Guira v Audthan LLC

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[*1] Guira v Audthan LLC 2015 NY Slip Op 51152(U) Decided on August 7, 2015 Civil Court Of The City Of New York, New York 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2015
Civil Court of the City of New York, New York County

Hamidou Guira, Petitioner

against

Audthan LLC and Skybox Chelsea LLC s/h/a Chelsea Highline Hotel and Carlos Rosario, Respondents



L & T 72264/15



MITOFSKY SHAPIRO NEVILLE & HAZEN, LLP

Attorneys for Respondents

By: TERRY L HAZEN, ESQ

152 Madison Avenue, 3rd Floor

New York, NY 10016

212.736.0500

HAMIDOU GUIRA

Petitioner Pro Se

184 11th Avenue, Room 301

New York, New York 10011
Sabrina B. Kraus, J.

BACKGROUND

This summary proceeding was commenced by HAMIDOU GUIRA(Petitioner) against CHELSEA HIGHLINE HOTEL and CARLOS ROSARIO seeking to be restored to possession of Room 301 at 184 11th Avenue, New York, NY 10011 (Subject Premises). Counsel for respondents has appeared and asserted that CHELSEA HIGHLINE HOTEL was improperly named herein, and that the appropriate respondents are AUDTHAN LLC, the net lessee of the subject building, and SKYBOX CHELSEA LLC, the managing member of Audthan LLC. Carlos Rosario is the manager of the hotel. The court shall deem the caption amended to list respondents as Audthan and Skybox Chelsea LLC s/h/a Chelsea Highline Hotel and Carlos Rosario(collectively "Respondents).

Petitioner commenced this proceeding by order to show cause returnable August 3, 2015. It was adjourned to August 4 for a hearing, as the papers seemed to raise contested issues of fact. On August 4, Petitioner requested a French Interpreter for the purposes of the hearing, and the hearing was adjourned to August 6 for the interpreter. On August 6th the hearing took place, and [*2]the court reserved decision.



FINDINGS OF FACT

The underlying facts are largely uncontested. Petitioner made a reservation for the Subject Premises on July 29, 2015. Petitioner checked in on July 30, 2015 and paid for the room. On that date he submitted a written request to become the permanent tenant of the Subject Premises by requesting a six month lease. A copy of the letter is annexed to the moving papers, and as exhibit 9, to the supplemental affidavit in support, submitted during the hearing on August 6.

On July 30, Petitioner also made an online booking for a fourteen day stay commencing July 31. Petitioner intended this to be a request to extend the stay in the Subject Premises.

Petitioner did not sleep in the Subject Premises on the night of July 30. Petitioner stated this is because he works as a taxi cab driver and works at night. Petitioner returned to the hotel at approximately 10:30 am, on July 31, and was told by Danielle, an agent of Respondents, that the manager had instructed them not to allow Petitioner to become a permanent tenant, to demand that Petitioner return the key to the Subject Premises. Petitioner was not permitted entry to the Subject Premises, was turned away and told to leave.

Respondents forcefully prevented Petitioner from returning to the Subject Premises, removed his belongings from the Subject Premises and placed them in storage in the building and disabled the key that Petitioner had been given to the Subject Premises.

Petitioner then came to court on July 31, 2015 to commence this proceeding.

Respondents have a policy of not renting rooms to anyone who lives in New York City, or who has a New York City address. Petitioner was aware of this policy and therefore did not provide Respondents with his last address of record when he checked in.

Carlos Rosario testified for Respondents. Rosario testified primarily regarding the second reservation made by Petitioner. Respondents attempt to focus on this second reservation as justification for the unlawful eviction. The court is not persuaded. Additionally, to the extent that Rosario's testimony differed from that of Petitioner, and Joseph Stevens, the court credits the testimony of Stevens and Petitioner over Rosario.

DISCUSSION

The Subject Premises is governed by Rent Stabilization. Certified copies of the DHCR registration for the Subject Premises (Ex 1 at the hearing and Ex 7 to the supplemental affidavit in support) indicate that the Subject Premises has been registered with DHCR from 1984 through 2015. In 1984 and 1985, it was registered as rent stabilized. The Subject Premises was registered as exempt, based on the allegation it was a coop or condo, from 1986 through 1990. It was registered as temporarily exempt based on "SRO/Transient" occupancy from 1991 through 1993, although the registrations for 1991 and 1992 had been amended to provide for same. In 2013, Frank Leon was registered as the tenant of record at a legal rent of $226.90 and in 2014 and 2015, the Subject Premises was again registered as temporarily exempt, based on SRO status and transient occupancy.

Respondents do not contest the regulatory status of the Subject Premises.

9 NYCRR § 2520.6 (j) provides:

Permanent Tenant. For housing accommodations located in hotels ... a hotel occupant who requests a lease of six months or more pursuant to section 2522(a)(2) of this Title, or who is in occupancy pursuant to a lease of six months or more shall be a permanent tenant even if actual occupancy is less than six months. Unless otherwise specified, [*3]reference in this Code to "tenant" shall include permanent tenant with respect to hotels.

§ 2522.5(a)(2) of the Rent Stabilization Code provides:

For housing accommodations in hotels rented to an occupant who has never had a lease, such occupant may at any time during his or her occupancy request a lease and the owner must, within 15 days after such request, grant a lease commencing on the date such request was made at a rent which does not exceed the legal regulated rent, for a term of at least six months. The hotel occupant who requests such a lease becomes a permanent tenant but the lease need not be renewed. Notwithstanding the above, an owner shall not refuse to grant a lease or to extend or continue a tenancy in order to prevent the hotel occupant from becoming a permanent tenant, except to the extent that the owner may be permitted to do so by law pursuant to a warrant of eviction, or other order of a court of competent jurisdiction, or governmental vacate order.

§ 2522.5(c)(2) provides:

For housing accommodations in hotels, each owner shall furnish to each person, at the time of registration, a Notice of Rights in a form promulgated or approved by the DHCR, describing the rights and duties of hotel owners, occupants and tenants as provided for under the RSL and this code and a hotel occupant's right to become a permanent tenant at a legal regulated rent by requesting a lease for a term of at least six months at anytime during his or her occupancy. .... An owner who violates the RSL and this code by failing to furnish this Notice of Rights, and/or by engaging in any conduct which compels a person to rent as a hotel occupant, prevents a hotel occupant from becoming a permanent tenant, or results in a hotel occupant vacating a housing accommodation, shall be subject to a loss of a guidelines adjustment pursuant to paragraph (3) of this subdivision as well as penalties pursuant to section 2526.2(b) and (c)(1) of this Title, and may be subject to a penalty pursuant to section 2526.2(c)(2) of this Title, in an amount no less than $1,000.

DHCR Fact Sheet No. 42 provides that SRO's constructed prior to 1969 and



containing six or more housing accommodations are subject to Rent Stabilization. The court takes judicial notice that DOB records show that the Subject Premises is an SRO and the original Certificate of Occupancy shows that the building was completed October 1, 1952, although a later Certificate of Occupancy lists a completion date of April 1, 1965 (documents annexed hereto and incorporated herein).

Nutter v W & J Hotel Company (171 Misc 2d 302) is a case directly on point. In that proceeding the court defined the issue stating "(t)his illegal eviction proceeding presents the issue of whether a landlord may evict, without process of law, a person who registers for a rent-stabilized hotel room for one night and promptly requests a lease pursuant to the hotel stabilization provisions of the Rent Stabilization Law... The Court concludes that respondent may not, and therefore committed an illegal eviction (id at 303)."

In Nutter, the petitioner checked in, was not provided with the notice of rights as required by rent stabilization, requested in writing the same day a written lease and the following day was denied the request and asked to leave. The only difference is in that case the tenant did not [*4]leave at the insistence of the manager and was instead removed by the police.

" .... (T)he request for a lease, evincing an intent to accede to tenancy status, is what triggers the protection of the rent stabilization laws (Nutter at 305 citing 459 West 43rd Street Corp v DHCR 152 Ad2d 511)."

Respondents seem to imply that because they told Petitioner to leave and that they were not going to accept his request for being a permanent tenant, and he came to court rather than fight with them, that the eviction was not unlawful.

§26-521 of the New York City Administrative Code provides in pertinent part:

Unlawful Eviction. A. It shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who .... has made a request for a lease for such dwelling unit pursuant to the hotel stabilization provisions of the rent stabilization law except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order by .... engaging or threatening to engage in any ... conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling or to induce the occupant to vacate the dwelling unit including, but not limited to, removing the occupants possessions from the dwelling unit ...".

Here, when Petitioner came back on July 31, he was not permitted access to the Subject Premises by Respondents, he was told that Respondents were not going to comply with their legal obligation to provide him with a lease, he was told to leave, his key was diabled and his possessions were removed from the Subject Premises.

All of Respondents actions appears to be geared to evading their obligations under the Rent Stabilization Code. For example, Respondents have two "policies" they have put into place to prevent individuals from becoming permanent tenants and limiting occupancy to transients.

The first is that they tell all individuals that the maximum permissible stay is 14 days (Ex 22 to affidavit in support). So not only do Respondents not provided individuals checking in with the required notice pursuant to § 2522.5(c)(2), but in fact they do the opposite by informing registrants that any occupancy will be limited to 14 days.

Second, Respondents will not allow New York residents to register for a room (Ex 22). Their written policy provides:

"All Jazz Hostels are intended for transient tourists. Therefore, we cannot accommodate local or nearby residents at our hostels. In New York, residents of New York State cannot stay with us (Ex 22)."

Thus even to stay for one night, Petitioner, like the petitioner in Nutter (id at 303) was required to falsely claim he was an out of state resident in order to register.

CONCLUSION

Based on the foregoing, the court finds that Petitioner is the permanent tenant of the Subject Premises and was unlawfully evicted by Respondents. Respondents are directed to restore Petitioner and his possessions to the Subject Premises forthwith.



This constitutes the decision and order of the Court.

Dated: New York, New York

August 7, 2015

__________________



Sabrina B. Kraus, JHC