2701 Grand Assoc. LLC v Encarnacion
Annotate this CaseDecided on January 24, 2019
Civil Court of the City of New York, New York County
2701 Grand Associates LLC, Petitioner-Landlord,
against
Julio Encarnacion SONIA ENCARNACION, Respondents-Tenants, and "JOHN DOE" and "JANE DOE," Respondents-Undertenants.
L & T 49083/17
Attorney for Petitioner: Candace C. Carponter, Esq., and Elissa Waltz, Esq., The Law Firm of Candace C. Carponter, P.C., 31 Smith Street, Second Floor, Brooklyn, New York, 11201.
Attorney for Respondent: Nicole Kalum, Esq., Bronx Legal Services, 349 East 149th Street, 10th Floor, Bronx, New York, 10451.
Bernadette G. Black, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion for dismissal and for summary judgment.
Papers/Numbered
Notice of Motion 1
Affirmation in Opposition 2
Supplemental Affirmation in Opposition 3
Affirmation in Reply 4
Petitioner commenced this summary holdover proceeding in September 2017 seeking a judgment of possession for the rent-stabilized premises, 2701 Grand Concourse, Apartment 2A, Bronx, New York, upon the allegation that respondents substantially violated their rental lease agreement by illegally altering the apartment, subletting and/or assigning the premises without prior written permission, harboring roomers and illegally profiteering by overcharging the unauthorized occupants.
Previously, respondent Sonia Encarnacion ("respondent"), by counsel, filed a motion to interpose an answer and for summary judgment, and petitioner moved for an order directing respondent to pay use and occupancy. Following review of the papers submitted, including respondent's sworn affidavit and documents presented, and noting that petitioner's opposition papers were not supported by any statement of a party with personal knowledge of the facts or documentary evidence, the court granted respondent's motion for summary judgment except as to the illegal profiteering claim because neither party addressed that issue. The court denied petitioner's motion for use and occupancy without prejudice and set the matter for trial on petitioner's illegal profiteering claim, the sole remaining cause of action.
In the motion presently before the court, respondent moves for an order pursuant to CPLR § 3211(a)(7) to dismiss the petition for failure to state a cause of action and moved a second time for summary judgment pursuant to CPLR § 3212(b) on the remaining claim. For the reasons stated below, the court denies the motion.
When deciding a motion to dismiss a petition for failure to state a cause of action pursuant to CPLR § 3211(a)(7), all of petitioner's allegations, including the facts stated in the Notice to Cure, incorporated by reference into the petition, must be accepted as true and must be liberally construed in favor of petitioner. Leon v. Martinez, 84 NY2d 83 (1980); Chelsea 18 Partners LP v. Sheck Yee Mak, 90 AD3d 38, 43 (1st Dept. 2011); RAM 1 LLC v. Mazzola, 2001WL 1682829 (App. Term 1st Dept.). Petitioner alleges that without its permission, respondent illegally created Single Room Occupancy("SRO") units in the apartment by constructing at least three walls, creating three or four additional rooms, installed water and waste lines to accommodate an additional shower, and a toilet and sink basin in one of the rooms, and that respondent's alterations caused the Department of Buildings ("DOB") to place violations and charge fines to petitioner. Petitioner further alleged that respondent was renting rooms without permission and overcharging the unauthorized subtenants in violation of the Real Property Law and the Rent Stabilization Code. "In evaluating the facial sufficiency of a predicate notice in a summary proceeding, the appropriate test is one of reasonableness under the circumstances." Oxford Towers Co., LLC v Leites, 41 AD3d 144 (1st Dept. 2007). Under the circumstances presented here and viewed in the light most favorable to petitioner, the court finds that the petitioner sufficiently states a claim for illegal profiteering.
Further, the court must deny respondent's second motion for summary judgment. "Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause." Vinar v. Litman, 110 AD3d 867, 868 (2nd Dept. 2013); see also, Amill v. Lawrence Ruben Co., Inc., 117 AD3d 433(1st Dept. 2014); Jones v. 636 Holding Corp., 73 AD3d 409 (1st Dept. 2010). Respondent provides no new information or legal basis to grant the relief sought. However, even if the court were to entertain respondent's second summary judgment motion, petitioner here presents in its opposition to respondent's motion the detailed sworn affidavit of its managing agent, Eddie Azizi, directly contradicting respondent's denials. Petitioner also provides supporting documentation, including copies of an additional violation notice from the DOB, allegedly still unresolved, specifically detailing the alterations, including five SRO's each with separate locking devices, and the weekly rents charged to the occupants at the premises, the $1200 penalty assessed against petitioner for the violations, and hand-drawn pictures of the altered apartment as evidence of the basis for the [*2]illegal profiteering claim [FN1] . Based upon the foregoing, the court denies respondent's motion and the proceeding is restored to the calendar for trial on February 25, 2019 at 9:30 A.M. upon the illegal profiteering claim. This constitutes the decision and order of the court.
Dated: January 24, 2019
Bronx, New York
______________________________
BERNADETTE G. BLACK, J.H.C. Footnotes
Footnote 1:Mr. Azizi also claims that upon further investigation he discovered that respondents Sonia Encarnacion and Julio Encarnacion had been sued for nonpayment of rent at another rent-stabilized apartment less than two blocks from the subject premises. Petitioner also provided copies of the court file notice of petition and petition dated December 22, 2016, alleging rent arrears from October 2016 to December 2016 at that alternative residence, approximately one year prior to commencement of this holdover proceeding.
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