OH 161st St. LLC v Brooks

[*1] OH 161st St. LLC v Brooks 2019 NY Slip Op 29040 Decided on February 19, 2019 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 subject to revision before publication in the printed Official Reports.

Decided on February 19, 2019
Civil Court of the City of New York, Bronx County

OH 161st Street LLC, Petitioner,

against

Barry Brooks, Respondent, ROSA DEJESUS, "JOHN DOE " and "JANE DOE ", Respondents-Undertenants.



028870/2018



Jason D. Boroff and Associates, PLLC, by David Lee, Esq. for the Petitioner

The Legal Aid Society, by Vanessa Adegbite, Esq. for the Respondent-Brooks
Karen May Bacdayan, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion:

Papers Numbered

Notice of Motion, Affirmation, and annexed Exhibits 1

Affirmation in Opposition and annexed Exhibits 2

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

PROCEDURAL POSTURE AND FACTS

This is a holdover proceeding brought against Respondent, Barry Brooks ("Respondent"), on the grounds that he is violating a substantial obligation of his rent-stabilized tenancy. Mr. Brooks lives in state-funded supportive housing for people with psychiatric disabilities and substance abuse problems. Petitioner claims that Respondent routinely violates the visitors' policy contained in the agreements which govern his tenancy by allowing Rosa DeJesus ("Ms. DeJesus"), to reside in the premises.[FN1] Respondent claims that Ms. DeJesus does not reside in the subject premises; rather, she "frequently spends the night in [Respondent's] home. Whenever she revisits, she always signs her name in the guest book which is required for [*2]those who do not permanently reside in the subject premises." (Affirmation of Respondent's counsel at 8.)[FN2]

Respondent moves to dismiss the proceeding pursuant to CPLR 3211 (a) (7) for Petitioner's failure to state a cause of action. In her affirmation, Respondent's attorney frames her argument and states that the visitors' policy found in the residency agreement unlawfully restricts Respondent "from hosting overnight visitors in his home" in violation of Section 235-f of the Real Property Law.[FN3] (Affirmation of Respondent's counsel at 13.) Respondent's argument is further elucidated in his proposed late answer: "Petitioner's occupancy restriction is against public policy pursuant to N.Y.R.P.L. 235-f . . . as it unfairly restricts visitation to two and a half days out of the week." (Proposed late answer at 1 and 3.) Respondent also argues that the visitors' policy "is an infringement of the Respondent's First Amendment rights pursuant to the United States of America Constitution." (Affirmation of Respondent's counsel at II.) In the alternative, Respondent seeks leave to serve a late answer asserting the defenses above, as well as breach of the warranty of habitability (RPL § 235-b), along with counterclaims for damages pursuant to RPL 235-b, for an order to correct violations in the apartment pursuant to sections 110 (c) of the Civil Court Act and 27-2121 of the Administrative Code of the City of New York, and for attorneys' fees.

Petitioner opposes Respondent's motion by stating that the visitors' policy does not violate the roommate law (affirmation of Petitioner's counsel at 10), and that the policy is constitutional as the state has a compelling interest in limiting visitation in this supportive housing facility, and that the policy accomplishes this goal and is not unduly burdensome. (Affirmation of Petitioner's counsel at 17.) Neither Mr. Brooks nor Ms. DeJesus has submitted an affidavit; nor has Respondent submitted papers in reply. Oral argument was heard on January 31, 2019.

DISCUSSION

In evaluating Respondent's request for dismissal under CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction. (Leon v Martinez, 84 NY2d 83, 87-88 [1984]; see also CPLR 3026.) "The facts as alleged in the [petition]" must be accepted as true, the Petitioner must accorded "the benefit of every possible favorable inference," and the court may "determine only whether the facts as alleged fit within any cognizable legal theory." (See id. at 88.) "Dismissal of the complaint is warranted if the [petitioner] fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] [internal citations omitted]). When evidentiary material is submitted in support of an application under CPLR 3211 (a) (7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977].)

RPL 235-f — The Roommate Law

The roommate law was enacted as part of the Omnibus Housing Act of 1983 in response [*3]to courts that "refus[ed] to extend the protection of the human rights law to unrelated persons sharing a dwelling." (L 1983, ch 403, § 1.) The law is designed to prevent evictions of residential tenants who have nontraditional living arrangements with co-occupants of the apartment for reasons of economy, safety, and companionship. (Id.)

RPL § 235-f, which is entitled "Unlawful Restrictions on Occupancy," provides, in pertinent part:

"It shall be unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy. . . . Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void."

A roommate is a person, "other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." (RPL § 235-f [1] [b].) Roommates may not succeed to a rent-regulated tenancy, and so differ from traditional or non-traditional immediate family members in that way. [FN4] A roommate is also different from a guest, "who is temporarily received and entertained at one's home but who is not a regular occupant." (Hon. Gerald Lebovits, Roommates in New York Law, 34 NYSBA NY Real Property Law Journal 73 [Fall 2006], available at https://works.bepress.com/gerald_lebovits/73/ [last accessed Feb. 12, 2019]; see also Black's Law Dictionary [10th ed 2014], guest) [Note: online version].)

The relationship that the statute intends to govern is not the one restricted by Petitioner's visitors' policy. Visitors and guests are not roommates and do not qualify as permitted occupants under the statute. A roommate is a long-term co-occupant of an apartment with the lease-holder, with whom the entire living area is shared. (Brookford, LLC v Penraat, 47 Misc 3d 723, 733 [Sup Ct, NY County 2014] [internal citations omitted].) "[The roommate law] contemplates that the occupant reside in the apartment together with the tenant." (150 E. 3rd St. Assocs. v Harper, 1990 NY App Div LEXIS 16874 [App Term, 1st Dept, April 25, 1990, No. 90-352].)

It follows that courts have found in the context of illegal sublet proceedings that where a tenant no longer lives in the apartment because they are either incarcerated,[FN5] or have been temporarily reassigned for work,[FN6] even though the apartment may still be a tenant's primary [*4]residence, they are not protected by the roommate law because they do not share or reside in the apartment with the occupant.

Ms. DeJesus is a guest. As previously stated, she visits often, "frequently spend[ing] the night in [Respondent's] home. Whenever she revisits, she always signs her name in the guest book which is required for those who do not permanently reside in the subject premises." (Affirmation of Respondent's counsel at 8.) Respondent himself confirmed at oral argument that Ms. DeJesus does not live with him in his apartment and alternately stays elsewhere.

While this court may have found otherwise had Respondent argued and the facts had supported that Ms. DeJesus shares and resides in the apartment together with Respondent, based on Respondent's submissions and statements, RPL § 235-f is inapplicable to the case at bar because it does not protect Respondent from having visitors in violation of a visitors' policy. Thus, Respondent's motion to dismiss the proceeding for Petitioner's failure to state a cause of action because the visitors' policy upon which Petitioner bases its claim is in derogation of the occupancy protections set forth in section 235-f of the Real Property Law is denied.

Respondent's Constitutional Claim

Respondent asserts through his attorney, unsupported by his own affidavit, that the visitors' policy set forth in the lease and the residency agreement violates his First Amendment right of association.[FN7] It is not clear from Respondent's attorney's affirmation whether the policy is being challenged as facially invalid, or as it is applied to him. A successful facial challenge to the constitutionality of the visitors' policy would invalidate the policy in its entirety on the basis that every application would be unconstitutional; a successful as-applied challenge would find the policy unconstitutional as it is applied to the particular facts of Respondent's case. As has been explained by the Appellate Division in the First Judicial Department:

"A 'facial challenge' to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual. An 'as-applied challenge,' on the other hand, requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right."

(Real Estate Bd. Of New York, Inc. v City of New York, 165 AD3d 1, 9 n 3 [1st Dept 2018], quoting Field Day, LLC v County of Suffolk, 463 F 3d 167, 174-175 [2d Cir 2006].)

Courts should make a finding of facial invalidity sparingly and in exceptional circumstances. (See Ayotte v Planned Parenthood of N. New England, 546 US 320, 328-30 [2006] [discussing the preference for "as-applied" challenges].) In Washington State Grange v Washington State Republican Party (552 US 442 [2008]), the Court stated that facial challenges to a statute's constitutionality are disfavored. "[A] plaintiff can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under which the Act would be valid', i.e., that the law is unconstitutional in all of its applications." (Id. at 449, quoting United States v Salerno, 481 US 739, 745 [1987]; Amazon.com, LLC v New York State Dept. of Taxation & Fin., 81 AD3d 183, 194 [1st Dept 2010], affd sub nom. Overstock.com, Inc. v. New York State [*5]Dept. of Taxation & Fin., 20 NY3d 586 [2013].).

To the extent that Respondent is arguing that the visitors' policy is facially invalid, the court finds that the policy on its face is not so vague or overbroad that every imaginable application would be unenforceable, a scenario which Respondent, in any case, has not specifically argued or articulated. Moreover, the Court cannot rely on the cases cited by Respondent to find that Petitioner's visitors' policy is violative of the First Amendment on its face. The courts in both McKenna v Peekskill Housing Authority (647 F2d 332 [2d Cir 1981]) and Hempstead Village Housing Associates v Pitts (37 Misc 3d 1211[A], 2012 NY Slip Op 51993[U] [Nassau Dist Ct 2012]), employed an "as-applied" analysis. In McKenna, the Court of Appeals for the Second Circuit overturned the District Court's grant of summary judgment to the defendant housing authority on the tenants' facial challenge to a visitors' policy by finding that the rule "was applied" by the housing authority in a manner that violated the tenants' constitutional rights and remanded the proceeding for a hearing on damages. (McKenna, 647 F2d at 334.) In Pitts, the District Court of Nassau County found an infringement of the plaintiffs-tenants' constitutional rights "based on the manner in which the [the visitors policy had] been applied." (Pitts, 2012 NY Slip Op 51993[U], *2.)[FN8]

To the extent that Respondent is arguing that the policy, as it is applied to him, violates his First Amendment right of association, his challenge must fail on this motion to dismiss. Without an affidavit setting forth facts by someone with personal knowledge of the policy's application, such an analysis is unfeasible. Thus, this court declines to make a finding as to the constitutionality of the policy as applied to Respondent.

Respondent's Motion for Leave to Serve a Late Answer

Respondent's motion for leave to serve a late answer and to deem the proposed answer served and filed is granted with the exception of Respondent's first affirmative defense which is stricken having been decided herein. Respondent's other proposed defenses and counterclaims are preserved for trial to enable him to receive the full benefit of counsel. (CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934 [1978]; Harlem Restoration Project v Alexander, 1995 NY Misc LEXIS 783 [Civ Ct, NY County, July 5, 1995].)

CONCLUSION

The parties are directed to appear in court on March 14, 20l9 at 9:30 a.m. for settlement or trial. Copies of this decision are being mailed to the parties.

This constitutes the Decision and Order of this Court.

Dated: February 19, 2019

Bronx, New York

SO ORDERED:

_____________________________

HON. Karen May Bacdayan

Judge, Housing Part Footnotes

Footnote 1:The "Residency Agreement" cited in Petitioner's Notice of Termination and attached to its opposition papers at Exhibit F upon which both Petitioner and Respondent focus their arguments states, "[o]vernight visitations are permitted from Friday night until Sunday Evening. All overnight visitors must leave the facility by 6pm." The court notes that, while not relevant to this decision, the Notice of Termination states that visitors must leave the facility by 11 a.m. on Sunday morning.

Footnote 2:At oral argument, during which Respondent was present, Respondent and his attorney confirmed on the digital record that Ms. DeJesus does not live with him in his apartment and alternately stays elsewhere.

Footnote 3:RPL 235-f is commonly known as "the roommate law."

Footnote 4:In her affirmation at paragraphs 6 and 7, Respondent's attorney states that, upon information and belief, Respondent has been in a "romantic relationship" with Ms. DeJesus for several years, that he refers to her as his "wife," and that they "share children together." While Respondent does not argue that Ms. DeJesus is entitled to reside in the premises a member of Respondent's immediate family, had he made this argument these unsupported assertions are inadequate to make such a finding. (See Braschi v Stahl Asocs. Co., 74 NY2d 201 [1989].)

Footnote 5:See Chris-Mac Co. v Johnpoll, 134 Misc 2d 597, 598 (App Term, 1st Dept 1987) ("Thus, even accepting tenant's assertion that he and [the occupant] lived together in the apartment at one time, their present arrangement, however interpreted, is not one covered by Real Property Law § 235-f, which was enacted to extend protection to unrelated persons sharing a dwelling [and] contemplates that the occupant reside in the apartment together with the tenant.").

Footnote 6:See East 72nd St. Assoc. v Menocal, 1986 NY Misc LEXIS 3162 (App Term, 1st Dept 1986) (reversing lower court summary determination pursuant to the roommate law where prime tenant, who was reassigned to Paris by her employer, allowed her cousin to stay in the apartment in her absence finding that "the statute was enacted to extend protection to unrelated persons sharing a dwelling, it contemplates, that the occupant reside in the apartment together with the tenant . . . .").

Footnote 7:Freedom of association is a fundamental right, implicit in the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. (See 20 NY NY Jur 2d, Constitutional Law § 288.)

Footnote 8:Lancor v Lebanon Housing Authority (760 F2d 361 [1st Cir 1985]), also cited by Respondent, concerns a policy in public housing requiring prior permission for overnight guests. This case provides this court with no guidance regarding Respondent's constitutional claims. The Lancor court "expressly decline[d] the invitation to decide the merits of [the] constitutional claims" in part because HUD regulations and guidelines "so clearly support [the tenant's] position that it [was] neither necessary nor appropriate . . . to reach the constitutional claims." (Id. at 363.)