451 Marion LLC v Gonzalez
Annotate this CaseDecided on July 15, 2014
Civil Court of the City of New York, New York County
451 Marion LLC, Petitioner,
against
Victor Gonzalez, Respondent, "JOHN DOE," and/or JANE DOE," Respondents.
LT 252900/13
Counsel for Tenant
Brian Sullivan
MFY Legal Services, Inc.
299 Broadway, 4th Floor
New York, NY 10007
(212) 417-3713
bsullivan@mfy.org
Counsel for Landlord
Carlos Perez-Hall
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.
377 Broadway
New York, NY 10013
212-431-1300
Elise Brown
Deputy Director
MFY Legal Services, Inc.
299 Broadway, 4th Floor
New York, NY 10007
(212) 417-3753
ebrown@mfy.org
Kelly A. O'Neill Levy, J.
Petitioner commenced the instant residential holdover proceeding by service of a Notice of Termination alleging, inter alia, that Respondents Victor Gonzalez, "John Doe," and "Jane Doe" had entered and occupied in possession of the apartment without Petitioner's consent, that they are trespassers/squatters and/or unauthorized occupants, and that "to the extent you have been occupying the above premises, pursuant to a revocable License agreement with the undersigned Landlord's predecessor-in-interest, or in the event that you were the licensee of the prior tenant, or some other person, your license expired upon that person's death and/or vacature of the subject apartment and any license you might claim from the prior owner of the premises or current owner of the premises is hereby revoked." The Notice of Termination indicated that if the Respondents failed to vacate by November 30, 2013, the landlord would "commence summary proceedings or another appropriate action or proceeding to recover possession of the premises and to recover the fair value of use and occupancy thereof." This matter first appeared on the court's calendar on February 20, 2014.
On that date, the court adjourned the matter to March 27, 2014. On March 14, Respondent Victor Gonzalez, by counsel, filed the instant motion to dismiss made returnable on March 27. On the return date, the case was adjourned by two-attorney stipulation to April 28 for Petitioner to provide opposition to Respondent's motion by April 11 with reply in hand on return date if needed. Petitioner filed opposition on April 18 and Respondent filed reply on April 28.
Respondent moves for an order dismissing the matter pursuant to CPLR § 3211 arguing that (i) the notice of termination is fatally defective in that Respondent is a rent-stabilized tenant of the subject apartment while the Notice of Termination pleads that Respondent is a squatter, licencee, or a tenant-at-will/at sufferance; (ii) Petitioner pleads alternate and incompatible theories without sufficient factual allegations; and (iii) Petitioner has failed to name a necessary party.
Discussion
In deciding a motion to dismiss a complaint for failure to state a claim under CPLR 3211, the allegations of the complaint, and all reasonable inferences that may be drawn from those allegations, must be accepted as true and the complaint must be liberally construed in favor of the plaintiff. In addition, while a plaintiff may be required to supply evidentiary support for his claims in response to a motion for summary judgment under CPLR 3212, he is not obligated to do so in response to a pre-answer motion to dismiss under CPLR 3211. The criterion for decision on such a motion is whether the allegations of the complaint state a legally cognizable cause of action. The court's role is simply to determine whether the facts, as alleged, fit into any valid legal theory. In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims.
Salles v. Chase Manhattan Bank, 300 AD2d 226, 228 (1st Dep't 2002)(internal citations omitted). See also Bovino v. Village of Wappingers Falls, 215 AD2d 619, 620 (2d Dep't 1995)
Here Respondent argues that he is a rent-stabilized tenant whose tenancy cannot be terminated without cause and is not a squatter, licencee, or a tenant-at-will/at sufferance. Respondent alleges that he paid rent to Charles Epps, the prior owner, and states that he is a rent-stabilized tenant as a result of having resided in the subject Single Room Occupancy unit (SRO) for years. Respondent produces eight rent receipts from 2005 and 2006 in support. Petitioner alleges that Respondent has failed to prove the existence of a tenancy in that the rent receipts do not prove that he continuously resided in the subject premises with the permission of the former landlord.
Under the Rent Stabilization Code, a tenant is "an individual who ha[s] continuously resided in the same building as a principal residence for a period of at least six months." RSC § 2520.6(j). Respondent has provided an affidavit stating that he has continuously resided in Petitioner's building for the past ten years and what are alleged to be rent receipts from 2005 and 2006. Petitioner contests these facts, however.
Here, Petitioner asks that the court infer that Respondent has not lived continuously in the apartment for six months as a primary residence based on Respondent's inability to produce sufficient documentation to that effect. After having considered the proofs submitted by Respondent in support of his application and applying the CPLR § 3211 standard, the court [*2]makes no determination as to Respondent's status and declines to dismiss the petition on the grounds that he is a rent stabilized tenant.
Turning to Respondent's second argument, the court notes that pursuant to RPAPL § 741(2), every petition in a summary proceeding "shall state the respondent's interest in the premises and his relationship to petitioner with regard thereto." Respondent argues that Petitioner pleads alternate and incompatible theories of licensee and squatter without sufficient factual allegations. There is no brightline rule on whether pleading of squatter and licensee grounds requires dismissal and a review of relevant caselaw indicates that courts undertake a fact-specific analysis in considering the issue. See City of NY v. Bullock, 159 Misc 2d 716, 606 N.Y.S.2d 552 (Civ. Ct. Kings Cty. 1993), aff'd. 164 Misc 2d 1052 [App. Term, 2d Dep't 1995]. .
If Petitioner pleads in the alternative, Respondent is entitled to know the reason for Petitioner's lack of knowledge inhibiting him from pleading with particularity. Bullock, 159 Misc 2d 716, 719 ("[H]aving no reasonable, rational basis for not knowing respondent's status it is impermissible to allege the alternative grounds of squatter / licensee."). Petitioner's affirmation in opposition makes clear that the Notice is covering all bases precisely because Petitioner did not know what Respondent's status was. The court in Bullock put special emphasis on the fact that the petitioner there was the owner when the Respondent took occupancy and thus was "charged with knowing respondent's status." Here, a deed produced by Petitioner evidences that Petitioner purchased the subject premises in 2013, long after Respondent allegedly took occupancy and thus possesses no such charge. However, Respondent effectively argues that Petitioner has a legal obligation to explain why he does not know in the Notice itself. Respondent cites Bullock:
For even if petitioner is permitted to plead in the alternative, this does not excuse Petitioner from the particularization requirements necessitated in an eviction proceeding. In order to satisfy the requirement of stating the facts upon which the proceeding is based, an essential allegation in the notice where alternative pleading is permitted must be an explanation as to why the petitioner does not know respondent's status. Bullock, 164 Misc 2d at 1052.
The court in Bullock puts special emphasis on this requirement, noting that it would be an appropriate ground for dismissal "[e]ven had the respondent taken possession prior to petitioner taking title to the premises." Id. Petitioner is bound by this requirement and, after reviewing the Notice of Termination, it is clear that Petitioner here did not explain why it does not know Respondent's status. As such, Petitioner has failed to satisfy the requirement of stating the facts upon which the proceeding is based and the Notice of Termination is vitiated.
"Inasmuch as a valid predicate notice is a condition predicate to a summary holdover proceeding (see Chinatown Apts. v. Chu Cho Lam, 412 N.E.2d 1312 [1980]) and predicate notices are not amendable (see City of Buffalo Urban Renewal Agency v. Lane Bryant Queens, [*3]90 AD2d 976 [1982], aff'd. 451 N.E.2d 501 [1983]), the petition must be dismissed." Henry & Baltic Assoc. v. K & A Food Corp., 7 Misc 3d 83 (App. Term, 2d & 11th Jud. Dists. 2005) (citations omitted).
Accordingly, the matter is dismissed without prejudice. If Petitioner wishes to pursue a holdover action against Respondent, it may do so once proper predicate notices have been served. The court will not reach Respondent's remaining argument.
This constitutes the Decision and Order of the court. The Clerk is to mail a copy to both sides.
Dated: July 15, 2014__________________________________
New York, New YorkHon. Kelly O'Neill Levy, A.S.C.J.
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