Vera v Stamen Cropsey LLC

[*1] Vera v Stamen Cropsey LLC 2017 NY Slip Op 50183(U) Decided on January 20, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2017
Civil Court of the City of New York, Kings County

Maria Vera, Petitioner

against

Stamen Cropsey LLC, Respondent, Victor Spivacenco Victor Spivacinco Okanagan Oblucinscain Okanagan Oblucinscaia Respondents



19453/16
Cheryl Gonzales, J.

The following papers numbered 1 to 15 read on these motions:

Papers/Numbered

Notice of Motion and Affirmation Annexed 1-2

Notice of Motion and Affirmation/Affidavit Annexed 11-13

Affirmation in Opposition 7

Exhibits 3 -6, 8-10, 14-15

Petitioner commenced this proceeding on September 23, 2016 seeking an order restoring her to possession of the subject unit and permission to add Victor Spivancenco, Victor Spivacinco, Okanagan Oblucinscain, and/or Okanagan Oblucinscaia as a respondent ( respondent-alleged new tenant) and John and Jane Doe. Respondent, Stamen Cropsey LLC, [*2]interposed an answer with a jury demand asserting that this court lacks jurisdiction to hear this proceeding; petitioner voluntarily surrendered the apartment and received bargained for consideration; petitioner failed to join the new tenant who is a necessary party; the proceeding was brought in the wrong form; service was improper pursuant to the order; service by certified mail, return receipt requested violates the New York State and United States Constitutions; the proceeding is barred under the doctrine of laches; petitioner lacks standing to bring this proceeding; a housing court judge is not empowered to authorize the commencement of a summary proceeding.

Respondent, Stamen Cropsey LLC, subsequently moved for an order dismissing this proceeding on the ground that the court lacks subject matter jurisdiction to determine the validity of the surrender agreement; the judge who signed the order to show cause lacked the authority to do so; Housing Court lacks subject matter jurisdiction to hear lockout proceedings; the proscribed method of service is unconstitutional; the court is without authority to direct service by certified mail, return receipt requested; and a housing court judge lacks authority to authorize the institution of this proceeding.

Third party respondent, Victor Spivacenko also moved for an order granting leave to conduct discovery in the form of a notice to produce and an examination before trial of petitioner.

Petitioner, who resided in the subject rent stabilized apartment with her husband for 19 years, asserts that she was coerced into signing a surrender agreement. Respondent receives a DRIE subsidy. Respondent's last lease was for a term of two years ending on August 31, 2017 with a monthly rent of $898.03. Respondent, Stamen Cropsey LLC, commenced a non payment proceeding against petitioner, and the parties entered into a stipulation on March 25, 2016 in which petitioner agreed to pay the sum of $2774.37 by April 30, 2016 along with April's rent and respondent landlord agreed to make specified repairs. Petitioner states that she complied with her obligation under the stipulation before the due date, and inquired about the repairs. Respondent landlord then offered to renovate the apartment instead of making repairs, and informed petitioner that she would receive a new lease with a higher monthly rent, and respondent landlord would take care of whatever was necessary with DRIE. Petitioner asserts that she felt pressured by respondent landlord who informed her that she would have to move out of the apartment for two months for the renovations to take place, and offered to allow petitioner to store her belongings in the basement, return petitioner's security deposit for use during the relocation, and give petitioner three months rent in addition to a new security deposit upon her return to the renovated apartment. Petitioner states that she was then given two copies of a document to sign and have notarized as well as her existing lease. Petitioner, who states that she has a learning disability that impacts on her ability to read, did not read the document, and she relied on respondent landlord's representations. Petitioner states that she went to visit her mother in Florida because she had nowhere else to go. Petitioner then experienced difficulty reaching respondent landlord while she was in Florida. Subsequently, petitioner was informed by someone in respondent landlord's office that she needed to remove her possessions from the basement because they created a fire hazard, and received an email from respondent landlord informing her that she had surrendered the apartment and it had been re-rented.

Petitioner commenced this proceeding pursuant to RPAPL§ 713(10) which authorizes the commencement of a special proceeding when the person in possession has entered into possession by force or unlawful means and the person in possession was not in quiet possession for three years before the time of forcible or unlawful entry. Pursuant to the Uniform Rules for the New York City Civil Court §208.42 (a) summary proceedings brought under the RPAPL which involve residential property must be brought in the Housing Part of the Civil Court (see Rasch's Landlord and Tenant, 4th Ed. §40.4). Respondent interprets the Civil Court Act § 110 (a) (5) to exclude proceedings brought pursuant to RPAPL §713 (10) and states that the court is only empowered to grant relief to a landlord seeking possession. However, respondent provides nothing to support this claim which is without merit.

Respondent also contends that certified mail return receipt service of the order to show cause by which this proceeding was commenced is unconstitutional since the mailing was done on September 23, 2016 and the return date was September 30, 2016. CPLR § 403(d) provides that the court may authorize the commencement of a special proceeding by directing the service of an order to show cause at a time and manner specified therein. In this instance the court directed service by personal service or certified mail return receipt requested. Petitioner timely served the papers by certified mail return receipt requested, and respondent had reasonable notice of petitioner's claims and the opportunity to make an appearance.

Further, respondent asserts that RPAPL §733 directs that service of a petition and notice of petition be made at least 5 days and not more than 12 days before the petition is noticed to be heard, and only modifies the notice requirement in instances where the lease has expired. RPAPL §733(2) permits commencement of a proceeding by order to show cause, and CPLR § 403 provides that the court shall direct the time and manner of service. In this instance, the court directed service to be completed by September 23, 2016 which is more than five days prior to the return date. Pursuant to CPLR § 2103 service by mail is complete upon mailing and respondent's argument that it did not receive proper notice is unavailing.

Respondent cites to General Motors Corp v Carter-Wallace, 147 Misc 2d 21 [Civ Ct NY Cty 1990] in support of its proposition that a Housing Court Judge, who is a hearing officer as stated in Met Council Inc. v Crosson, 84 NY2d 328 (1984)[FN1] , is not authorized to sign an order to show cause commencing a summary proceeding. The case cited by respondent was a commercial proceeding assigned to Part 52 in which a Hearing Officer signed the order to show cause in contravention of the directive of the Supervising Judge of New York County who directed that ex parte applications be handled to the back-up Civil Court Judge. The instant matter involves residential premises. Civil Court Act §110 (a) grants the Housing Part of the Civil Court jurisdiction over actions and proceedings involving the maintenance of housing standards which, although not defined in the Civil Court Act, is broadly construed to include actions by landlords which interfere with a tenant's occupancy of an apartment (see Prometheus [*3]Realty Corp. v City of New York, 80 NY3d 206 [1st Dept, 2010]). 22 NYCRR 208. 42 provides that proceedings brought under Article 7 of the RPAPL shall be commenced in the Housing Part, and pursuant to Civil Court Act § 110 (e)(f) housing judges are empowered to hear, determine and grant any relief within the powers of the housing part except those to be tried by a jury. Further, 22 NYCRR 208. 43(j) now provides that in the discretion of the administrative judge, a housing judge may preside in the housing part which modifies the former provision that a judge of the Civil Court shall preside over the housing part (see Glass v Thompson, 51 AD2d 69 [1976]). A housing judge's authority to sign an order to show cause commencing a lockout proceeding derives from the Civil Court Act, and as with HP proceedings, housing court judges sign orders to show cause which commence the proceedings. Further, although the printed forms used by the court in lockout proceedings state that part of the relief sought is treble damages pursuant to RPAPL § 853, this is not relief available under Article 7 of the RPAPL and the housing court lacks jurisdiction to entertain claims for damages (Rostant v Swersky, 79 AD3d 456 [1st Dept, 2010]).

Respondent asserts that petitioner executed a valid surrender of the apartment and bears the burden of proving this defense (see Sam & Mary Housing Corp. v Jo/Sal Market Corp., 121 Misc 2d 434 (Sup Ct 1983) aff'd as modified on other grounds, 100 AD2d 901 (2nd Dept 1984) aff'd 64 NY2d 1107 [1985]). Respondent also contends that this court lacks jurisdiction to rule on the validity of the surrender agreement as that would be declaratory relief. The Appellate Division 1st Department in Cohen v Goldfein, 100 AD2d 795 [1984] determined that, pursuant to Civil Court Act § 204, Civil Court had the authority to determine whether a lease was valid and there was no need for a declaratory judgment. In this proceeding, petitioner seeks to be restored to possession asserting that she was fraudulently induced to sign a surrender agreement and the terms of her rent stabilized lease should remain in full force and effect. In making a determination on petitioner's claim the court must consider whether respondent establishes its defense. In Grasso v Matarazzo, 180 Misc 2d 686 (App Term 2d Dept, 1999), the court affirmed the decision of former Housing Court Judge, Delores Thomas, that the surrender agreement signed by the tenant was unenforceable. This summary proceeding is based on a similar set of circumstances. Pursuant to the Civil Court Act §204 the Civil Court has jurisdiction over summary proceedings to recover possession of property, and this court has the authority to make a determination on all the issues involved in this lockout proceeding.

Based on the foregoing, petitioner's motion to add the alleged new tenant as a party is granted, and respondent's motion to dismiss this proceeding is denied. Third party respondent's request for discovery is granted to the extent that petitioner is directed to produce the documents demanded on or before February 3, 2017. This matter is restored to the calendar on February 10, 2017 at 9:30AM for trial.

This constitutes the decision and order of this court.

Dated: January 20, 2017

________________________

Cheryl J. Gonzales, JHC Footnotes

Footnote 1:See also, Glass v Thompson, 51 AD 69 [2nd Dept 1976], statute authorizing hearing officers to hear and determine proceedings found constitutional; Babigan v Wachtler ,133 Misc 2d 111 [Sup Ct 1986], housing judges are duly constituted judicial officers.