Zevrone Realty Corp. v Cedano

[*1] Zevrone Realty Corp. v Cedano 2018 NY Slip Op 51495(U) Decided on September 20, 2018 Civil Court Of The City Of New York, Bronx County Bacdayan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2018
Civil Court of the City of New York, Bronx County

Zevrone Realty Corp., Petitioner,

against

Juanita Bello Cedano, Respondent, TEOFILO DELOSSANTOS, "JOHN DOE" & "JANE DOE" Respondents-Undertenants.



73146/2017



Hertz, Cherson & Rosenthal, P.C., for the Petitioner

Bronx Legal Services, by Sara E. Smith, Esq., for the Respondent
Karen May Bacdayan, J.

Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion, Affidavits, and Exhibits Annexed 1

Notice of Cross-Motion, Affidavits, and Exhibits Annexed 2

Affirmation in Opposition to Cross-Motion and Reply, and Exhibits Annexed 3

Affirmation in Reply and Exhibits Annexed 4

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows: BACKGROUND

This is a non-primary residence proceeding which alleges that Respondent Juanita Bello Cedano has not maintained her primary residence at the subject premises in violation of sections 2524.2 (c) (2) and 2524.4 (c) of the Rent Stabilization Code (RSC).

Petitioner served Respondent with a Notice of Intention Not to Renew Lease Due to Non-Primary Residence dated July 18, 2017. In the notice, Petitioner alleges the following facts:

"The facts to support the Landlord's belief that you does (sic) not reside in the Premises the majority of the time and that you maintain your primary residence at another unknown location are as follow: Your apartment is occupied by a Teofilo Delossantos, and unknown woman and child. None of the occupants are you. Your signature on the initial lease does not match how your name was signed on the most recent renewal leases.On or about May 5, 2017 you went to the offices of Langsam Property Services Corp., [*2]the management company managing the property for the owner, and met with one of the landlord's agents. The agent asked you for identification. You produced a NY State driver's license that expired August 22, 2014. You also produced a driver's license issued by the Commonwealth of Puerto Rico. That license was issued March 12, 2015 and expires on August 22, 2020. You advised the agent that you moved to Puerto Rico to take care of a sick relative ad that you would soon be returning to Puerto Rico with no plans on coming back to New York any time soon. You stated that the purposed of the visit to the agent's office was to add Teofilo Delossantos to your lease. The agent declined to add Teofilo Delossantos you your lease.As you have maintained your primary location at another location, you have not resided in the premises for a majority of the time (or at least 183 days per year)."

Petitioner moves for discovery and use and occupancy, and Respondent cross-moves for dismissal of the proceeding for Petitioner's "failure to state a cause of action due to the lack of specificity in the Notice of Intention Not to Renew." The motions are consolidated for disposition.

DISCUSSION

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v Martinez, 84 NY2d 83, 87 [1994]; Guggenheimer v Ginzburg (43 NY2d 268, 275 [1977] ["[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail."].)

Separately, a notice of nonrenewal alleging nonprimary residence must "state . . . the facts necessary to establish the existence of such ground." (Rent Stabilization Code [9 NYCRR] § 2524.2 [b]; see Berkeley Assoc. Co. v Camlakides, 173 AD2d 193 [1st Dept 1991], affd 78 NY2d 1098 [1991].) A satisfactory notice must include case-specific allegations that support a claim of nonprimary residence. (See eg Second 82nd Corp. v Veiders, 34 Misc 3d 130[A], 2011 NY Slip Op 52311[U] [App Term, 1st Dept 2011] [finding notice to have meaningfully apprised tenant of the "factual underpinnings" of the landlord's nonprimary residence claim].)Several factors, or factual underpinnings, are listed in the definitions section of the Rent Stabilization Code as evidence which may be considered in determining whether a housing accommodation subject to the RSC is occupied as a primary residence. (Rent Stabilization Code [9 NYCRR] § 2520.6 [u].) None of these factors are solely determinative, but they "shall" be included as factors in the analysis of a nonprimary residence claim. This section is cited primarily in decisions after trial, however it is useful to refer to when considering the elements of a nonprimary residence cause of action, and at least some of the factors which would "meaningfully apprise" a tenant of the facts underlying a landlord's claim of nonprimary residence.[FN1]

The elements that comprise factually sufficient predicate notices in nonprimary residence proceedings have been parsed by the courts. Notices that parrot the grounds for non-renewal of the lease are inadequate. (Berkeley Assoc. Co., 173 AD2d at 194 [holding that an allegation stating "you do not occupy the Premises as your primary residence" is not a statement of facts supporting the grounds for non-renewal].) Nor is it enough to simply state an alternate address where the tenant might primarily live; other case specific allegations that make out a cause of action must be pled. (Mak v Yun Pan Lee, 12 Misc 3d 142[A], 2006 NY Slip Op 51408[U] [App Term, 1st Dept 2006] [finding a notice that alleges tenant was living at another location without other case-specific allegations inadequate].) Regarding the temporal factor in a non-primary residence case, the language cannot be generic or conclusory, and it is not enough to allege that the tenant has not been seen at the premises for an extended period of time. For instance, in London Terrace Gardens, L.P. v Heller (40 Misc 3d 13 [A], 2009 NY Slip Op 52858[U], [App Term, 1st Dept 2009]), the Appellate Term considered the sufficiency of the following notice:

"th[e] tenant has not 'maintained an ongoing, substantial, physical nexus with the . . . premises for actual living purposes'; th[e] tenant has 'failed to spend more than 183 days out of the preceding year residing at the premises, as confirmed and substantiated' by unidentified building employees; and '[n]o building personnel [have] seen [tenant] at the subject premises for [more than] one year.'"

The court affirmed dismissal of the petition, holding that "[i]n such unparticularized form, the termination notice was too generic and conclusory to satisfy" the requirement that it set forth the facts necessary to establish the existence of a claim of nonprimary residence." (Id.; UVI Holdings LLC v Xiu Ling Ni, 28 Misc 3d 1209[A], 2010 NY Slip Op 51235[U] [Civ Ct, NY County 2010 [applying the holding of Heller to rent-stabilized apartments].)

The message from Heller is that it is not enough simply to state in a conclusory fashion which parrots the statute that the tenant has not maintained the premises as her primary residence for 183 days of the last calendar year, or to allege that the tenant has not been observed at the premises for an extended period of time. The message from Yun Pan Lee is that it is not enough to allege an alternate address without other case specifics which make out a cause of action.

Indeed, notices found to be sufficiently case-specific by the Appellate Term of this Department allege an alternate address or relocation of the tenant along with other case specifics regarding the length of the tenant's absence from the premises. (See eg First Ave. Props. v McLaughlin, 43 Misc 3d 149[A], 2016 NY Slip Op 51658[U] [App Term, 1st Dept 2016] [description of an alternate address as "the Island nation of Jamaica" found to be sufficient where notice also alleged that "management had not observed tenant at the subject apartment building for an extensive period of time"]; 82nd Corp. v Veiders, 34 Misc 3d 130 [A], 2011 NY Slip Op 52311[U] [App Term, 1st Dept 2011] [notice alleged specific street address of alternate residence, and alleged that landlord's employees have observed tenant at premises "once a month for less than a week each time"]; Kips Bay Joint Venture Assocs. v Pashazadeh, 2001 NY Slip [*3]Op 40302[U] [App Term, 1st Dept, Sept 21, 2001) [sufficient notice included statement that tenant resided at alternate address and "has not been seen at the subject premises on a daily basis for an extended period of time"]; Laufer v Malmuth, 1995 NY Misc LEXIS 765 [App Term, 1st Dept, Sept. 18, 1995] [notice is sufficient where it alleges that the tenant was residing at an alternate address and had improperly sublet the premises for the past two years]; 9th Realty Co. v Winter, 1991 NY Misc LEXIS 885 [App Term, 1st Dept, July 28, 1991] [notice is sufficient where it alleges tenant was residing at an alternate address, and is only seen at the building when picking up her mail] [internal quotation omitted].)

The non-renewal notice herein contains generic and conclusory allegations regarding the time-frame of the Petitioner's claim of the type held insufficient by the Heller and Camlakidies courts, to wit, "[a]s you have maintained your primary location at another location, you have not resided in the premises for a majority of the time (or at least 183 days per year)." Notably, this allegation even falls short of the inadequate language in Heller which alleged that the tenant had "'failed to spend more than 183 days out of the preceding year residing at the premises, as confirmed and substantiated' by unidentified building employees." (Heller, 40 Misc 3d 135[A], *1 [emphasis added].)

The Notice of Non-Renewal herein contains many details, but the details do not make out a cause of action for nonprimary residence. For instance, the notice alleges that the apartment is occupied by a specified individual and an unknown woman and child, and that "none of the occupants are you." These allegations sound in the present tense, and again do not assign even an approximate time-frame to the allegation that Respondent has not been using the premises as her primary residence.

The Notice alleges that Respondent visited the office on May 5, 2017 and stated to an unnamed agent that she had moved to Puerto Rico to an unspecified address to take care of a sick relative, and that upon request she exhibited an expired NY driver's license and a current Puerto Rico driver's license to the agent. However, the Notice does not say when she allegedly moved, or that she has not been seen at the premises, let alone for how long, or by whom. Moreover, the allegation that Respondent stated that she would be returning to Puerto Rico with "no plans of coming back to New York anytime soon" does not establish that she has not resided in the subject premises as her primary residence for at least 183 days of the last calendar year, but rather that some long absence upon which a non-primary residence claim could be based might occur in the future. In light of the notice's failure to give a time-frame, the temporal factor relating to Petitioner's nonprimary residence claim must be inferred and by definition is left to speculation and surmise.[FN2]

Petitioner opposes on the basis that the notice is "reasonable under the attendant circumstances." Here, the attendant circumstances include Petitioner's citation in its affidavit in support of its motion to an illegal sublet proceeding against Respondent which was later discontinued (Index No. 033965/2017). It is not clear why that proceeding was discontinued, or why an illegal sublet, one potential factor in a non-primary residence holdover, (Rent Stabilization Code [9 NYCRR] § 2520.6 [u]), is no longer alleged. Moreover, a review of that [*4]court file also reveals that the Notice to Cure in the discontinued illegal sublet case cited by Petitioner states, "[y]ou are no longer seen at the building or at your apartment." Notably, the Notice of Non-renewal in the instant proceeding, drafted three and a half months after the predicate notice in the illegal sublet holdover, is completely devoid of any such case-specific factual allegation. This certainly begs the question of why Petitioner chose not to allege that Respondent had been absent from the premises for a case-specific period of time over the last calendar year.[FN3]

CONCLUSION

Accordingly, the Petition is dismissed because the predicate notice fails to set out facts with sufficient particularity so as to satisfy the standards of the Rent Stabilization Code, or to state a cause of action for nonprimary residence. As such, the Court need not reach Petitioner's motion and it is denied as moot.

This constitutes the Decision and Order of this Court.

Dated: September 20, 2018
Bronx, New York
______________________________
HON. KAREN MAY BACDAYAN
Judge, Housing Part Footnotes

Footnote 1: Section 2520.6 (u) of the RSC states that "[a]though no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include, without limitation, such factors as listed below: (1) specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency; (2) use by an occupant of an address other than such housing accommodation as a voting address; (3) occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b)(2) of this Title; and (4) subletting of the housing accommodation."

Footnote 2:Even more given to speculation and surmise of the sort discouraged by appellate courts is the conclusory allegation that "the signature on the initial lease does not match how your name was signed on the most recent renewal leases."

Footnote 3:Regardless, defects or insufficiencies in a predicate notice cannot be subsequently cured, and the Petitioner is bound by the notice served. (Chinatown Apts. Inc v Chu Cho Lam, 51 NY2d 786 [1980]; Homestead Equities, Inc. v Washington, 176 Misc 2d 459 [Civ Ct, Kings County 1998].) As well, a predicate notice from a prior proceeding cannot serve as the basis for a subsequent proceeding. (Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573 [1st Dept 1990].)