20 MK LLC v Carchi
Annotate this CaseDecided on December 20, 2017
Civil Court of the City of New York, Queens County
20 MK LLC, Petitioner,
against
Manuel Carchi, Respondent, & "JOHN DOE," Occupant.
L & T 61566/17
Petitioner's counsel:
Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLPAttn: Daniel J. Pomerantz, Esq.
25 Chapel Street, Suite 705
Brooklyn, NY 11201
Respondents' counsel:
The Legal Aid Society
Civil Practice
Attn: Garrett Cain, Esq.
120-46 Queens Boulevard, Fl. 3
Kew Gardens, NY 11415-1204
Joel R. Kullas, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion seeking summary judgment and dismissal and for further relief:
Papers/Numbered
Notice of motion and affidavits annexed 1
Affirmation in Opposition 2
Affirmation in Reply 3
Supplemental affirmation
Exhibits
Stipulations
Other
JOEL R. KULLAS, Judge, Housing Court
Petitioner commenced this summary holdover proceeding seeking to regain possession of 41-05 69th St., Apt. 1-R, Woodside, NY 11377 ("the subject premises"). The petition alleges petitioner terminated respondent's unregulated monthly tenancy effective April 30, 2017. The petition alleges the subject premises is not subject to Rent Control or the Rent Stabilization Law of 1969, as amended, because the building was substantially rehabilitated and a new Certificate of Occupancy issued subsequent to July 1, 1974. Respondent retained counsel who interposed an answering containing the affirmative defense that the petition is defective because the subject premises was built before 1974, has six or more units, and was not substantially rehabilitated. Respondent moves for summary judgment pursuant to CPLR 3212.
In order for respondent to prevail on his request for summary judgment, he must eliminate any triable issue of fact. See Andre v Pomeroy, 35 NY2d 361 (1974); see also, Doize v Holiday Inn Ronkonkoma, 6 AD3d 573 (2d Dept. 2004). The movant has the initial burden of proving entitlement to summary judgment and upon such proof, the opposing party must show facts sufficient to require a trial of a material fact. (See Winegrad v New York Univ. Med. Center, 64 NY2d 851 (1985) citing Zuckerman v City of New York, 49 NY2d 557 (1980)). When the existence of a triable issue "is even debatable, summary judgment should be denied." Ochoa v Walton Management, LLC, 19 Misc 3d 1131(A), 2008 WL 1991486 (NY Sup, 2008).
Respondent has established his claim for summary judgment. The parties agree that the subject building contains six units. Pursuant to Rent Stabilization Law 26-504, a building constructed prior to 1974 that contains six or more units is subject to rent stabilization unless otherwise exempt. Respondent presents a certificate of occupancy confirming that the subject building was built in the 1920s (see Notice of Motion, Exhibit C). Respondent also presents the most recent certificate of occupancy dated March 29, 1951, stating the subject building is approved as a two-story, two-family house. (Notice of Motion, Exhibit D). Respondent swears that the subject building contains six units and that two additional floors were added to the house within the last ten years. Respondent presents Environmental Control Board ("ECB") violations which confirm both the existence of seven units (some illegal) and the addition of two illegal floors. (Notice of Motion, Exhibit F.)
While petitioner's attorney alleges substantial rehabilitation, petitioner has failed to submit an affidavit of personal knowledge regarding such work. Also, NYCRR Sec. 2520.11(e)(5) states:
in order for there to be a finding of substantial rehabilitation, all building systems must comply with all applicable building codes and requirements, and the owner must submit copies of the building's certificate of occupancy, if such certificate is required by law, before and after the rehabilitation.Since respondent has produced proof the violations exist on the subject building, any alleged substantial rehabilitation is not in compliance with NYCRR Sec. 2520.11(e)(5). The violations confirm that the building is currently occupied without a valid certificate of occupancy. (Notice of Motion, Exhibit F.)
Furthermore, respondent would be entitled to rent stabilization protection even if a substantial rehabilitation occurred within the last 20 years. A tenant is entitled to a rent stabilized lease if he was in full occupancy of the subject premises during the rehabilitation. (The 12th Co. LLC v New York State Div. of Housing and Community Renewal, 303 AD2d 328 [1st Dept 2003].) Respondent swears that he has occupied the subject building for over twenty years (Notice of Motion, Exhibit A) and occupied the subject premises during the addition of the [*2]two illegal floors in the subject building. Petitioner has not controverted this allegation. Thus, even assuming the truth of petitioner's allegation regarding the rehabilitation, given respondent's occupancy of the unit during the alleged rehabilitation, respondent would be entitled to rent stabilization protection.
Petitioner's argument that an illegality could result is not the basis for this court to deny rent stabilization protection to respondent. Apartments do not need to be legal in order to subject the building to rent stabilization. For instance, in Robrish v Watson, 48 Misc 3d 143(A) (App Term, 2nd, 11th & 13th Jud Dists 2015), the court found that a two-family house previously utilized as a 10 room rooming house was subject to rent stabilization protection, even though the illegal use of the subject building had ended. The court relied upon language in the Rent Stabilization Code ("RSC") which defines a housing accommodation as "[t]hat 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." Robrish v Watson, 48 Misc 3d 143(A) at *1 quoting RSC 9 NYCRR § 2520.6[a]. The court held that "a building with six or more individually rented rooms is subject to rent stabilization, regardless of whether any structural changes were made to the premises (citations omitted)." Id. The issuance of a vacate order does not alter the result. For instance, in Rashid v Cancel, 9 Misc 3d 130(A) (App Term, 2nd & 11th Jud Dist 2005), the Appellate Term found that the use of a basement unit for residential purposes brought a building under rent stabilization because the basement's residential use constituted a sixth residential unit. Rashid v Cancel, 9 Misc 3d 130(A), supra. Likewise, in Joe Lebnan v Oliva, 39 Misc 3d 31, (2nd, 11th & 13th Jud Dists), the court found the building subject to rent stabilization even though the certificate of occupancy listed five residential units and a doctor's office. The court relied on the Rent Stabilization Code's definition of "housing accommodation" as "part of any building or structure occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit of apartment " Lebnan v Oliva, 39 Misc 3d at 33. The court in Lebnan quoted from the Court of Appeals decision in Matter of Graecor Realty Co v Hargrove, 90 NY2d 350, which held that the primary issue in determining whether a building is subject to rent stabilization is the function of the units, which "is not limited by any physical or structural requirements " 90 NY2d at 355. Therefore, the court finds that the building is subject to rent stabilization.
Based on the foregoing, the court grants respondent's motion for summary judgment on the grounds that the subject premises are subject to rent stabilization; the petition is dismissed. This order is without prejudice to respondent's claim for attorney's fees.
This constitutes the decision and order of the court.
Date: 12/20/2017
___________________________
JOEL R. KULLAS
Judge, Housing Court
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