Small v Fang

[*1] Small v Fang 2015 NY Slip Op 51840(U) Decided on November 30, 2015 Civil Court Of The City Of New York, New York County Stoller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2015
Civil Court of the City of New York, New York County

Larry M. Small, as Trustee for the Arie Genger 1995 Life Insurance Trust, Petitioner/Landlord,

against

Seymour H. Fang, Respondents/Tenants.



73087/2015
Jack Stoller, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of these motions.

PapersNumbered

Notice of Motion and Supplemental Affidavits and Affirmation Annexed 1, 2, 3, 4

Notice of Cross-Motion and Supplemental Affidavit and Affirmation Annexed 5, 6, 7

Affirmation and Affidavits In Opposition to the Cross-Motionand in Reply 8, 9, 10

Reply Affirmation and Affidavit In Support of Motion 11

Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:

Larry M. Small, as Trustee for the Arie Genger 1995 Life Insurance Trust, the petitioner in this proceeding ("Petitioner"),[FN1] commenced this holdover proceeding against Seymour H. Fang, the respondent in this proceeding ("Respondent"), seeking possession of 225 West 83rd Street, Apt. 15Z, New York, New York ("the subject premises") on the grounds of termination of Respondent's tenancy therein by thirty days' notice pursuant to RPL §232-a and that the subject premises is not subject to any rent regulation by virtue of it being a condominium unit. Respondent interposed an answer ("the Answer") asserting various defenses. Respondent now moves to dismiss on various grounds. Petitioner cross-moves for summary judgment in its favor. The Court consolidates both motions for resolution herein.

There is no dispute of material fact that Petitioner is a trust established for the benefit of, inter alia, Sagi Genger, who also happens to be Respondent's son-in-law ("Respondent's son-in-law"); that the subject premises is a condominium unit;[FN2] that Respondent's son-in-law purchased the subject premises on or about the end of 2003; and that Respondent took possession of the subject premises at around that time or in early 2004. There is no dispute of material fact that a Court found, in litigation between Petitioner and Respondent's son-in-law ("the Supreme Court litigation")[FN3] that Respondent's son-in-law defaulted on a loan secured by the subject premises; that Petitioner loaned Respondent's son-in-law money to assist with the default; that, as a part of this arrangement, Petitioner obtained title to the subject premises;[FN4] that Petitioner caused a notice of termination ("the Notice") to be served upon Respondent advising Respondent that Petitioner elected to terminate Respondent's tenancy on thirty days' notice more than thirty days prior to February 28, 2015, the date the Notice purported to terminate Respondent's tenancy; and that Petitioner commenced this proceeding afterward. The record on this motion practice therefore demonstrates that Petitioner has proven its entitlement to summary judgment on its prima facie case. The Court thus considers Respondent's defenses and causes to dismiss, both raised in his motion to dismiss and in the Answer.

Respondent argues that he was not served with a true copy of the notice of petition and petition because the copy Petitioner caused to be served upon him did not have a stamp of the clerk of the Court, citing 225 5th LLC v. Fiori Fiori Inc., N.Y.L.J. Feb. 16, 2005 at 22:3 (Civ. Ct. NY Co.) in support of his position. Other authority stands for the opposite proposition, that the absence of a stamp of the clerk on the Court on the service copy does not amount to a defect requiring dismissal. Strong L.P. v. Dakar Rest., Inc., 28 Misc 3d 1213(A) (Civ. Ct. Kings Co. 2010), Kismet Mgt. Corp. v. Great Neck Retail Supply Corp., 27 Misc 3d 1203(A) (Dist. Ct. Nassau Co. 2010), 239 S. 1st St. LLC v. Ribot, 16 Misc 3d 1101(A) (Civ. Ct. Kings Co. 2007), First Ave. Owners Corp. v. Riverwalk Garage Corp., 6 Misc 3d 439, 444 (Civ. Ct. NY Co. 2004), Doughty Assocs. v. Urban, 2003 NY Misc. LEXIS 1251 (Dist. Ct. Nassau Co. 2003). Reconciling this conflicting authority requires an examination into the particular facts herein.

The Court in 225 5th LLC, supra, N.Y.L.J. Feb. 16, 2005 at 22:3, found that the service of a copy of the pleading without the stamp of the clerk and with the handwritten index number to be defective because it did not provide notice to the recipient that the pleading was properly issued. There is no dispute on the record in this motion that the instant proceeding is the fourth holdover proceeding commenced against Respondent seeking possession of the subject premises, nor that Respondent has been an attorney for more than fifty years. Respondent avers in support [*2]of his motion that the notice of petition he was served with "bears no actual indication that the notice of petition was issued by the Clerk of the Court or any confirmation that the proceeding was in fact commenced." Parsing this language reveals that Respondent does not allege that he did not recognize what the notice of petition and petition was, nor that he did not know how to respond appropriately to the notice of petition and petition, which is consistent with Respondent's professional experience and with Petitioner's commencement of three prior holdover proceedings against Respondent. Accordingly, the Court does not reach the question of which strand of authority on this point is more persuasive. Rather, the Court finds that the facts herein render this proceeding to be more similar to the authority that finds that such defects do not warrant dismissal. See 239 S. 1st St. LLC, supra, 16 Misc 3d at 1101(A)(finding that the service copy of the notice of petition with a handwritten index number and no clerk's stamp was not defective, in part because the respondent therein did "not claim that the [n]otice of [p]etition ... was illegible or unintelligible so that he could not ascertain the nature of this proceeding or what was required of him in order to appear and/or answer"). Accordingly, the Court denies Respondent's motion to dismiss this proceeding on this ground and grants Petitioner's motion to dismiss the First Jurisdictional Defense asserted in the Answer.

The Notice informed Respondent that Petitioner purported to terminate his tenancy as of February 28, 2015. The Notice also informed Respondent that the Notice was without prejudice to Petitioner's position in a then-extant holdover proceeding Petitioner had commenced against Respondent ("the prior proceeding").[FN5] Respondent argues that this reservation of Petitioner's rights fatally rendered the notice ambiguous.

The standard upon which the Court evaluates a predicate notice in a holdover proceeding is whether the notice is reasonable under the circumstances. Hughes v. Lenox Hill Hospital, 226 AD2d 4, 17 (1st Dept. 1996), appeal dismissed, 90 NY2d 829 (1997). A plain reading of the Notice as such reveals no ambiguity. Petitioner wanted Respondent out of the subject premises and has been intending to evict Respondent if Respondent did not voluntarily move, whether in the prior proceeding or in the instant matter. The function of a predicate notice is twofold: to end a tenant's estate and inform him or her of the consequence associated with not vacating. Raffone v. Schreiber, 18 Misc 3d 925, 927 (Civ. Ct. NY Co. 2008). See Park Summit Realty Corp. v. Frank, 107 Misc 2d 318, 321 (App. Term 1st Dept. 1980), aff'd, 84 AD2d 700 (1st Dept. 1981), aff'd, 56 NY2d 1025 (1982) (a termination notice pursuant to RPL §232-a must only inform a tenant that a landlord elects to terminate the tenancy and that refusal to vacate will lead to summary proceedings). Nothing in the Notice detracts from this limited purpose of a termination notice pursuant to RPL §232-a. There is no reading of the Notice that could make a reasonable reader believe that circumstances exist according to which Petitioner would countenance Respondent's continued tenancy, and thus no ambiguity. Accordingly, the Court denies Respondent's motion to dismiss on this ground and grants Petitioner's motion to dismiss the Third Affirmative Defense of the Answer.

Such reasoning informs the Court regarding Respondent's motion to dismiss on the ground that the Notice was stale by the time Petitioner commenced this proceeding. Petitioner [*3]commenced this proceeding on August 7, 2015, five months and ten days after February 28, 2015, the termination date set forth in the Notice, a lapse of time that Respondent argues renders the Notice as stale. While Respondent cites authority in support of a proposition that a predicate notice to a summary proceeding can go stale at some point, Respondent never cites to any authority that stands for the proposition that five months is a long enough time to render a predicate notice stale.

Furthermore, there is no dispute in the record that the Court did not dispose of the prior proceeding until an order dated June 11, 2015 that dismissed the proceeding without prejudice on the basis of lack of personal jurisdiction. Petitioner commenced this proceeding less than two months after that dismissal. As the purpose of the Notice is to inform Respondent that Petitioner intends to seek his eviction through Court process if Respondent does not voluntarily vacate, Park Summit Realty Corp., supra, 107 Misc 2d at 321; Raffone, supra, 18 Misc 3d at 927, Petitioner's continued prosecution of the prior proceeding after the termination date on the Notice and the commencement of this proceeding also gives Respondent notice that Petitioner seeks his eviction. Petitioner's course of action has not conferred any actionable repose upon Respondent. Compare 14 Morningside Ave HDFC v. Murray, N.Y.L.J. April 23, 2002 at 18:1 (App. Term 1st Dept.), R.M.H. Estates v. Hampshire, 13 Misc 3d 1222(A) (Civ. Ct. NY Co.) (a cause of action sounding in nonpayment of rent is not barred as stale when litigation between the parties ensued in the interim that had the effect of giving tenants notice of a landlord's intention to pursue its cause of action against them). Accordingly, the Court denies Respondent's motion to dismiss on this ground and grants Petitioner's motion to dismiss the First Affirmative Defense of the Answer.

Respondent argues that judicial estoppel precludes Petitioner from maintaining a holdover cause of action against Respondent. In order for Respondent to prevail on this defense, Respondent must prove that Petitioner assumed a certain position in the Supreme Court litigation, succeeded in maintaining that position, and that this position is inconsistent with Petitioner's position herein. Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 177 (1st Dept.), appeal dismissed, 92 NY2d 962 (1998). Respondent argues that Petitioner took the position, and prevailed, in the Supreme Court litigation that Respondent had the right to occupy the subject premises until there are insurance proceeds, i.e., until Respondent's son-in-law's parents died. Respondent argues that Petitioner assumed this position because it relied upon an internal memorandum drafted by Petitioner's attorney ("the memorandum") that stated, inter alia:

[Petitioner] ... used [$1,400,000] to secure a $2,000,000 loan to [Respondent's son-in-law] ... [t]he [$1,400,000] was obtained by [Petitioner] borrowing the cash surrender value of life insurance policies owned by [Petitioner]. [A] beneficiar[y] of [Petitioner is Respondent's son-in-law]. [Respondent] is living at [the subject premises]. In connection with the foregoing, [Respondent's son-in-law and his wife] will execute an acknowledgment that [Petitioner] is the beneficial owner of the [subject premises] ... [a]t some point in the future, when there are insurance proceeds, there will be a need to even things up between [Respondent's son-in-law] and [Respondent's son-in-law's sister, the other beneficiary of the trust].

As this language does not confer upon Respondent use and enjoyment of the subject premises for the duration of his natural life, it does not create a life estate for him. Cf. In re Hinman's Will, 22 Misc 2d 655, 657 (Sur. Ct. Kings Co. 1960). Nevetheless, Respondent argues that the memorandum manifests Petitioner's intention to create something tantamount to a tenancy subject to a condition subsequent, the condition being the issuance of life insurance proceeds. See Maia v. Castro, 139 Misc 2d 312, 315 (Dist. Ct. Nassau Co. 1988) (if a clause in the lease provides that the lease shall terminate upon the occurrence of an event, only at the option of the landlord, then the lease has a condition subsequent).

However, the memorandum does not expressly confer upon Respondent a right of occupancy to the subject premises subject to issuance of life insurance proceeds. Construction of language to create a condition subsequent is not favored, Trustees of Calvary Presbyterian Church v. Putnam, 249 NY 111, 115 (1928), and thus requires a clear expression. Lipton v. Bruce, 1 NY2d 631, 637 (1956), Stratis v. Doyle, 176 AD2d 1096, 1098 (3rd Dept. 1991), De Bevoise v. Adler, 147 A.D. 526, 528 (2nd Dept. 1911). Not only does the language of the memorandum fail to clearly express the creation of Respondent's contingent right of occupancy of the subject premises, the top of the memorandum contains a notation that says, in all capital letters, "CONFIDENTIAL AND PRIVILEGED ATTORNEY WORK PRODUCT", begging the obvious question of how "express" an ostensible bargain between Petitioner and Respondent's son-in-law could possibly be if its only evidence is a confidential internal communication of only one of the parties to the bargain.

The only way that Respondent can argue that the memorandum evinces an intention to confer a contingent right of occupancy upon him is by interpreting the phrase "[i]n connection with the foregoing" to mean the reference to Respondent's occupancy, as opposed to the other statements that preceded this clause, such as Petitioner's procurement of funds to assist Respondent's son-in-law. Respondent also relies upon his interpretation of the phrase "[a]t some point in the future, when there are insurance proceeds" to state the condition subsequent that could terminate Respondent's occupancy, even though the memorandum states that, at that point, there would be a need to even things up between Respondent's son-in-law and Respondent's son-in-law's sister. Language that is susceptible to any other reasonable interpretation does not create a condition subsequent. Van De Bogert v. Reformed Dutch Church, 219 A.D. 220, 225 (2nd Dept. 1927). Not only is the language of the memorandum susceptible to reasonable interpretations other than creation of a condition subsequent to Respondent's benefit, it is subject to other interpretations much more natural and plausible than Respondent's interpretations. See Also Lui v. Park Ridge at Terryville Ass'n, 196 AD2d 579, 582 (2nd Dept. 1993) (if drafters of an agreement intend to make it contingent upon some eventuality, they have to expressly do so). Accordingly, the Court does not find that Petitioner's submission of the memorandum in the Supreme Court litigation meant that Petitioner assumed the position therein that it had bargained to give Respondent the right to occupy the subject premises until Respondent's son-in-law's parents died.

Moreover, Supreme Court, in granting Petitioner's motion to an extent and denying Respondent's son-in-law's motion, referred to the memorandum, but found that it pre-dated an instrument that Respondent's son-in-law and Respondent's daughter executed that acknowledged that Petitioner held title to the subject premises. The Court dismissed a challenge that [*4]Respondent's son-in-law raised to the instrument, finding that Respondent's son-in-law did not meet his burden of proving that he did not execute an instrument for which there is an acknowledgment of his signature. Supreme Court also found that Respondent's son-in-law did not own the subject premises as a distribution from Petitioner. Even assuming arguendo that Petitioner assumed the position that it should prevail in the Supreme Court litigation in part because it entered into an agreement to confer a contingent occupancy upon Respondent, the Court did not adopt that position in rendering its determination. Assuming a position in prior litigation only judicially estops a party when the party secures a judgment in its favor by assuming a particular position. Pierre v. Mary Manning Walsh Nursing Home Co., Inc., 93 AD3d 541, 542 (1st Dept. 2012). Accordingly, the Court denies Respondent's motion to dismiss on the ground of judicial estoppel and grants Petitioner's motion to strike the Eighth and Ninth Affirmative Defenses in the Answer.

Respondent also moves to dismiss on the ground that Petitioner attempted to obtain possession of the subject premises as against him in the Supreme Court litigation but did not prevail, thus collaterally estopping Petitioner from the relief it seeks in this proceeding. The only evidence Respondent shows that Petitioner raised the issue in the proceeding was an affirmation in reply dated September 30, 2011 that mentioned Respondent's occupancy as one of the issues that had to be resolved. An order of the Court dated October 3, 2011 did not address the issue, and instead ordered Respondent's son-in-law to deliver unencumbered deeds to Petitioner and to reimburse Petitioner for recording expenses.

The doctrine of collateral estoppel prevents a party from relitigating an identical issue decided against that party in a prior adjudication, ABN AMRO Bank, N.V. v. MBIA Inc., 17 NY3d 208, 226 (2011), which applies to issues that were actually litigated, squarely addressed and specifically decided. Liddle, Robinson & Shoemaker v. Shoemaker, 309 AD2d 688, 691 (1st Dept. 2003). As Respondent has not shown on its motion that the Supreme Court litigation resulted in an order that specifically decided the issue of his occupancy, the Supreme Court litigation does not collaterally estop Petitioner from the relief it seeks in this matter. See Lukoswky v. Shalit, 110 AD2d 563, 567 (1st Dept. 1985) (the criteria to establish collateral estoppel was not shown when the Court in the prior litigation made no mention of the issue and the issue was not necessary to resolve the prior litigation).

Respondent also moves to dismiss on the ground that the Supreme Court litigation bars Petitioner's cause of action herein by operation of res judicata. Respondent asserts that, even if the Court did not adjudicate Petitioner's cause of action sounding in possession against Respondent therein, the Court could have, and therefore, as per New York's transactional approach to res judicata, Petitioner's cause of action is barred on this matter. See In re Hunter, 4 NY3d 260, 269 (2005), PJA Assoc. v. India House, Inc., 99 AD3d 623, 624 (1st Dept. 2012) (res judicata applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation).

However, Respondent was not a party in the Supreme Court litigation. One "linchpin" of res judicata is an identity of parties actually litigating successive actions against each other. City of New York v. Welsbach Elec. Corp., 9 NY3d 124, 127 (2007). "The doctrine applies only when a claim between the parties has been previously brought to a final conclusion." Id. (emphasis in original). Respondent asserts that there is an identity of parties on the basis that he [*5]has been in privity with Respondent's son-in-law, citing as support for this proposition allegations in the affirmation of Petitioner's counsel linking Respondent and Respondent's son-in-law.

To the extent that both collateral estoppel and res judicata require identity of parties, legal authority analyzing the application of privity to collateral estoppel is instructive. In this context, privity does not have a single well-defined meaning, but is an amorphous concept, encompassing successors, those who control an action, those whose interests are represented by a party to the action, and co-parties to a prior action. Buechel v. Bain, 97 NY2d 295, 304 (2001). Doubts should be resolved against imposing preclusion. Id. at 305. Respondent neither demonstrates that he is Respondent's son-in-law's successor, nor that he controlled any aspect of the Supreme Court litigation, nor that he was a co-party with Respondent's son-in-law in a prior action.

Respondent could potentially establish privity with Respondent's son-in-law for purposes of res judicata if Respondent's interests "can be said to have been represented in the prior proceeding." Green v. Santa Fe Industries, Inc., 70 NY2d 244, 253 (1987). However aligned Respondent's interests may be with Respondent's son-in-law, Respondent's assertion that Respondent's son-in-law effectively appeared on Respondent's behalf in the Supreme Court litigation places Respondent in the awkward position of arguing that Petitioner theoretically could have obtained a judgment of possession against him even though he was not a party to that action. This position contradicts basic tenets of landlord/tenant law. See 170 West 85th Street Tenants Assn. v. Cruz, 173 AD2d 338, 339-340 (1st Dept. 1991) (due process requires that, for the warrant to be effective against an occupant, he or she be made a party to the proceeding), M & M Crown Realty LLC v. Griffith, 32 Misc 3d 1227(A) (Civ. Ct. Kings Co. 2011) (all persons with rights of possession to a premises are necessary parties who must be named in the petition as respondents and served). Accordingly, the Court finds that Respondent was not in privity with Respondent's son-in-law in the Supreme Court litigation such that res judicata would bar Petitioner's cause of action sounding in possession against him.

Moreover, Petitioner was the defendant in the Supreme Court litigation, not the plaintiff. To the extent that Respondent argues that Petitioner could have sought possession of the subject premises in the Supreme Court litigation against Respondent's son-in-law (as a party in putative privity with Respondent), Petitioner could have only done so by a counterclaim. As counterclaims in New York are permissive, where a defendant may interpose a cause of action as a counterclaim but fails to do so, res judicata does not prevent that same party from subsequently suing on that cause of action. Wells Fargo Bank NA v. Podeswik, 115 AD3d 207, 216 (4th Dept. 2014), Classic Autos. v. Oxford Resources Corp., 204 AD2d 209, 209-210 (1st Dept. 1994), Pace v. Perk, 81 AD2d 444, 460 (2nd Dept. 1981). Accordingly, the Court denies Respondent's motion to dismiss this proceeding on the basis of res judicata and grants Petitioner's motion to dismiss the Seventh Affirmative Defense of the Answer.

As noted above, Petitioner has demonstrated an entitlement to summary judgment on its cause of action for possession against Respondent. The burden thus shifts to Respondent to produce evidence in admissible form to demonstrate the existence of a disputed material issue of fact sufficient to require a trial. SRM Card Shop, Inc. v. 1740 Broadway Assocs., L.P., 2 AD3d 136, 139-140 (1st Dept. 2003). In opposition to Petitioner's summary judgment motion, [*6]Respondent argues that Petitioner may not pursue its cause of action because Petitioner requires two trustees and that only one has been appointed. However, as Respondent is not a beneficiary of the trust that is Petitioner, Respondent lacks the standing to challenge the actions of the trustee as such. In re Estate of McManus, 47 NY2d 717, 719 (1979), Naversen v. Gaillard, 38 AD3d 509 (2nd Dept. 2007). Accordingly, Respondent does not raise an issue of material fact concerning that element of Petitioner's prima facie case that Petitioner is the proper party to commence this proceeding pursuant to RPAPL §721.

In opposition to Petitioner's summary judgment motion, Respondent argues that Petitioner has not proven that the subject premises is not subject to rent regulation. As noted above, there is no dispute that the subject premises is a condominium unit. The Rent Stabilization Code exempts from coverage housing accommodations contained in buildings owned or operated as condominiums on or before June 30, 1974, or owned or operated as condominiums after that date as is provided in GBL §352-eeee. 9 N.Y.C.R.R. §2520.11(l).

Respondent argues that it is possible that a condominium unit may still be subject to the Rent Stabilization Law. However, Respondent's opposition is very specific in declining to take a position as to the rent regulatory status of the subject premises. Acts appearing in a summary judgment motion which the opposing party does not controvert may be deemed to be admitted. Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 543-544 (1975), Madeline D'Anthony Enters., Inc. v. Sokolowsky, 101 AD3d 606, 609 (1st Dept. 2012). As Respondent does not dispute Petitioner's averment in support of his summary judgment cross-motion that the subject premises is not covered by the Rent Stabilization Law because it is a condominium unit, the Court may therefore deem Respondent's silence as such to concede this point.

Even assuming arguendo that Respondent did not concede the point, however, there is no dispute on the record that Respondent entered the subject premises as an invitee of Respondent's son-in-law, who purchased the subject premises. Accordingly, Respondent is not a "non-purchasing tenant" as defined by GBL §352-eeee(1)(e) and not protected by rent regulation. GBL §352-eeee(2)(c)(iii). The subject premises is therefore not covered by the Rent Stabilization Law. 9 N.Y.C.R.R. §2520.11(l). Assuming arguendo that the subject premises was once covered by the Rent Stabilization Law, Respondent's son-in-law could not have legally purchased the subject premises unless an offering plan had been filed with the New York State Attorney General's Office. East Midtown Plaza Hous. Co. Inc. v. Cuomo, 20 NY3d 161, 169 (2012), Board of Mgrs. Of 14 Hope St. Condominium v. Hope St. Partners LLC, 40 Misc 3d 1215(A) (S. Ct. Kings Co. 2013). As Respondent's son-in-law's purchase of the subject premises in 2003 compels the conclusion that an offering plan, if any, had already been filed, then the rental to Respondent post-dated the plan, and the subject premises is therefore not subject to the Rent Stabilization Law. 9 N.Y.C.R.R. §2522.5(h)(5). Accordingly, Respondent does not raise an issue of material fact with regard to that element of Petitioner's prima facie case regarding the rent regulatory status of the subject premises.

In opposition to Petitioner's summary judgment motion, Respondent takes issue with Petitioner's proof of compliance with MDL §325. However, Petitioner owns the subject premises, a condominium unit in a building, not the building itself. As Petitioner is not the owner of the building, Petitioner is not required to plead compliance with MDL §325. Eng v. Roth, N.Y.L.J. Feb. 8, 1982 at 6:1 (App. Term 1st Dept.), Dworkin v. Duncan, 116 Misc 2d 853, [*7]856 (Civ. Ct. NY Co. 1982). See Also 152 W. Realty, LLC v. N & G Luggages, Inc., 15 Misc 3d 1121A (Civ. Ct. NY Co. 2007) (the requirement that the petition state the multiple dwelling registration status of the subject premises is intended to foster compliance with HPD filing requirements). Accordingly, Respondent does not raise an issue of material fact regarding Petitioner's entitlement to summary judgment for anything relating to a multiple dwelling registration.

In opposition to Petitioner's summary judgment motion, Respondent asserts that Respondent's son-in-law permitted Respondent to occupy the subject premises on the basis of a life estate that binds Petitioner. Specifically, Respondent avers in opposition to that he "entered into a tenancy agreement with [his] daughter and [Respondent's] son-in-law ... under which [he] would be permitted to reside in the [subject premises] for the rest of [his] life, or until [he] chose to move out." However, a mere right to occupy a property is a personal privilege only is not an interest or estate in the property. Id., Matter of Strohe, 5 Misc 3d 1028(A) (Sur. Ct. Nassau Co. 2004). By contrast, a life tenant is an owner of the property. Board of Education v. Board of Assessors, 54 AD2d 978, 979 (2nd Dept. 1976), leave to appeal denied, 41 NY2d 805 (1977), Mayer v. Mayer, 11 Misc 3d 1051(A) (S. Ct. Queens Co. 2005).

Perhaps more importantly, Respondent does not produce any writing memorializing a creation of a life estate. A life estate is valid only if it is executed through a written agreement. Halberstam v. Kramer, 39 Misc 3d 126(A) (App. Term 2nd Dept. 2013), Karron v. Karron, 41 Misc 3d 1215(A) (Dist. Ct. Nassau Co. 2013). See General Obligations Law §5-703 (an estate or interest in real property, other than a lease for a term not exceeding one year, cannot be created unless by a conveyance in writing).

Respondent argues that he has partially performed his obligations pursuant to a life estate, thus warranting an exception to the Statute of Frauds. As Petitioner has demonstrated its entitlement to summary judgment, Respondent bears the burden of producing evidence in admissible form to demonstrate the existence of a disputed material issue of fact sufficient to require a trial. Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 (2000), Ceron v. Yeshiva Univ., 126 AD3d 630, 632 (1st Dept. 2015), SRM Card Shop, Inc., supra, 2 AD3d at 139-140. The law is well-settled that a party, in opposition to a motion for summary judgment, must assemble and "lay bare" affirmative proof to establish that the matters alleged are real and capable of being established upon a trial. Alfred E. Mann Living Trust v ETIRC Aviation S.a.r.l., 78 AD3d 137, 142 (1st Dept. 2010), Johnson v. Phillips, 261 AD2d 269, 270 (1st Dept. 1999); Fileccia v. Massapequa General Hospital, 99 AD2d 796 (2nd Dept.), aff'd, 63 NY2d 639 (1984); Hasbrouck v. Gloversville, 102 AD2d 905 (3rd Dept.), aff'd, 63 NY2d 916 (1984). Respondent's proof supporting his allegation of part performance consists of evidence that he has paid monthly carrying charges on the subject premises to the applicable condominium association.

Respondent may invoke the doctrine of part performance only if his actions were "unequivocally referable" to the agreement alleged, such that his actions alone must be "unintelligible or at least extraordinary," explainable only with reference to the oral agreement. Anostario v. Vicinanzo, 59 NY2d 662, 664 (1983), Alayoff v. Alayoff, 112 AD3d 564, 566 (2nd Dept. 2013). Accordingly, actions that can be reasonably explained by the possibility of other expectations fail to prove an entitlement to an exception to the Statute of Frauds. Anostario, [*8]supra, 59 NY2d at 664, Alayoff, supra, 112 AD3d at 566. On this test, payment of charges relating to real estate is not unequivocally referable to an agreement in a manner sufficient to raise a material question of fact that the payor is entitled to an exception to the statute of frauds, Congdon v. Everett, 63 AD3d 1541, 1542 (4th Dept. 2009), Lambert v. Kramer, 2008 NY Misc. LEXIS 8192 (S. Ct. NY Co. 2008), as such payments are consistent with a landlord-tenant relationship. Wilson v. La Van, 22 NY2d 131, 134 (1968), Christou v. Christou, 109 AD2d 1058 (4th Dept.), affirmed, 65 NY2d 853 (1985), Abbey v. Henriquez, 36 AD3d 724, 725 (2nd Dept. 2007), Santaro v. Jack of Hearts Carpet Co., 6 Misc 3d 1024(A) (S. Ct. Onondaga Co.),aff'd for the reasons stated, 23 AD3d 1073 (4th Dept. 2005), 151 Mulberry St. Corp. v. Italian Am. Museum, 2011 NY Misc. LEXIS 6958 (S. Ct. NY Co. 2011).

Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat summary judgment. Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533 (1991), McGinley v. Mystic W. Realty Corp., 117 AD3d 504, 505 (1st Dept.), appeal withdrawn, 23 NY3d 1058 (2014). If all that Respondent has to show in opposition to Petitioner's entitlement to summary judgment is that he evinced a life estate by paying carrying charges for the subject premises, then his assertion that he has an oral life estate is insufficient, and the Court grants Petitioner's motion to dismiss the Sixth Affirmative Defense of the Answer.

Petitioner also moves to dismiss the defenses Respondent raised in the Answer. The Second Affirmative Defense of the Answer alleges that the Notice contains material misstatements of fact and the Fifth Affirmative Defense of the Answer alleges that the petition contains material misstatements of fact. Neither defense actually explains what the misstatements are or, indeed, states anything other than that Petitioner made misstatements of fact. Statements in a pleading must be sufficiently particular to give the Court and the parties notice of, inter alia, the material elements of a defense. CPLR §3013. Respondent's bare and conclusory allegations in the Answer do not meet this standard. Accordingly, the Court grants Petitioner's motion to dismiss the Second and Fifth Affirmative Defenses of the Answer.

Similarly, the Tenth Affirmative Defense of the Answer alleges that Petitioner has failed to name a necessary party, but does not state who that necessary party is or, indeed, any other information whatsoever. Again, such a bare and conclusory pleading does not give notice of the material elements of the defense as required by CPLR §3013. Accordingly, the Court grants Petitioner's motion to dismiss the Tenth Affirmative Defense of the Answer.

Petitioner moves to dismiss the Fourth Affirmative Defense of the Answer. The Fourth Affirmative Defense of the Answer alleges that the petition fails to set forth the parties' interest. As noted above, the Court finds that Petitioner has proven that there is no issue of material fact that it is the landlord of the subject premises and that Respondent is the tenant, which is what the petition pleads. Respondent has not rebutted this proposition in his motion or in opposition to Petitioner's summary judgment motion. Accordingly, the Court grants Petitioner's motion to dismiss the Fourth Affirmative Defense of the Answer.

As the Court dismisses the First Jurisdictional Defense and the First through Tenth Affirmative Defenses of the Answer and finds that Petitioner has proven that there is no issue of material fact that it has proven every element of its prima facie case on its summary judgment motion, and as the Court has denied Respondent's motion to dismiss, the Court awards Petitioner a final judgment of possession against Respondent. Issuance of the warrant of eviction is [*9]permitted forthwith, execution thereof is stayed through December 31, 2015 for Respondent to vacate possession of the subject premises. Upon default in doing so, the warrant of eviction may execute after service of a notice of eviction.

As Petitioner has obtained a final judgment of possession, Petitioner's cause of action sounding in use and occupancy ripens. 40 W. 55 LLC v. Kurland, 2003 NY Slip Op 50606(U)(App. Term 1st Dept. 2003). However, Petitioner's agent avers in support of the motion that Respondent has not paid carrying charges of the subject premises and Respondent avers in opposition that he has, annexing to his motion documentation of payments made. The Court cannot resolve this fact dispute on motion papers. Moreover, Petitioner avers that it is entitled to use and occupancy at a fair market rate, but does not show any evidence supporting its position as to the amount of the fair market rate, like the market rental amounts of comparable apartments. 2641 Concourse Co. v. City University of New York, 137 Misc 2d 802, 804-805 (Ct. Cl. 1987), affirmed for reasons stated, 147 AD2d 379 (1st Dept. 1989)(the proponent of a market rate of use and occupancy bears the burden of proving the reasonable value). Accordingly, a hearing is warranted on the question of whether Petitioner is entitled to a judgment sounding in use and occupancy and, if so, at what rate.

The Court therefore grants Petitioner's motion for a judgment sounding in unpaid use and occupancy solely to the extent of calendaring the motion for a hearing, to be held in part H, Room 523 of the Courthouse located at 111 Centre Street, New York, New York, on January 8, 2016 at 9:30 a.m., without prejudice to the theories of any party to this proceeding concerning any issue of use and occupancy.

This constitutes the decision and order of this Court.

Dated:New York, New York

November 30, 2015

________________________________

HON. JACK STOLLER

J.H.C. Footnotes

Footnote 1:For the sake of convenience only, and without prejudice to the rights, causes of action, and/or defenses of any interested party, the Court refers to "Petitioner" as both Larry M. Small as a trustee and the life insurance trust itself.

Footnote 2:A deed annexed to Petitioner's cross-motion refers to the subject premises as a condominium unit and Respondent's affidavit in opposition to Petitioner's summary judgment cross-motion avers, inter alia, that he has been paying carrying charges for the condominium unit.

Footnote 3:Genger, et al. v. Arie Genger 1995 Life Instance Trust, et al., Index # 108602/2008 (S. Ct. NY Co.).

Footnote 4:This determination was upheld at Genger v. Arie Genger 1995 Life Ins. Trust, 84 AD3d 471 (1st Dept. 2011).

Footnote 5:The prior proceeding was captioned at Larry M. Small, Trustees v. Seymour Fang, Index No. L & T 87808/13 (Civ. Ct. NY Co.).