Esplanade Gardens Inc. v Gill

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Esplanade Gardens Inc. v Gill 2022 NY Slip Op 32771(U) August 1, 2022 Civil Court of the City of New York, New York County Docket Number: Index No. 71477/19 Judge: Karen May Bacdayan 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. INDEX FILED: NEW YORK CIVIL COURT - L&T 08/02/2022 08/01/2022 12:56 10:31 PMNO. AM NYSCEF DOC. NO. 41 26 LT-064229-18/NY [HO] LT-071477-19/NY RECEIVED NYSCEF: 08/02/2022 08/01/2022 CIVIL COURT OF THE CITY OF NEW YORK CO TY OF EW YORK: HOUSI G PART F Index ES PLAN DE GARDE S INC. o.71477/ 19 DECISION/ORDER Petitioner, Motion Sequence -against- os . I and 2 DA l [LLE GILL ET AL Respondent. HO KARE MAY BACDA YA , JHC Gullman Minrz Baker & onnenfeldt, PC (Angelo Ficcarata, Esq.), for the petitioner New York Legal Assistance Group (Kaitlyn May Fitzer, Esq.), for the respondent Recitation , as required by CPLR 2219 (a) or the papers con idered in review of this motion by YSCEF Doc o: Papers NYSCEF Doc Nos. Petitioner s motion seq. I and affidavits in support Petiti oner·s exhi bits 1-10 Respondent ' s opposition and cross-motion (seq. 2) and affidavits in support Respondent 's exhibits A-G Petitioner's opposition and reply and supporting documents Respondent's reply and annexed exhibits 1-7 8-17 I 9-21 22-2 8 30-3 4 36-38 PROCEDURAL HISTORY AND BACKGROUND This is a licensee holdover brought against the daughter of the shareholder in a limited income housing cooperative, Danielle Gill ("res pondent'). Petitioner has moved for summary judgment based on a Department of Housing, Preservation and Development ("HPD ") determination. that found that respondent is not entitled to succession of her mother's shares and cooperative apartment. This determination, made upon review of documentary evidence, was uph eld on appeal as having a rational basis. (Gill v New York City Dep 't of Housing Preservation and Development, et al, Sup Ct, New York County, Sept. 28, 2019, Wan, J. , index 101110/18.) [* 1] 1 of 4 o. INDEX FILED: NEW YORK CIVIL COURT - L&T 08/02/2022 08/01/2022 12:56 10:31 PMNO. AM NYSCEF DOC. NO. 41 26 LT-064229-18/NY [HO] LT-071477-19/NY RECEIVED NYSCEF: 08/02/2022 08/01/2022 Petitioner moves to strike respondents defenses and counterclaims and for summary judgment and use and occupancy. (NYSCEF Doc o. 5, motion seq uence 1.) Petitioner argues that respondent is a licensee whos license expired with "the departure of the prior shareholder of record" and that, as this decision was upheld by the supreme court, re pondent's succession rights cannot be re-litigated in housing court. Petitioner believes that Cheryl Gill permanently vacated the premises in 2013 after purchasing a home in New Jersey and that the proceeding is not her primary residence. (NYSCEF Doc 11 ; YSCEF Doc o. 6, petitioner's attorney 's affirmation in support~ o. 13 , petitioner' s exhibit 6, certificate of eviction .) Respondent cross-moves for summary judgment and dismi ssal of the petition pursuant to CPLR 3211 (a) (7) as petitioner has no cause of action against respondent, and pursuant to CPLR 3211 (a) (10) on the basis that Cheryl Gill, the holder of the shares to the apartment is a necessary party to the proceeding without whom full relief cannot be granted. Respondent states uneq uivocally that she is no longer claiming succession rights to the cooperative apartment. (NYSCEF Doc No. 20 , respondent's attorney's affirmation~ 20.) Inde d, respondent's answer asserts no claim to succession. Respondent further defends that Cheryl Gill has " not vacated or surrendered her interest in the subject apa rtment ... nor has there been a termination of the shareholder of record ' s tenancy. " ~ YSCEF Doc o. 26, respondents exhibit E, verified answer 17-18.) It is not disputed that in January 2009, respondent's mother, Cheryl Gill , purchased 66 shares of stock in Esp lanade Gardens, Inc. (NYSCEF Doc o. 8, petitioner 's exhibit 1, stock certificate.) Nor is it disputed that Cheryl Gill ' s shares have not been transfened or disposed of in any manner. T he stock certificat ·•incorporates Article VI I of bylaws which governs sale [and) disposal of shares.'· The by laws were not provided by either party. However. Article VII of occupancy agreement states: The Company and member ac h agrees not to selL redeem, purchase, retire. pledge. alienate or otherwi se dispose of any stock of the Company without prior written consent of the Hou ing and Redevelopment Board of The Cit y of New York . In the event said con ent of the Housing and Red eve lopment Board of The C ity of ew York ha been obtai ned , then this Agreement the Member's right of occupancy and his stock in the Company shall be f-irsl offe red to the Company for the aggregate sum which the Member paid for sa id stock. [* 2] 2 of 4 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/02/2022 08/01/2022 12:56 10:31 PMNO. AM NYSCEF DOC. NO. 41 26 LT-064229-18/NY [HO] LT-071477-19/NY RECEIVED NYSCEF: 08/02/2022 08/01/2022 DISCUSSIO No certificate of eviction has issued as against Cheryl Gill on the basis that the apartment is not her primary residence in vio lati on of her occupancy agreement. There has been no final determination as to Cheryl Gill's primary residence made by e ither HPD or a court of competent jurisdiction after appeal as against Cheryl Gill. Supreme court merely determined that HPD's failure to give succession rights to respondent was rational. To the extent that supreme court discussed Cheryl Gill's primary residence, it did so only in the context that respondent had not demonstrated that she had lived with h r mother for the requisite period as her primary residence because she had fai 1 d to establish when her mother vacated the apartment. As stated in that decision: " [HPD] determined that the petitioner failed to pro ve through sufficient, credible and reliable evidence when her mother permanently vacated the apartment, and therefore, petitioner failed to prove the required co-residency with the tenant to obtain succession rights (emphasis added)." (NYSCEF Doc No. 14, petitioner's exhibit 7, motion sequence 1 at 4.) Indeed, whi le petitioner may well be ab le to prove that the subject premises is not Cheryl Gill's primary residence and that he cannot cure this breach, it has not y t done so . At the very least there are issues of fact precluding summary judgment in favor of petitioner. However, petitioner's entire cause of action fa ll s on another ground. It is not "implicit" as petitioner orally argued, that it can now proceed to housing court to evict respondent a a licensee of Cheryl Gill without first properly obtaining possession as against the shareholder. Any housing court proceeding against Cheryl Gill for eviction based on non-primary residence would have to be predicated on a certificate of eviction for her eviction, which, in turn, would have to be issued after finding at HPD that the subject premises was not her primal)' residence. A license proceeding agai nst respondent in housing court would require petitioner to demonstrate that the ·' lice nsor is no longer entitled to possession of the property ." (RPAPL 713 [7].) As staled in Wong v Gouverneur Gardens Haus. Corp. , 308 AD2d 301 , 304- 05 (1 st Dept 2003): "[The] New York City Rules and Regulations (City Rules) contain detailed procedures for termination proceedings before HPD , mandating a preliminary notice of ground for eviction, an administrative hearing, an issuance of a certificate of eviction if such grounds are upheld and the right to review by way of a CPLR article 78 proceeding . . . . Additionally, under the City Rules , cooperatives and landlords under the Mitchel l-Lama program [* 3] 3 of 4 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/02/2022 08/01/2022 12:56 10:31 PMNO. AM NYSCEF DOC. NO. 41 26 LT-064229-18/NY [HO] LT-071477-19/NY RECEIVED NYSCEF: 08/02/2022 08/01/2022 are expre 'sly proh ibit d from commencing an eviction proceed ing based upon a holdover or a breach of lease un less a certificate of eviction issued by HPD is obtained (2 8 RC Y § 3- l 8[a]). It is obvious, therefore, that the admini strative schem e at issue in this case contemplates ini tial review by HPD (see Sohn v. Calderon, 78 . Y.2d 755 , 767 , 579 N. Y.S.2d 940 , 587 1 .E.2d 807 [instance where eviction proceedin gs may be commenced on ly after agency-issued certificate of evictions, and where review is limited to article 78 proceed ings, evince a legislati ve intent to have such cases determined by the agency in the first instance] (citations from the original)." The court finds that not only is Chery l Gill a necessary party to this proceed ing, but also that a licensee proceeding against Dani elle Gill is improper until petitioner has possession of the apartment from Cheryl Gill and the shares held by her which are allocated to that apartment. co According ly, it is ORDE RED that petitioner 's motion for summary judgment is DE IED; and it is furth er ORD ERED that respondent' s m otion is GRA TED and this proceeding is dismissed for failure to name a necessary party. The court need not consider petitioner' s remaining arguments . This constitutes the decision and order of this court. Dated: August 1, 2022 ew York, Y Soantered:~ . kl2- ;; . ·• Hon. Karen M a y ~ HON. KAR EN MAY BACDAYAN Judge, Housing Part [* 4] 4 of 4

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