George Units LLC v Stephenson

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George Units LLC v Stephenson 2020 NY Slip Op 32315(U) July 14, 2020 Supreme Court, New York County Docket Number: 151637/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY lAS MOTION 59EFM PART HaN. DEBRA A. JAMES PRESENT: Justice ______________________________________________________ ------,---------------- X INDEX NO. THE GEORGE UNITS LLC, 151637/2018 MOTION DATE Plaintiff, 01/14/2020 MOTION SEQ. NO. 002 -vMICHELLE STEPHENSON DECISION + ORDER ON MOTION and JACEL YN STEPHENSON, Defendants, ______________________________________________________ ----------------------- X The following e-filed documents, 24,25,26,27,28,29,31 listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, JUDGMENT-SUMMARY were read on this motion to/for The following e-filed documents, 37,38,39,40,41,42,43,44,45,46,47 listed by NYSCEF document number (Motion 003) 32, 33, 34, 35, 36, DISMISS were read on this motion to/for ORDER Upon the foregoing ORDERED justice, that this court, pursuant Order dated documents, it is sua sponte, to CPLR 5019(a), December resettles to dismiss (motion sequence and denied dismissal, without and such Order force and effect, and vacates 13, 2019 that deemed defendants' and motion copies, and in the interest number prejudice, is hereby and such motion of its opposition 003) withdrawn, for want of working rescinded and of no further is determined on its merits; and it is further ORDERED cross-motion, that the motion to dismiss of defendants, the complaint 151637/2018 GEORGEUNITSLLC va. STEPHENSON,MICHELLE Motion No. 002 003 1 of 15 designated (motion sequence as a number Page 1 of 15 j ; [*FILED: 2] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM NYSCEF DOC. NO. 55 INDEX NO. 151637/2018 RECEIVED NYSCEF: 07/15/2020 003) is granted initio, as to the third cause of action the renewal dismissed in its entirety; ORDERED and second Jacelyn lease", of defendants is granted that plaintiff's first cause of action action for quantum granted as against to dismiss against in its entirety; motion (motion sequence defendant Michelle defendant Jacelyn and it is further for summary for unjust enrichment meruit the first only as to defendant and the complaint shall be dismissed ORDERED shall be and it is further of action Stephenson, Stephenson and such cause of action that the motion causes to "void ab judgment and second number Stephenson on its cause of 002) is only; and it is further ORDERED to enter entirety and ADJUDGED that the Clerk of the Court judgment dismissing the and first second the defendant Jacelyn plaintiff and against $ 32,964.20, and Stephenson defendant plus interest this decision, and, together third cause causes granting Michelle of of action action judgment Stephenson at the statutory of an appropriate in summary judgment 151637/2018 GEORGE Motion No. 002 003 The George pursuant Units, LLC rate from the date of as taxed bill of costs. (landlord) moves for to CPLR 3212 on its first and second UNITS LLC vs. STEPHENSON, MICHELLE 2 of 15 of in the sum of DECISION Plaintiff, its against in favor with costs and disbursements the Clerk upon submission is directed Page 2 of 15 by [*FILED: 3] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 causes RECEIVED NYSCEF: 07/15/2020 of action, meruit, sounding respectively, occupation in unjust enrichment and an award of damages in the amount of $32,964.20 002) against both defendants, and quantum for use and (motion sequence Michelle Stephenson number and Jacelyn Stephenson. Defendants, oppose Michelle plaintiff's for summary motion dismissal Stephenson and Jacelyn for summary judgment of the complaint Stephenson, and (cross) move (motion sequence number. 003) . Background This case arises apartment Nicholas (the subject Avenue out of the lease of a rent-stabilized apartment), which is located at 1365 St. in Manhattan. Before May 1, 2017, the now late Jocelyn rent-stabilized tenant of record Stephenson for the subject was the apartment (Tenant of Record). Defendant Tenant Michelle Defendant of Record. granddaughter defendant of the Tenant Michelle In November proceeding Stephenson Jacelyn as her primary 151637/2018 GEORGE Motion No. 002 003 Stephenson of the is the of Record and the daughter of Stephenson. 2015, landlord commenced in Civil Court against that the Tenant is the daughter the Tenant of Record did not maintain residence a nonprimary of Record, the subject from October" 1, 2013 through UNITS LLC vs. STEPHENSON, MICHELLE 3 of 15 residence arguing apartment September Page 3 of 15 [*FILED: 4] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 Though 30, 2015. no copy of any Civil Court answer this court, plaintiff asserts, and defendants in their respective answers residence proceeding, Record hold-over remained of the hold-over payments the Tenant proceeding, for the subject After being notified nursing home and hearing do not deny, that to the Civil Court nonprimary in possession, rights to succeed is before each asserted that the Tenant or alternatively of Record. landlord of that each had With the commencement stopped accepting rent apartment. that the Tenant of Record the representation was in a of the appointed ) Guardian Ad Litem that the Tenant for the Tenant of Record intended apartment in late 2016, landlord residence proceeding. Landlord Court against Michelle Stephenson to assert the Tenant There then commenced the Tenant answered In January discontinued a nonpayment proceeding the nonpayment the nonpayment of Record nonpayment proceeding had passed VS. in Civil Defendant petition, to succeed under the lease for the subject 2017, defendants GEORGE UNITS LLC the nonprimary in the record that defendant the Tenant 151637/2018 to return to the subject her claim that she was entitled of Record, to the Civil Court of Record and defendants. answered is no evidence Stephenson of Record her mother, apartment. Jacelyn petition. advised away. and commenced STEPHENSON, continuing MICHELLE Motion No. 002 003 4 of 15 the Civil Court Landlord a licensee withdrew that the proceeding Page 4 of 15 [*FILED: 5] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 against defendants defendant Michelle Stephenson answered to claim that she was entitled subject Defendant apartment. never appeared accepted (succession lease) of $1,714.79, presiding the Tenant subject and signed, stipulation apartment Stephenson defaulted and defendant and lease at the monthly was so-ordered rent by the judge There was no dispute proceeding. since April Michelle renewal apartment for the last four months of Record, continuing the lease for the a two-year for the subject which that summary proceeding. offered, over the holdover that, except Jacelyn reflects the petition, to succeed in such holdover In May 2017, landlord Stephenson The record in Civil Court. of 2016 that were paid by 2015, no rent payments under the lease issued to the Tenant for the of Record were made. In September 2017, the licensee trial as to the issue of whether occupancy appear dating back to April at the scheduled which time landlord of $8,573.95 judgment against judgment award against 151637/2018 GEORGE was sent out for should pay use and Defendants failed trial date and an inquest and judgment Stephenson, defendants 2015. was awarded Michelle proceeding a money of possession and a judgment defendant Jacelyn defendant UNITS LLC VS. STEPHENSON, judgment against Michelle MICHELLE Motion No. 002 003 5 of 15 was held at in the amount defendant of possession Stephenson. to but no money The money Stephenson only was Page 5 of 15 [*FILED: 6] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 comprised of all rent then due and owing to landlord Michelle Stephenson's covering the time period beginning through September that accrued renewal 2017. before lease for the subject to apartment, May 2017 and continuing Landlord's the renewal pursuant claim for use and occupancy succession lease was severed, " without prejudice is undisputed judgment that defendant awarded In February seeking to landlord Michelle a plenary Stephenson 2018, landlord commenced from defendants, the unpaid lease with the Tenant for the period rent made at the end of 2016. instant motion standpoint, for summary plaintiff landlord Affidavit in Support, (see NYSCEF the record judgment served and filed on September April the four reflects (Motion Sequence that the 002) was 23, 2019, with the submission of its Notice of Motion and Memorandum by and Exhibits, of Law in Support Doc. Nos. 19-29), with a return of the date of 8, 2019. On October adjourning 151637/2018 the Practice From a procedural October under beginning payments Motion action due to landlord through April 2017, excluding of monthly proceeding. f~r use and occupancy rental amounts of Record It paid the money the instant 2015 and continuing Motion action. by the Civil Court in the licensee $32,964.20 representing commencing 23, 2019, the parties entered the return date of the motion GEORGE UNITS LLC vs. STEPHENSON, MICHELLE Motion No. 002 003 6 of 15 into a stipulation to November 13, 2019, Page 6 of 15 [*FILED: 7] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 and providing before that defendants October 30, 2019, defendants 003, seeking Submitted sought December dismissal with Motion law in opposition relief in Motion and deemed New York County Procedure Section Sua sponte counsel 003 with working denial and determine of of the (NYSCEF Doc. No. 40). On Sequence 003 without Sequence due to the failure (NYCEF of the defense copies as then required for Electronically 003 pursuant to Filed Cases of justice, has never re-filed copies, defendants' notwithstanding Motion Sequence this court shall vacate motion to dismiss such on its The court does so in light of the fact that all supporting, responsive electronically and plaintiff, of the submitted Given the Administrative Administrative GEORGE papers MICHELLE Motion No. 002 003 7 of 15 is in to submit (see CPLR Order of the Chief Judge of the Courts Number UNITS LLC vs. STEPHENSON, submitted therefore, by the failure of the defendants (hard) copies 5019[a]) and reply papers were timely on such motion, no way prejudiced 151637/2018 memorandum 002 and in support for Motion and in the interest Number working 003 complaint. D.5(a). that the defense merits. Sequence the papers to submit working Protocol on or Sequence landlord's 003 was a combined Sequence Doc. Nos. 32-46) withdrawn counsel of plaintiff Sequence to Motion filed Motion 13, 2019, the court denied Motion prejudice, papers 30, 2019. On October Number would file opposition 87/20 issued on May 1, Page 7 of 15 [*FILED: 8] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 2020, which dispensed with the filing of any and all working copies of papers in any civil action or proceeding court, it would be patently unfair and unjust deny the motion of defendants hyper-technical grounds, with the exigencies COVID19 to dismiss of this for this court to on procedural which have been rendered arising since the advent and anachronistic of the global pandemic. Discussion It is well understood limits the Court's resolving them. to provide role to finding Success the absence establishing on the motion (Sillman v Twentieth entitlement Century-Fox thus requires to judgment Film Corp., is that the party summary bears the burden of producing expressions of hope, or unsubstantiated insufficient for this purpose, triable issues of fact exist, granted (Zuckerman 64 NY2d 851 trial. opposing evidentiary to establish issues of fact requiring of 3 NY2d 395 well established of material ~o as a matter [1985J). Equally form that is sufficient the movant issues of fact, v New York Univ. Med. Ctr., in admissible to sufficient [1957J; Winegrad judgment judgment as opposed evidence of any triable the movant's for summary issues, the court with admissible demonstrate law that a motion proof the existence Mere conclusions, allegations are and if there is any doubt that summary judgment will not be v City of New York, 49 NY2d 557 151637/2018 GEORGE UNITS LLC vs. STEPHENSON, MICHELLE Motion No. 002 003 8 of 15 [1980J). Page 8 of 15 [*FILED: 9] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 Plaintiff landlord's first cause of action enrichment "lies as a quasi-contract obligation imposed absence by equity of an actual 19 NY3d 511 [2012] claim and contemplates to prevent agreement" for unjust injustice, marks in the & Co. v Reider, (Georgia Malone [internal quotation an and citations omittedJ) . To prevail landlord must plaintiff show that defendants landlord's good conscience" plaintiff on this cause of action, to permit landlord 569 defendants 220, which gives a landlord the use and occupancy agreement, LLC, 133 AD3d Nanjim Leasing Corp., on a cause of action plaintiff landlord 151637/2018 GEORGE Motion No. 002 003 which seeks an award of from Real Property of "real property, Law (RPL) ~ reasonable by any person, (RPL ~220; Carlyle, 510 [1st Dept 2015]; for under an LLC v Beekman Eighteen Assoc. LLC v 257 AD2d 559 [2d Dept 1999]). for use and occupancy to establish with acquiescence and occupancy and Inc. v U.S. upon the theory of quantum meruit, right in the subject premises; premises (id.; GFRE, the right to recover not made by deed" Garage equity [2d Dept 2015J). is derived grounded at the to retain what the second cause of action, use and occupancy, compensation, were enriched, and that it is "against seeks to recover Bank, NA, 130 AD3d Plaintiff's expense, plaintiff- by defendants To prevail thus requires (1) ownership or other (2) that defendants superior entered the (3) continuous use after entry into the premises; (4) of the landlord; UNITS LLC vs. STEPHENSON, MICHELLE Page 9 of 15 9 of 15 [*FILED: 10] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 proof or agreement occupancy; payment and as to the value of the reasonable (5) proof that plaintiff and defendants State Teacher's landlord use and demanded refused to pay the sum demanded Retirement Sys. v Huberty, 48 AD2d 741 the (New York [3d Dept 1975]). Plaintiff's the renewal improperly third cause of action forced Plaintiff plaintiff owing for the period overrule to issue a renewal a money judgment May 2015 through As it would be improper for another is taken from such order, April 2017". trial judge to must be dismissed1 312 in office, where no the third cause of action (see Public Service Mut. in Ins. Co. [1st Dept. 1977]). As for the first and second causes of action, undisputed due and or vacate the order issued by the first trial appeal 56 AD3d for arrears coordinate so long as the first judge remains its entirety lease without and including judge, v McGrath, that lease is void ab initio "as the civil court also granting disturb, seeks a declaration that the Tenant of Record occupied it is the subject lIn Strand Hill Associates v Gassenbauer, 41 Misc3d 53 (App Term, 2nd, 11th, and 13th Judicial Districts, 2013), the appeals court held that "Because a successor in interest is not a tenant until he becomes a party to a lease or rental agreement. .,and because tenant did not become a party to the lease until after the arrears sought had accrued, a nonpayment proceeding does not lie to recover these arrears. Thus, we affirm the order dismissing the petition without prejudice to landlord's commencement, if landlord be so advised, of a plenary action to recover the arrears." 151637/2018 GEORGE Motion No. 002 003 UNITS LLC VS. STEPHENSON, MICHELLE 10 of 15 Page 10 of 15 [*FILED: 11] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 apartment pursuant landlord. daughter to a valid lease issued by plaintiff At her deposition, of the Tenant the subject apartment that by January Document defendant includes apartment. She agreed Jacelyn apartment Michelle electric Stephenson (NYSCEF conditions mother, never paid the admits to residing Stephenson UNITS LLC vs. STEPHENSON, 11 of 15 defendant were made during for the of 2016 (id., tr at also admitted that at the lease offered MICHELLE services, in the apartment until the last four months the succession of Record, in early 2015 requiring and rehabilitative Michelle including with rent for the the Tenant subject Defendant and (id. at 21-22). and that no rent payments apartment of Record for the subject ever assisted Stephenson's Stephenson 151637/2018 GEORGE Motion No. 002 003 her son that none of her children, hospitalization time she signed apartment and Peyton this time period, 22-32) . into She also stated with her daughter and cable, prior to 2015 from health extensive Michelle Stephenson, When Michelle suffered that she moved Stephenson, Michael apartment defendant rent, which subject Jacelyn 2015, when the Tenant the subject grandchildren, Stephenson, 22, tr at 18-19). Prior to January cohabitated testified in 1970 and never left. and two grandchildren, Number defendant of Record, Michelle 2015, she was living in the subject with her daughter, Jonathan, defendant to her by plaintiff Page 11 of 15 [*FILED: 12] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 landlord, there was outstanding apartment under her mother's The record payment of the unpaid lease during demands reflects failed, landlord's that plaintiff demanded Civil Court proceedings without prejudice, (NYSCEF Document of Record's and when considered and that summary judgment by of this 25) . evidence in the record, of law, there are no triable Michelle Stephenson's in favor of plaintiff the first and second causes of action such defendant severed to the commencement the pertinent issues of fact as to defendant Plaintiff was ultimately Number this court finds that, as a matter against landlord due under the Tenant claim for use and occupancy action Having (id. at 43). sought an award of use and occupancy. the Civil Court, plenary lease amounts the various rent due on the subject is warranted liability, landlord on both set forth in the complaint (see Carlyle, LLC, supra, at 511-512) . It is undisputed continuously between in the subject April as of November issuing 2017. apartment lived for 20 of the 24 months rights 2015, which rights the landlord recognized by succession to the landlord 151637/2018 GEORGE Motion No. 002 003 Stephenson succession lease, in her name only, Thus, the use and occupancy amount Michelle 2015 and April 2017, and claimed a renewal Stephenson monthly that defendant owed by defendant must be calculated due under the now expired UNITS LLC VS. STEPHENSON, MICHELLE 12 of 15 based in May Michelle on the lease and deducting the Page 12 of 15 [*FILED: 13] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 four payments 2016 in September, (NYSCEF Document Perko, Term, made 10 Misc3d Number 146[A], 1st Dept 2006]; AD2d 730, 731 471, 472[lst 22) October, November, (see 217 E. 82nd St. Co. v 2006 NY Slip Op 50157[U] Eli Haddad Corp. v Redmond [1st Dept. 1984]; Mushlam, Dept 2011] while not necessarily ("the rent reserved conclusive, Studio, Associates v Dayan, against 80 AD3d of the of the premises); defendant MMB This amount, 169 AD2d 422 [1st Dept 1991]). is awarded 102 under the l~ase, is probative" value of the use and occupation landlord [Appellate Inc. v Nazor, reasonable which and December Michele Stephenson only, is $32,964.20. Inasmuch nature, 5001 as the award of use and occupancy an award of interest (CPLR 5001; Precision 2004] ) . Having and noting considered that plaintiff is discretionary is equitable pursuant Found. vIves, 4 AD3d the procedural history landlord's was severed from their claims immediately preceding 589 in to CPLR [3d Dept of this case claim for use and occupancy in the Civil Court action this action, interest is limited to accrue from the date of this decision. However, landlord has with not respect met defendant continuously since entrance her The deposition 151637/2018 GEORGE Motion No. 002 003 to its defendant burden used of Jacelyn demonstrating and occupied the subject with her mother, apparently testimony of defendant Jacelyn UNITS LLC VS. STEPHENSON, MICHELLE 13 of 15 Stephenson, upon that such apartment, her Stephenson birth. that she Page 13 of 15 [*FILED: 14] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM INDEX NO. 151637/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 left the subject college to apartment, earn a in August four-year thereafter remained and unrefuted. Such testimony evidence Statement deposition that is program employment buttressed alternative primary that ever issued never issued a money Stephenson This court Stephenson's of Financial any judge 2015 such remained succession a had rights renewal Moreover, in licensee the in Stephenson succession at nonprimary defenses Jacelyn that admitted of Record for rent as against disagrees holdover proceeding position at bar. meritorious Office lease on September holdover proceeding her mother, defendant only. succession as of November documentary pled defendant or judgment the Stephenson's the Tenant adj udicated, Court is to her and dated February she notes Civil out-of-state, by in her name or signed by her. the Michelle that that and of the November The court rights. was Jacelyn proceeding, or degree, 37). in defense resident, 6, 2017, Number in her Answer succession addressed defendant hold-over residence defense obtained of Account (NYSCEF Document It is true her undergraduate in the form of the Howard University, Services, 3, 2016 2014, when she went away to defense plaintiff that defendant rights defense to the nonprimary in November Rather, 2015, with having defendant of 2015 is inconsistent left for college Jacelyn succession Stephenson rights, which Jacelyn residence with her in August 2014, clearly had a at the current Page 14 of 15 151637/2018 GEORGE UNITS LLC vs. STEPHENSON, MICHELLE Motion No. 002 003 14 of 15 [*FILED: 15] NEW YORK COUNTY CLERK 07/15/2020 05:01 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/15/2020 time, she no longer asserts, out of state. Plaintiff defendant having has not evidence of occupancy of the subject apartment. Jacelyn remained come Stephenson's deposition testimony, old, in August continually, apartment matriculated Hughes state, college, intermittently grandmother/Tenant of in (in she has v Lenox Hill Hosp., CHECK IF APPROPRIATE: to f CASE DISPOSED D though not the visit subj ect her obtaining GRANTED D DENIED X TRANSFER/REASSIGN 151637/2018 GEORGE UNITS LLC vs. STEPHENSON, Motion No. 002 003 GRANTED SUBMIT MICHELLE 15 of 15 ~ ~#t RA~J D NON-FINAL SETTLE ORDER INCLUDES Jacelyn live in, but to currently t CHECK ONE: and ailing employment resides (see 226 AD2d 4 [1st Dept. 1996]). 7/14/2020 DATE APPLICATION: returning and use defendant and thereafter, part, resided facie at the age of 18 years of Record), and ultimately where prima continuous that she did not continuously 2014, to attend college, moved by her sworn, unrefuted from the subject apartment, only with In contrast, has come forward with evidence, removed herself and ultimately forward Stephenson out INDEX NO. 151637/2018 DISPOSITION IN PART ORDER FIDUCIARY APPOINTMENT ME~. 1 ~ D D OTHER REFERENCE Page 15 of 15

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