Miller v Delarosa

[*1] Miller v Delarosa 2018 NY Slip Op 50051(U) Decided on January 16, 2018 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
Civil Court of the City of New York, Bronx County

Dwayne Miller, Petitioner (Landlord),

against

Jennifer Delarosa, Respondent (Tenant).



57323/2017



Attorney for Petitioner:

Naveed M. Siddiqi, Esq.

Siddiqi Law Group P.C.

5907 175 Place, Penthouse Suite

Fresh Meadows, New York 11365

(718) 514-7900

Attorney for Respondent:

Nora Kenty, Esq.

Mobilization for Justice, Inc.

100 William Street, 6th floor

New York, New York 10038

(212) 417-3700
Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Motion to Dismiss:

Papers/Numbered

Notice of Motion With Supporting Affirmation, Affidavit, Exhibits A-N 1

Memorandum of Law in Support of Motion 2

Affirmation and Affidavit in Opposition 3

Reply Memorandum of Law With Exhibits A-B 4

PROCEDURAL HISTORY & BACKGROUND

In this holdover eviction proceeding, the petitioner-landlord seeks to recover possession of Apartment 2B on the second floor at 2130 Hughes Avenue in the Bronx from respondent-tenant Jennifer Delarosa. The Petition, dated October 6, 2017, alleges that the subject premises are located in a two-family house and are not subject to Rent Stabilization or Rent Control. The [*2]Petition further states that the tenant does not have a lease and that her tenancy was terminated by a written notice, a copy of which along with proof of service on August 18, 2017 is attached to and incorporated in the Petition. The termination notice is dated August 12, 2017 and advises Ms. Delarosa that she must vacate the premises on or before September 30, 2017 or else the owner will commence summary proceedings to remove her for holding over after the expiration of her term.

Respondent moves for summary judgment and dismissal of the proceeding under CPLR Rules 3212 and 3211(a)(7) on three grounds: First, that the Petition is defective because it claims that respondent has no lease when in fact she does and it runs through March 31, 2018. Second, that the Petition fails to state the regulatory status of the apartment as it claims the building is a two-family house not subject to rent regulation when in fact it is subject to Rent Stabilization because there were seven units in the building when she moved in. Third, that the proceeding is retaliatory under New York Real Property Law ("RPL") § 223-b(5) because petitioner initiated it twenty-eight days after respondent filed a harassment proceeding against him.

In support of her motion, respondent states in her supporting affidavit, sworn to on November 9, 2017, that she moved in to her apartment from a shelter in April 2015 with the assistance of a "LINC" Voucher and pursuant to a one-year lease with a monthly rent of $800, a signed copy of which is attached to her moving papers as Exhibit C. A year later, on March 3, 2016, she received a "Renewal Notice for the Living in Communities (LINC) IV Program" from the New York City Human Resources Administration, Department of Social Services (HRA), a copy of which is attached to her moving papers as Exhibit D. The notice states that respondent is still eligible for the LINC program, that her rental assistance was renewed for the period of April 1, 2016 through March 31, 2017, that her share of the rent is $223.80 and HRA will pay $576.20. Approximately a year later she received another "Renewal Notice for the Living in Communities (LINC) IV Program" from HRA (Exhibit E) that is almost identical to the prior one, except it states that the rental assistance was renewed for the period of April 1, 2017 through March 31, 2018, her share is $187.20 and HRA will pay $612.80. Respondent asserts that both she and LINC have been paying their respective portions of the rent at all relevant times until petitioner stopped accepting those payments (as of September 2017 for the LINC payments and as of October 2017 for hers). Respondent's attorney argues that the proceeding should be dismissed because respondent has a valid lease agreement with petitioner that runs through March 31, 2018. Respondent's attorney asserts that "The new lease term began on April 1, 2017 and ends on March 31, 2018", that Exhibit E is "[a] copy of the 2017 renewal lease" and that she spoke with a Ms. Williams at HRA who told her that "LINC usually requires a renewal lease from the landlord in order to certify a tenant for a continuing rental subsidy." Accordingly, respondent's attorney argues that petitioner's consistent acceptance of rent from respondent and the LINC Program created a valid lease agreement which has been renewed annually through the LINC program.

Regarding the number of units in the building, respondent asserts that when she moved in, "there were seven separate units in the house: three people living in separate rooms on the second floor; three people living separately on the first floor; and the landlord occupying the basement." At the time of signing her affidavit, there were tenants living in five separate units: On the second floor, three including herself, each with a separately locked bedroom and shared access to the kitchen and bathroom; on the first floor, a couple with a baby; and the landlord in [*3]the basement unit. Respondent's attorney asserts that she personally visited the premises on October 27, 2017 and observed that "each of the three floors of the house has its own locked door," and that on the second floor, where respondent lives, "there are three separate locked doors, two of which she does not have keys to open." During her visit, respondent's attorney observed a Con Edison utility bill addressed to someone named Wanda Wright at 2130 Hughes Avenue, 2nd floor (copy attached to moving papers as Exhibit H). A printout from the New York City Department of Buildings' website (Exhibit I) reflects that a complaint was made on February 26, 2014: "two story private dwelling frame house has illegal apartment in basement". Respondent's attorney argues that the facts as alleged establish that the building contains seven units, that it is therefore subject to Rent Stabilization, and the Petition should be dismissed because petitioner has incorrectly alleged the rent regulatory status of the building and has not stated a permissible basis for eviction under the Rent Stabilization Code.

Regarding the claim of retaliatory eviction, respondent asserts that in 2016 she filed three HP Actions against petitioner (on September 29, 2016, October 26, 2016 and November 17, 2016), the first and third of which were discontinued after repairs were made; the second one she describes as having been filed in error, as she had intended to file a harassment case. In December 2016, petitioner filed an eviction case against her that "was dismissed because the Court said the landlord could not remove me without LINC approval, since he had an ongoing agreement with LINC to accept rent for my apartment." On August 12, 2017 respondent received a termination notice from her landlord, and she then filed a harassment case against him on September 8, 2017, alleging that petitioner harassed her in violation of New York City Administrative Code § 27-2005(d), which proceeding is still ongoing. Respondent's attorney argues that there is a rebuttable presumption under RPL § 223-b(5)(b) that this eviction proceeding is retaliatory because it was initiated within six months after respondent commenced a harassment proceeding against petitioner.

In opposition, petitioner submits his own sworn affidavit and an affirmation from his attorney. Petitioner asserts that the subject premises are "a legal two family dwelling, and occupied solely by myself, my family and the respondent." He also asserts that he never signed a renewal lease after the initial one-year lease, that all of the "HPD proceedings" brought against him were dismissed and that he did not bring this proceeding in retaliation for those proceedings.

Petitioner's attorney argues that respondent has failed to meet the standard for summary judgment, her motion is based on "numerous and conclusory assertions without any substantive argument that justifies that no triable issue of fact exists" and that she failed to file an answer, making relief under CPLR R 3212 inappropriate at this juncture.

Regarding the existence of a lease, petitioner's attorney points out that the LINC notices which are attached to respondent's moving papers are not lease renewals — they only assert that her eligibility for the LINC Program has been renewed. The only executed lease attached to respondent's moving papers, Exhibit C, is an expired one-year lease which started on April 1, 2015.

Regarding the regulatory status of the apartment and respondent's claim that it is "de facto rent stabilized," petitioner's attorney argues that even if the premises is a "de facto multiple dwelling an illegal conversion, in and of itself, does not subject a premises to being designated a rent stabilized premises."

Regarding the claim of retaliatory eviction, petitioner's attorney argues that there are no pending actions for repairs, the prior actions for repairs were dismissed and/or discontinued and [*4]"the latest action for harassment was dismissed, and in any event, could not be properly maintained as the subject premises is a legal two (2) family dwelling."

In her reply memorandum of law, respondent's attorney argues that "[t]here are multiple grounds on which summary judgment should be granted" and that respondent did file an answer, which was personally served on petitioner on October 30, 2017. Regarding the existence of a current valid lease, respondent's attorney points to paragraph 27 of the initial lease between the parties which states, "Tenant must be offered a renewal of this Lease by the Landlord, unless the Landlord has good cause not to do so under applicable law." By participating in the LINC Program, and consistently accepting rent from the tenant as well as rent subsidy checks from the LINC Program, respondent argues that petitioner "has created and extended the lease agreement between the parties, written or not", on a yearly basis, not month-to-month. Further, respondent's attorney argues that petitioner agreed to provide respondent with renewal leases, as indicated in the "Statement of Understanding" included in the standard "LINC Landlord Packet", an unsigned copy of which is attached to the reply memorandum of law as Exhibit A, and which includes provisions at paragraphs 3 and 4 thereof stating that the tenant "is automatically entitled to a self-executing renewal of the Lease for a second year at the same total monthly rent provided for in the Rider" and "is further automatically entitled to three additional one-year leases at the same total monthly rent provided for in the Rider," subject to certain provisos.

Regarding the regulatory status of the premises, respondent's attorney asserts in her reply memorandum of law that case law makes clear that if the subject building contains more than six dwelling units and was constructed before 1974, the Rent Stabilization Law of 1969 applies. She attaches as Exhibit B to her memorandum of law a printout from the New York City Department of City Planning's website showing that 2130 Hughes Avenue was built in 1901. Respondent argues that she has met her burden as moving party on summary judgment to establish that the subject premises are governed by the Rent Stabilization Law of 1969 and that petitioner's "unsubstantiated allegations" in opposition are insufficient to defeat the motion.

Regarding the claim of retaliatory eviction, respondent's attorney argues that respondent's harassment proceeding was still ongoing at the time this holdover proceeding was filed and the fact that it now has concluded is irrelevant to the determination of whether this eviction proceeding is retaliatory as "[t]he notable fact is when Ms. De la Rosa's cases were filed in relation to when Petitioner commenced the instant summary eviction proceeding, rather than the outcome of those cases."

DISCUSSION

Legal Standards for Summary Judgment and Dismissal Under CPLR Rules 3212 and 3211(a)(7)

Summary judgment pursuant to CPLR R 3212 is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v Twentieth Century-Fox Film Corp (3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498, 505 [1957]). The court should not pass on issues involving credibility, as the function of summary judgment is "issue finding, not issue determination". Rodriguez v Parkchester South Condominium, Inc (178 AD2d 231, 577 NYS2d 52, 53 [1st Dep't 1991]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v New York Univ Med Center (64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316, 317 [1985]); Zuckerman v New York (49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980]. Once this showing has been made, the burden shifts to the party [*5]opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v Prospect Hospital (68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923, 925-926 [1986]); Zuckerman v New York (49 NY2d at 562, 427 NYS2d at 598). On a defendant's motion for summary judgment, the court must accept the plaintiff's pleadings as true and make its decision on the version of the facts most favorable to the plaintiff. Henderson v City of NY (178 AD2d 129, 130, 576 NYS2d 572 [1st Dep't 1991]). The motion must be denied where conflicting inferences may be drawn from the evidence.

On a motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action, the court is required to afford a liberal construction to the pleading, accord petitioner the benefit of every possible favorable inference, accept the facts alleged as true and determine only whether they fit within any "cognizable legal theory." Leon v Martinez (84 NY2d 83, 87-88, 638 NE2d 511, 513, 614 NYS2d 972, 974 [1984]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc v Goldman Sachs & Co (5 NY3d 11, 19, 832 NE2d 26, 31, 799 NYS2d 170, 175 [2005]); TIAA Global Invs, LLC v One Astoria Sq LLC (127 AD3d 75, 85, 7 NYS3d 1 [1st Dep't 2015]).

Petition States a Claim and There are Material Issues of Fact on All Three of Respondent's Claims

As to the existence of a current lease between the parties, the evidence submitted on this motion is insufficient to warrant dismissal of the proceeding at this juncture. The only fully executed lease presented (Exhibit C to the moving papers) was for a one-year term starting on April 1, 2015. While that document includes a "Renewal of Lease" provision in paragraph 27 which requires the landlord to offer the tenant a renewal lease "unless the Landlord has good cause not to do so under applicable law," respondent has presented no proof that the parties executed any subsequent renewal leases. Petitioner denies having signed any renewal leases with respondent or the LINC Program, Petitioner's Affidavit at ¶ 7, and the court cannot presume that any such documents exist.

The City's LINC "Renewal Notices" (Exhibits D and E to the moving papers) are not renewal leases or any other type of agreements and contain no signatures whatsoever. It does appear that the LINC Program's procedures contemplate landlords signing a "Statement of Understanding" (Exhibit A to respondent's Reply Memorandum of Law) that includes provisions entitling tenants to a "self-executing renewal of the Lease for a second year at the same total monthly rent provided for in the Rider" and to "three additional one-year leases at the same total monthly rent provided for in the Rider" subject to certain permissible increases and other provisos. However, no evidence has been presented that petitioner herein signed such a Statement of Understanding. Nor has respondent provided a copy of the "LINC Standard Lease Rider" referenced in the "Statement of Understanding." Compare Emeagwali v Burgos (2016 NYLJ LEXIS 4540 [Civ Ct Qns Co 2016])(granting tenant's motion to dismiss where it was undisputed that petitioner had executed a LINC Program Lease Rider which made it "clear that the parties agreed to an automatically, self-executing lease renewal unless one of two events occurred" and petitioner did not properly terminate respondent's tenancy prior to commencing the proceeding).

Respondent's assertions are also an insufficient basis upon which this court can grant her request to find her tenancy subject to Rent Stabilization and grant her motion to dismiss under CPLR R 3211(a)(7) or for summary judgment under CPLR R 3212. The Petition herein states a [*6]claim for holding over after termination of a month-to-month, unregulated tenancy under RPAPL § 741. While respondent controverts petitioner's allegations as to the number of units in the building and the concomitant rent regulatory status of the premises, her statements that there were "seven separate units in the house" when she moved in, Respondent's Affidavit at ¶ 11, and other allegations regarding the number of units in the building do not render the Petition defective and do not warrant dismissal under CPLR R 3211. Nor is summary judgment appropriate under CPLR R 3212.[FN1] The parties assert conflicting facts in their respective affidavits as to the number of separate housing accommodations in the building. While respondent and her attorney assert that they have observed up to seven separate housing units in the building, Respondent's Affidavit at ¶¶ 11-15; Respondent's Attorney's Affirmation at ¶¶ 15-10, petitioner counters with his own sworn affidavit stating that the building is "a legal two family dwelling, and occupied solely by myself, my family, and the respondent." Petitioner's Affidavit at ¶ 4. The documents respondent submitted corroborate certain of her allegations, but do not conclusively establish the existence of six or more units in the building.

Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v Twentieth Century-Fox Film Corp (3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498, 505 [1957]). The court should not pass on issues involving credibility, as the function of summary judgment is "issue finding, not issue determination". Rodriguez v Parkchester South Condominium, Inc (178 AD2d 231, 577 NYS2d 52, 53 [1st Dep't 1991]). Summary judgment will be denied where the parties' documentary evidence "raises questions rather than answers" and the remaining proof consists of "dueling affidavits". 366 Audubon Holding, LCC v Morel (22 Misc 3d 1108[A], 880 NYS2d 227 [Sup Ct NY Co 2008])(denying plaintiff-landlord's motion for summary judgment in an ejectment action against occupant of an alleged illegal, unregulated cellar apartment who raised Rent Stabilized status as a defense). Compare, e.g., White Knight Ltd v Shea (10 AD3d 567, 782 NYS2d 76 [1st Dep't 2004]) (upholding summary judgment finding premises to be subject to Rent Stabilization and dismissal of holdover petition where landlord admitted there were at least eight residential units in the subject building, which was built prior to 1947]); 567 W 184th LLC v Martinez (2017 NYLJ LEXIS 1011 [Civ Ct NY Co Apr 4, 2017])(granting summary judgment to respondents and dismissing holdover petition for failure to state that premises are rent regulated where unrefuted proof of a violation placed by the Department of Buildings established that a storage area was being used as a sixth housing accommodation, and its removal by petitioner did not exempt the building from Rent Stabilization); 2042a Pac LLC v Kelley (2017 NYLJ LEXIS [*7]2611 [Civ Ct Kings Co 2017])(granting summary judgment to respondents and dismissing holdover petition for failure to state that premises are rent regulated where respondents' exhibits included various documents, seven affidavits and an attorney affirmation which "overwhelmingly" established there to be ten separate units in the building and where petitioner did not dispute the configuration but rather claimed a lack of knowledge of and consent to the conversion of its two-family house to a rooming house).

If respondent ultimately proves that the building was constructed before 1974 and that it contains or has contained six or more separate "housing accommodations" as defined in the Rent Stabilization Code, under the Emergency Tenant Protection Act of 1974, case law holds that they will be subject to Rent Stabilization unless otherwise expressly excluded from coverage. Gracecor Realty Co v Hargrove (90 NY2d 350, 683 NE2d 326, 660 NYS2d 705 [1997]); Rosenberg v Gettes (187 Misc 2d 790, 723 NYS2d 598 [App Term 1st Dep't 2000]). However, it would be premature to dismiss this proceeding on a CPLR R 3211(a)(7) motion which addresses the face of the pleadings, or on a CPLR R 3212 motion for summary judgment which requires the absence of any material issues of fact. Whether the parties can ultimately establish their competing allegations at trial, see, e.g., Joe Lebnan, LLC v Oliva (39 Misc 3d 31, 965 NYS2d 268 [App Term 2nd Dep't 2013])(upholding trial court's determination that apartments were subject to Rent Stabilization where the proof at trial established that, despite the certificate of occupancy for five residential units and one commercial space, the building in fact had contained eight residential units); Feldheim v Stuckey (2017 NYLJ LEXIS 3559 [Civ Ct Bx Co Dec 20, 2017])(after trial, finding housing accommodations in five consolidated holdover proceedings to be subject to Rent Stabilization and dismissing the petitions for failure to plead proper regulatory status where the evidence established that there were seven residential units in the building); Mohamed v Abdulai (2017 NYLJ LEXIS 3081 [Civ Ct Bx Co Nov 1, 2017])(after trial, dismissing holdover proceeding and finding respondent's tenancy subject to Rent Stabilization where evidence established that building contained more than six residential units as "each locked interior room in both the first and second floor apartments constitute independent 'housing accommodations'"); Rivas v Conty (57 Misc 3d 986, 62 NYS3d 763 [Civ Ct Qns Co 2017])(after trial, finding respondent to be a Rent Stabilized tenant and dismissing holdover petition alleging tenancy to be unregulated where landlord's claim that the building contained only five residential units was conclusively refuted by a violation placed by the Department of Buildings showing there to be ten units), is not a consideration at this juncture.

Finally, as to respondent's claim of retaliatory eviction, the statutory protections against retaliatory eviction are set forth in Section 223-b of the New York State Real Property Law ("RPL"), which applies to "all rental residential premises except owner-occupied dwellings with less than four units." RPL § 223-b(6). It provides, among other things, that no landlord subject to this provision shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for a tenant's good faith complaint "to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes", RPL § 223-b(1)(a), and/or an action by a tenant "to secure or enforce rights under the lease under any other law of the state of New York, or of its governmental subdivisions which has as its object the regulation of premises used for dwelling purposes", RPL § 223-b(1)(b). While a claim of harassment in violation of the New York City Housing Maintenance Code, Administrative Code §§ 27-2004(a)(48) and 27-2005(d), is the type of complaint upon which a retaliatory eviction claim may lie, there are a number of issues of fact which cannot be determined on this motion, including whether or not 2130 Hughes Avenue is an owner-[*8]occupied dwelling with less than four units and whether petitioner filed this proceeding in retaliation for respondent's filing of a harassment proceeding on September 8, 2017, bearing in mind that the predicate notice terminating respondent's tenancy as of September 30, 2017 was dated August 12, 2017 and served on August 18, 2017.

CONCLUSION

Accordingly, respondent's motion to dismiss pursuant to CPLR R 3211(a)(7) and for summary judgment pursuant to CPLR R 3212 is denied and this proceeding is restored to the calendar for trial on February 21, 2018. This constitutes the Decision and Order of this Court, copies of which are being mailed to the parties' respective attorneys.

_________________________

Hon. Diane Lutwak, HCJ

Dated: Bronx, New York

January 16, 2018 Footnotes

Footnote 1:Petitioner's argument that summary judgment should be denied because respondent has not filed an answer is factually incorrect: respondent's answer with proof of service is in the court file. However, it should be noted that CPLR R 3212(b) requires that a motion for summary judgment be supported by copies of the pleadings, Washington Realty Owners, LLC v 260 Wash St, LLC (105 AD3d 675, 964 NYS2d 137 [1st Dep't 2013]), which respondent failed to do. Missing from the motion papers are a copy of respondent's Answer and a copy of petitioner's predicate termination notice, which was attached to the Petition and incorporated therein by reference. However, the court has discretion to overlook this procedural defect, CPLR § 2001 ("Mistakes, omissions, defects and irregularities"), and the motion is not being denied on this ground.