Siu Yat Chau v Marquez

[*1] Siu Yat Chau v Marquez 2018 NY Slip Op 50276(U) Decided on February 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2018
Civil Court of the City of New York, Bronx County

Siu Yat Chau, Petitioner (Landlord),

against

Yvette Marquez, Respondents (Tenants), "JOHN DOE" & "JANE DOE" Respondents (Undertenants).



72664/17



Attorney for Petitioner:

David S. Harris, Esq.

88-32 Sutphin Boulevard

Jamaica, New York 11435

(718) 291-5544

Attorney for Respondent:

Christopher Lamb, Esq.

Carlos Mulles, Law Graduate

Bronx Legal Services

349 E. 149th Street, 10th floor

Bronx, New York 10451

(347) 592-2476
Diane E. Lutwak, J.

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

Papers Numbered

Notice of Motion With Supporting Affidavits & Exhibits A-C 1

Attorney's Affirmation, Affidavit & Exhibits A-G in Opposition 2

Affidavit in Reply & Exhibit 3

BACKGROUND AND PROCEDURAL HISTORY

This is a holdover eviction proceeding against the 2nd floor tenant at 1879 Belmont Avenue in the Bronx based on a predicate thirty-day termination notice. The Petition states that the premises are not subject to Rent Stabilization "because it became vacant after June 1974. Said premises is a legal three (3) family dwelling." Respondent Yvette Marquez, by her attorneys, seeks dismissal under CPLR RR 3211(a)(1) and 3211(a)(7) based on documentary evidence and for failure to state a cause of action on the grounds of failure to plead the premises' [*2]regulatory status. Respondent asserts that her apartment is subject to Rent Stabilization because Petitioner receives a real property tax exemption under Section 421-a of the New York State Real Property Tax Law.

Attached to the motion papers are printouts from the New York City Department of Finance's website showing that 1879 Belmont Avenue in the Bronx (BBL # 2-02947-0042) is subject to a "421A-Newly constructed Multiple Dwelling Residential Property (Code 5114)" tax exemption for the period of July 1, 2007 through June 30, 2032. Respondent asserts that the Petition's failure to plead that the premises are subject to Rent Stabilization is a fundamental error which deprives the court of jurisdiction and mandates dismissal.

Petitioner opposes, arguing that the moving papers fail to "set forth a cognizable legal argument to support his contention that the demised premises is subject to Rent Stabilization." Affirmation in Opposition at ¶ 10(c). Petitioner confirms that the premises were built in 2005 and that the City issued a Certificate of Occupancy on February 12, 2007. Affidavit in Opposition at ¶¶ 4 & 5. Attached to the opposition papers are copies of the current deed, multiple dwelling registration statement and Certificate of Occupancy, which confirm that Petitioner owns the subject building which is a 3-family, Class A multiple dwelling with block and lot numbers of 02947 and 42, respectively.

DISCUSSION

Section 741(4) of the Real Property Actions and Proceedings Law (RPAPL) requires that the petition in a summary eviction proceeding,

(1) State the interest of the petitioner in the premises from which removal is sought. (2) State the respondent's interest in the premises and his relationship to petitioner with regard thereto. (3) Describe the premises from which removal is sought. (4) State the facts upon which the special proceeding is based. (5) State the relief sought.

Thus, under RPAPL § 741, where a tenancy is subject to a specific type of regulation, the general rules is that the Petition must state the premises' regulatory status, as it may determine the scope of the parties' rights and defenses. MSG Pomp Corp v Jane Doe (185 AD2d 798, 586 NYS2d 965 [1st Dep't 1992])(reversing lower courts, vacating a judgment which had been entered against the respondent pro se who claimed to be a member of the tenant of record's household and dismissing licensee holdover petition which contained misstatements as to the premises' ownership and rent regulatory status); Randall Assocs, LLC v Davis (20 Misc 3d 1116[A], 867 NYS2d 20 [Civ Ct NY Co 2008])(granting summary judgment and dismissing nonpayment proceeding where petition erroneously claimed the apartment was exempt from rent regulation due to high rent vacancy exemption).

Section 421-a of the New York State Real Property Tax Law, entitled "Affordable New York Housing Program," is a real estate tax exemption program for owners of certain newly-constructed multiple dwellings. Matter of Kew Gardens Dev Corp v Wambua (103 AD3d 576, 961 NYS2d 48 [1st Dep't 2013]); Lincoln Metrocenter Partners, LP v Tax Comm'n (654 NYS2d 964, 171 Misc 2d 520 [Sup Ct NY Co 1996]). For buildings participating in the 421-a tax exemption program, rents are "fully subject to control" under Rent Stabilization and/or the Emergency Tenant Protection Act of 1974. NYS RPTL § 421-a(2)(f). See Matter of Tribeca Equity Partners, LP v New York State Div of Hous & Community Renewal (144 AD3d 554, 42 NYS3d 102 [1st Dep't 2016]); and see generally Roberts v Tishman Speyer Props, LP (62 AD3d 71, 874 NYS2d 97 [1st Dep't], aff'd by and certified question answered by 13 NY3d 270, 918 NE2d 900, 890 NYS2d 388 [2009]). Rent Stabilization status attaches to the apartments even if the building would otherwise be exempt from rent regulation. North-Driggs Holdings, LLC v Burstiner (44 Misc 3d [*3]318, 325, 986 NYS2d 318 [Civ Ct Kings Co 2014]).

Respondent's motion to dismiss, based on assertions in the Petition and information printed out from the New York City Department of Finance's ("DOF") website, is brought under CPLR R 3211(a)(1) on the ground that the proceeding is barred by documentary evidence. A motion under CPLR R 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mut Life Ins Co (98 NY2d 314, 326, 774 NE2d 1190, 1197, 746 NYS2d 858, 865 [2002]); Leon v Martinez, supra (84 NY2d at 88, 638 NE2d at 513, 614 NYS2d at 974).

Here, Petitioner's allegation that the premises are not subject to Rent Stabilization is conclusively refuted by the documentary evidence from DOF's website that establishes the participation of 1879 Belmont Avenue in the RPTL § 421-a tax exemption program. The court may take judicial notice of reliable data maintained on internet websites, under common law principles as well as CPLR Rules 4511 and 4539 and New York State Technology Law § 306. See, e.g., Scarsini Interiors, Inc v Just In Time Furniture Warehouse, Inc (2009 NY Misc LEXIS 5373, 2009 NY Slip Op 31702[U][Sup Ct NY Co 2009]); Tener Consulting Servs v Fsa Main St (23 Misc 3d 1120(A), 886 NYS2d 72 [Sup Ct NY Co 2009]); 375 NY HDFC v Jones (47 Misc 3d 1206[A], 15 NYS3d 715 {Civ Ct NY Co 2015]); "Judicial Notice of Website Information", NYLJ, June 2, 2016 (Hutter, Michael J.). Given that the building receives a 421-a tax exemption, Respondent's apartment is subject to Rent Stabilization, and dismissal is warranted as the Petition erroneously states otherwise. MSG Pomp Corp v Jane Doe, supra.

CONCLUSION

Respondent's motion to dismiss is granted and the Petition is dismissed for failure to state the Rent Stabilized status of the premises and permissible grounds for eviction under the Rent Stabilization Law and Code. This constitutes the Decision and Order of this Court, copies of which will be mailed to the parties' respective counsel, unless they are picked up in the Part forthwith.

_________________________

Diane E. Lutwak, Hsg. Ct. J.

Dated: February 26, 2018

Bronx, New York