Lepore v 65 Whipple LLC
Annotate this CaseDecided on August 29, 2018
Civil Court of the City of New York, Kings County
Antoinette Lepore, Petitioner,
against
65 Whipple LLC et al., Respondents.
82044/17
Petitioner's counsel
DC37 - Municipal Employees Legal Services
125 Barclay Street - 10th Floor
New York, NY 10007-2179
(212) 815-1875
Respondents' counsel
Richard Neubarth & Associates PLLC
134 Broadway - Suite 610
Brooklyn, NY 11249
(718) 387-8428
Gary F. Marton, J.
Recitation of the papers considered in the review of the motion:
Papers/Numbered
Respondents' motion with affirmations 1
Petitioner's cross motion with affirmation & affidavit 2
Petitioner's affirmation opposition 3
Respondents' affirmation in opposition 4
Petitioner's reply affirmation 5
The court file and the file under index no. 6180/2007 6
After considering the testimony and the other evidence at the hearing in this alleged "illegal lockout" proceeding brought pursuant to RPAPL § 713(10), the court makes the following findings of fact, reaches the following conclusions of law, grants the motion of respondents 65 Whipple LLC (hereinafter "LLC") and Oberlander (LLC's managing agent) for summary judgment, and denies petitioner Lepore's cross-motion for partial summary judgment. The court will enter a judgment dismissing the proceeding, a copy of which respondents shall serve forthwith upon petitioner with notice of entry.
THE BACK STORY
The court finds that Lepore was the rent-controlled tenant and, until March 8, 2007, the occupant of the apartment that took up the second floor of the three- story building at 65 Whipple Street in Brooklyn, NY The court finds that at that time this real estate was owned not by respondents LLC and/or Oberlander but by nonparties Bertram Katz and/or Bernard Katz and/or Eli Katz.
On March 8, 2007 a fire started on the building's first floor and spread to the second. The Department of Buildings of the City of New York ("DOB") issued a peremptory vacate order dated March 13, 2007. Among other things the order provided that there was imminent danger to the life and safety of the occupants "[d]ue to fire at second floor apartment — exterior wall is separating and bulging outward" and DOB ordered that "the aforesaid building or part thereof remain vacant and unoccupied until such time as the building is declared safe by the Department."
Shortly thereafter Lepore filed a complaint against "Bernard Katz/Eli Katz" at the Division of Housing and Community Renewal of the State of New York ("DHCR"). By an order under Docket Number VD220014S and dated May 3, 2007, DHCR reduced Lepore's rent to $1.00 per month as of March 8, 2007, i.e., "the date of the fire which caused the tenant to vacate involuntarily." The order provided also: "This Order entitles the tenant upon the payment of $1.00 per month to be restored to occupancy of the subject apartment."
Also at about this time, by an order to show cause sought on April 6, 2007, petitioner began an HP proceeding in this court under index number 6180/2007. She brought the proceeding against "Bernard Katz," alleged that he was the owner or agent of the owner and, as required by statute, also against the City of New York's Department of Housing Preservation and Development ("HPD"). During some but not all of the HP proceeding Lepore was represented by counsel. The court (Gonzales, J.) conducted a hearing and by a decision and order dated October 5, 2007 directed Katz "to correct all building violations, and restore petitioner to possession of her apartment on or before January 31, 2008."
Katz did not restore Lepore to possession by this deadline. By an order to show cause sought on February 7, 2008 Lepore moved in the HP proceeding for relief. By a decision and order dated February 15, 2008 the court (Lau, J.) granted the motion "to the extent of ordering resp forthwith to comply with the prior order of this Court" and provided for a "Hearing 3/10/08 @ 2:30 pm." By a notice of motion dated February 21, 2008 HPD moved in the HP proceeding to punish Katz for contempt. This motion was made returnable on March 10, 2008, i.e., at the same date and time as the scheduled hearing.
The motion and the scheduled hearing were adjourned one or more times and then, some six months later, on or about September 23, 2008, they were marked "off calendar." During these adjournments, and on either July 25, 2008 or on September 12, 2008, Bernard Katz filed an application at DHCR under Docket Number WG 220004 OE. In that application Katz sought permission to evict Lepore on the ground of economic infeasibility as defined by New York City Rent and Eviction Regulations [9 NYCRR] § 2204.9(a).
By a notice of motion returnable on April 14, 2009 HPD moved in the HP proceeding to restore to the court's calendar the contempt hearing that had been marked "off calendar" on September 23, 2008. The court (Lau, J.) granted the motion to the extent of scheduling the [*2]resumption of the hearing on July 20, 2009. Thereafter, however, by a decision and order dated October 1, 2009, the HP court granted Katz' application for a stay of the HP contempt hearing pending the outcome of the administrative proceedings at DHCR [FN1] .
By an order dated July 16, 2010 DHCR's Rent Administrator denied Katz' application. The order explained: "Evidence in the file indicates that the tenant had won a Court Decision under Index No. HP 6180/07 in October of 2007 which directed the owner to restore the building and the tenant to the apartment. Our records show that the DHCR reduced the tenant's rent to $1 per month pending restoration of service to the tenant. After careful consideration of all the information and evidence, the Rent Administrator finds that the Court has ruled on this issue and there is no indication that the owner filed an appeal. Further, the tenant and HPD have both filed contempt motions against the owner which are currently pending in Court."
Katz appealed administratively from the Rent Administrator's order dated July 16, 2010. By an order under Docket No. YH220025RO dated February 24, 2011 DHCR's Commissioner revoked the order and remanded the proceeding. The Commissioner found that the Rent Administrator ought to have reached and addressed the merits of Katz' petition directly instead of relying on what had happened in the HP case. The order provided: "Accordingly, the Administrator's order denying the owner's application is revoked and the proceeding is remanded for such further processing as may be necessary so that a determination can be made on the merits as to whether the subject apartment qualifies to be removed from the housing rental market pursuant to the rent and eviction regulations."
So far as appears the status quo remained unchanged for the next thirty-four months. Then, by a deed dated December 26, 2013, Katz conveyed the real estate to LLC. So far as appears, at no time did Lepore seek to enjoin Katz from transferring the real estate or take any other steps either to prevent Katz from conveying the real estate or to give notice of the pending litigation to those who might acquire an interest in the real estate [FN2] .
By an order under index number ZC 220006 RP and dated August 9, 2017 (i.e., more than six years after the remand order dated February 24, 2011 and more than three and a half years after the conveyance in December 2013), DHCR's Rent Administrator found "that the Order heretofore entered on July 16, 2010, should be modified." The Rent Administrator held: "As the premises have been restored to habitability, there is no basis for [Katz's] petition. The tenant is free to seek restoration to the subject apartment in any court of competent jurisdiction. Therefore, it is ordered that the above-mentioned Order previously entered herein be, and it [*3]hereby is, modified."
THE INSTANT PROCEEDING
Two weeks after DHCR's determination dated August 9, 2017 Lepore began the instant wrongful entry and detainer proceeding. Respondents interposed an answer and LLC moved for summary judgment. LLC alleged, among other things, that after acquiring the real estate in December, 2013 it had demolished most of the building that was there and had built a larger building (i.e., one that occupies 80% of the lot instead of the prior building's 50% footprint) with a different configuration of apartments, and that, accordingly, it could not and need not restore Lepore to possession because Lepore's apartment no longer existed. Petitioner cross-moved for partial summary judgment.
By a decision and order dated April 18, 2018 the court held that an evidentiary hearing would be necessary on the issue of whether the building had been so damaged that LLC had no choice but to demolish it. Cf., Quiles v Term Equities, 22 AD3d 417, 421 (1st Dep't., 2005) ("a building may be so damaged...that the owner is left with no real choice but to demolish it, and that in that case the owner is not obligated to offer apartments in the new building to the former tenants of the rent-stabilized and rent-controlled apartments no longer in existence." The court held the balance of the motions in abeyance.
Now, as set out in the first paragraph above, the court grants the motion and denies the cross-motion. To succeed here Lepore would have to show that LLC wrongfully deprived her of possession. RPAPL § 713(10). However, she is unable to do this because the alleged wrongful deprivation took place before LLC acquired the property in December, 2013. Lepore does not allege that LLC was not a bona fide purchaser of the real estate, much less make a showing that would support an application, not made here, for leave to take discovery on this issue. To put it another way: Lepore may have been wrongfully deprived of possession by Katz, but Katz is not a party here; that issue, which may remain outstanding in the HP proceeding (see the decision and order therein dated October 1, 2009), is not before this court.
Were this court not dismissing this proceeding on this ground, the court would dismiss it on a different ground. As noted above, the court conducted a hearing on the issue of whether the building was so damaged that LLC was left with no real choice but to demolish it.
At the hearing Avishay Mazor, a structural engineer who was asked by LLC to assess 65 Whipple Street, testified for respondents. He visited the site in early 2014, i.e., shortly after LLC purchased the property, and at another time later that year. He testified that the building's structure was compromised, that there were no floors at the building other than temporary plywood floors, that it was not possible to repair the floors that had been there but only to replace them, that the studs were out of plumb, and that the shoring-up of the building that had been done had been done only to make the site a safe place to work, i.e., not as a first step toward restoring the building to its prior condition. He testified that the building could not be put back as it had been and that, instead, it had to be rebuilt. The photographs received in evidence during his testimony corroborated the foregoing. The court finds that his testimony was credible and deserving of full probative weight.
Lewis Gross, the project manager who supervised the construction of the building that LLC built on the site, also testified for respondents. He averred that he first visited the site at the [*4]end of 2013 or at the beginning of 2014, that the roof was torn, that the roof membrane was rotten, and that rain would fall all the way to the basement. He testified that two-thirds of the building was missing, and that only the cellar, first floor, and back three walls on the ground level were left. He testified that the building could not be restored. The photographs received in evidence during this testimony corroborated his description of the site. He testified as well that the newly-constructed second floor of the building consists of not one but two apartments. The court finds that his testimony was credible and deserving of full probative weight.
In opposition Lepore offered her own testimony and the testimony of Andie Holder, a building inspector employed by the City of New York. However, Holder testified that he had not been to 65 Whipple Street since 2004; accordingly, the court holds that his brief testimony has no probative value.
Lepore testified that she went to her apartment two or three days after the fire in 2007, that she was allowed into the building to retrieve personal effects notwithstanding the vacate order, that the stairwell to the second floor was intact, and that her apartment was little damaged. She testified as well that every year after the fire she went by the building two or three times per year, and that the building seemed largely intact, i.e., not in need of demolition. In support of the foregoing she also offered two photographs, one taken in November, 2012 and the other in November, 2014.
The court declines to accord significant probative weight to Lepore's testimony. She testified on cross-examination that when she went to the building she never saw an exterior wall that was bulging outward. This testimony was squarely at odds with the DOB vacate order which explicitly so provided. The court notes that Lepore did not testify that she had any expertise in engineering or architecture, or experience in or familiarity with construction. Lepore's two photographs show only the front of the building but not the sides or the back. The earlier photograph shows broken windows and a sealed door to the building, and the later photograph, taken at an angle from which the doorway cannot be seen, shows that the windows on the ground level are cemented or bricked-up and that the windows on the two floors above are covered in plywood [FN3] . The court declines to infer from Lepore's testimony and her photographs that the building need not have been torn down and that it might have been repaired so that it would have been as before.
In short, the court finds that LLC had no choice but to tear down the bulk of what was left of the building, that Lepore's apartment does not exist in the building that LLC constructed on the site, and that Lepore was not wrongfully evicted or locked out of the premises by respondents. Quiles, supra; see also, Gregoretti v 92 Moningside Avenue LLC, 2017 NY Slip Op 30655(U) (Sup Ct, NY Co., 2017).
The court will mail copies of this decision and order to the parties along with their exhibits.
Dated: August 29, 2018
Brooklyn, NY
_________________________________
Gary F. Marton Footnotes
Footnote 1:The record before this court does not show the activity, if any, that took place between July 20, 2009 and October 1, 2009.
Footnote 2:Might Lepore have recorded DHCR's $1.00 per month order dated May 3, 2007 against the property? If not, should the Legislature amend Article 9 of the RPL to permit the recording of DHCR's $1.00 per month orders? Or should parties situated similarly to Lepore simply be left to seek injunctive relief in courts with the subjective matter jurisdiction sufficient to grant that relief? The court notes that no party raised these issues.
Footnote 3:Lepore did not testify that these were the only photographs that she had taken and she did not describe her motivation for taking these two. Neither counsel fleshed out this issue.
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