Lloyd v Williams
Annotate this CaseDecided on November 20, 2017
Civil Court of the City of New York, Kings County
Shondell Lloyd, Petitioner/Landlord/Lessor,
against
Jumaane Williams & SAFIYA WILLIAMS, Respondents, "John Doe" and "Jane Doe" Respondents-Undertenants.
055413/2017
Petitioner's Counsel:
Robert N. Mizrahi, Esq.
100 Church Street, Suite 800
New York, New York 10007
Respondent's Counsel:
Ryan Napoli, Esq.
Make the Road New York
301 Grove Street
Brooklyn, New York 11237
Marcia Sikowitz, J.
RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:.
PAPERS/NUMBERED
NOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT ANNEXED 1-3
ANSWERING AFFIRMATION AND AFFIDAVIT 8-9
REPLYING AFFIRMATION 10
EXHIBITS 4-7;—11-14—
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Petitioner commenced this holdover proceeding seeking possession of apartment No.2, at 854 Hancock Street, Brooklyn, NY 11233 based on the allegations in the thirty (30) day Notice of Termination. Paragraph (9) of the petition states that the dwelling is not subject to the City Rent and [*2]Rehabilitation Law (rent control) or the Rent Stabilization Law of 1969, as amended, because there are fewer than six units. Respondent filed a verified answer interposing defenses and counterclaims including that the apartment is rent stabilized, the building was built prior to 1974 and had six (6) units in 1974. The first counterclaim also states that the building was altered after 1974 to combine the units on the second and third floors to create one apartment from two on each floor. The subject unit is on the first floor, and was not altered. Reduction in the number of units from six to four after 1974 does not remove the building from rent stabilization. Respondent's answer states that because the predicate notice fails to state a ground for eviction listed under Part 2524 of the Rent Stabilization Code (RSC), the petition must be dismissed.
Respondent moves by Notice of Motion for an order dismissing the petition pursuant to CPLR 3212 and/or 3211(a)(1), (2), and (7) based on documentary evidence, lack of subject matter jurisdiction and/or failure to state a cause of action. Petitioner opposes the motion in all respects.
Respondents state in their motion to dismiss that certain facts are not in dispute including that the subject building was built prior to 1974 and it had six residential units. Exhibit B is the I-card which establishes the premise was built prior to 1974, and it had six residential units.
Respondents state the building was altered after 1974 to change the use of the building from a six unit, six families, to a four family dwelling. Exhibit C is an application to the DOB, filed by the prior owner, Steve Manesh, dated 1999, for permits to do alterations affecting a "change in occupancy/use." Item 11, Job Description, states, "Change use from 6-family to 4-family Dwelling." In item 13, it states the permit request proposes to alter the residential use to 4 units. Steve Manesh and Sharon Parvin of Capital City, LTD, and Idyll Homes, Inc, who both use 160- 17 Hillside Avenue, Jamaica NY as their business address, transferred title of the premise to Idyll Homes Inc. (Exhibit A to the Reply) Steve Manesh had authority to file permit requests at the DOB.
Respondents argue that under the ETPA, properties constructed prior to 1974 and containing six or more units are subject to the Rent Stabilization Law (RSL). If the number of apartments in a property is reduced to less than six units after the base date, such reduction cannot effect an exemption from the pertinent regulations, citing Shubert v. NYS Division of Housing and Community Renewal, 162 AD2d 261, (1st Dept. 1990) Respondents further argue, that if the apartment is rent stabilized, the thirty day notice of termination is a defective notice, and the petition must be dismissed for failing to serve a proper predicate notice under the RSL and RSC, and for failing to correctly plead the rent regulatory status of the apartment in the petition.
Respondent states in her affidavit in support of the motion, that she has resided in the subject apartment with her family for over five years. The building has three floors and a basement. In the basement there is at least one dwelling place, and petitioner is currently constructing another dwelling place. On the ground floor there are at least two dwelling places, on the second and third floors, there is one dwelling place on each floor.
Petitioner, Shondell Lloyd, submits an affidavit in opposition to the motion. Petitioner states she has been the owner for seventeen years, and currently, there are four units in the building. Petitioner states she has no personal knowledge that the building was altered, and the building does not appear to have been altered. Petitioner fails to dispute any of the facts established by the documents annexed to the motion. Petitioner fails to include an affidavit from an expert witness to dispute the documentary evidence submitted in the I-card or the DOB filings.
Petitioner relies on the holding in Lebnan LLC v. Olivia, 39 Misc 3d 31 (App Term, 2nd Dept, 2013) to support her opposition to the motion. The holding in Olivia, that a building which had a certificate of occupancy for five residential units, but contained eight units, was not exempt from rent stabilization, does not support petitioner's opposition herein.
Discussion
The Rent Stabilization Code defines a "housing accommodation" as "That part of any building or structure occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment..." 9 NYCRR 2520.6 (a) The functional definition is not limited [*3]by any physical or structural requirements, even if the additional units exceed the number permitted under the Certificate of Occupancy [Joe Lebnan v Oliva, supra, White Knight Ltd v Shea, supra , and Commercial Hotel, Inc, v White, supra], or if the number of housing accommodations was reduced to less than six after placement of a violation. Rashid v Cancel, 9 Misc 3d 130(A) (AT, 2nd & 11th Jud Dists, 2005), Ortiz v Sohngen, (NYLJ 4/20/17 p 35 c 1 (AT, 2nd, 11th & 13th Jud dists, 2017), and Robrish v Watson, 48 Misc 3d 143(A) (AT 2nd, 11th & 13th Jud Dists, 2015]
"...Whether a period of occupancy is accompanied by sufficient indicia of 'permanency' such that the space occupied maybe characterized as a home, residence or dwelling unit for rent-stabilization purposes is a fact-intensive question substantially turning on the intent and behavior of the parties. One factor to consider in reaching an appropriate determination is the length of time a landlord permits a person to continuously occupy the same space... Other factors which may be considered include whether the occupancy has any other residence, and any limitations relating to an occupant's use and control of the premises which may have been imposed and enforced by a landlord. The Code itself identifies the intent of the occupancy as a relevant consideration... "Matter of Gracecor Realty v Hargrove ,90 NY2d 350 at 355, 356 (1997). See also 124 Meserole v Recko, 55 Misc 3d 146(A) (AT, 2nd Dept, 2d, 11th & 13th Jud Dists, 2017)
Any agreement for a tenant to waive the benefit of any provision of the Rent Stabilization Law or Code is void. 9 NYCRR 2520.13. Petitioner's argument that respondents are precluded from raising the issue they are rent stabilized is not persuasive. Petitioner fails to produce proof that during any of the parties' prior nonpayment(s), the issue of their rent stabilization status was litigated and decided upon either by the court or by DHCR.
Summary judgment should only be granted where no triable issue of facts exist. Andre v. Pomeroy, 35 NY2d 351 (1974); Salino v. IPT Trucking, Inc, 203 AD2d 352 (1994) The moving party on a summary judgment motion must establish a cause of action or defense by admissible evidence sufficient for the court to direct judgment in his favor as a matter of law. Friends of Animals, Inc, v. Associated Fur Mfrs., Inc, 46 NY2d 1065 (1979), CPLR 3212(b)
The party opposing the summary judgment motion must lay bare its proof to establish that any real and alleged matters are capable of being established at trial. Zuckerman v. City of NY, et.al.. 49 NY2d 557 (1980) See also, Hasbrouck v. City of Gloversville, 102 AD2d 905 (AD 3rd Dept. 1984), aff d 63 NY2d 916 (1984 ) If " ... the issue is fairly debatable a motion for summary judgment must be denied ..." Stone v. Goodson, 8 NY2d 8, 12 (1960)
The relevant facts are not in dispute. The premises were built prior to 1974, and it had six residential units. After the base date for rent stabilization purposes, in 1999, the prior owner reduced the number of units to four residential apartments. The I-card and the DOB permit filings demonstrate these facts. Therefore, based on the foregoing, the subject apartment is rent stabilized, the predicate notice is defective under the RSL and RSC, and the petition fails to accurately plead the rent regulatory status of the apartment. The respondent's motion to dismiss the petition is granted and the petition is dismissed with prejudice. This constitutes the decision and order of the court.
DATED: November 20, 2017
Marcia J. Sikowitz, JHC
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