, all parties and their counsel appear before this Court in the Landlord/Tenant part at 99 Main Street, Hempstead, New York, at 9:30 AM on
June 13, 2012.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:May 25, 2012
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