357 Realty Corp. v Franco

[*1] 357 Realty Corp. v Franco 2023 NY Slip Op 23284 Decided on September 20, 2023 Civil Court Of The City Of New York, New York 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 September 20, 2023
Civil Court of the City of New York, New York County

357 Realty Corp., Petitioner,

against

Kendry Franco, Respondent.



Index No. LT-310457-23/NY


Rosenblum & Bianco, LLP (Eric Andrew Abramson, Esq.), for the petitioner

Kendry Franco, self-represented respondent Karen May Bacdayan, J.

Recitation of documents considered on this motion by NYSCEF Doc No.: 5-10.

PROCEDURAL POSTURE AND BACKGROUND

This is a licensee holdover proceeding. The notice to quit alleges that Kendry Franco ("respondent") advised petitioner that he is the grandson of the tenant of record, Jose Rodriguez, who died on June 6, 2020. (NYSCEF Doc No. 1 at 4, notice to quit.) The renewal lease, signed by Rodriguez, expired on February 28, 2022. Petitioner commenced this proceeding on May 24, 2023, by filing a notice of petition and petition. (NYSCEF Doc Nos. 1-2, notice of petition and petition.) The proceeding first appeared on the court's calendar on June 22, 2023, and was adjourned to September 14, 2023 for respondent to seek counsel. On August 31, 2023, petitioner filed a motion for use and occupancy pendente lite. (NYSCEF Doc No. 5, notice of motion [sequence 1].)

Petitioner argues that "[e]ven if the court were to not find the instant facts applicable to RPAPL 745, there also exists an equity basis distinct from RPAPL 745" to award use and occupancy. (NYSCEF Doc No. 6, petitioner's attorney's affirmation ¶ 11.) Petitioner cites to Lucille Clark HDFC, Inc. v Ng, Civ Ct, New York County, May 22, 2022, Finkelstein, J., Index No. 300183/23 in support of its argument, which, in turn, cites to Findlay House, Inc. v Zhang Hongliu, 61 Misc 3d 644, 2018 NY Slip Op 28283 (Civ Ct, Bronx County 2018), a decision written and issued by this Judge. Petitioner further argues through its attorney that "[t]he equities in this proceeding also call for the payment of the back (sic) and the ongoing use and occupancy since the Petitioner should not be required to provide services to the [r]espondent for free during the duration of this proceeding." (NYSCEF Doc No. 6, petitioner's attorney's affirmation ¶ 26.) This relief for payment of retroactive use and occupancy was not sought in the notice of motion.[FN1] Accordingly, the court will first address petitioner's position that it need not refrain from filing a motion for use and occupancy during the first adjournment for counsel. Petitioner's [*2]unrequested relief will be considered in dicta.

DISCUSSION

It is this court's position that RPAPL 745 (2) as amended by L 2019, ch 36, § 1, part M, is the only vehicle for obtaining use and occupancy in a summary eviction proceeding during the pendency of the proceeding. RPAPL 745 (2) states in relevant part:

"In a summary proceeding upon the second of two adjournments granted solely at the request of the respondent, or, upon the sixtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, counting only days attributable to adjournment requests made solely at the request of the respondent and not counting an initial adjournment requested by a respondent unrepresented by counsel for the purpose of securing counsel, whichever occurs sooner, the court may, upon consideration of the equities, direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court's order, which may be established without the use of expert testimony (emphases added)."

Here, the parties first appeared in court on June 22, 2023 as a "new part" case.[FN2] Respondent was asked whether he wished to seek legal advice and/or counsel. Respondent answered in the affirmative, and the court — not respondent — adjourned the proceeding to September 14, 2023 to ensure respondent had the opportunity to seek legal advice and/or representation from the Universal Access to Counsel legal services provider-of-the-day.

RPAPL 745 (2) must be harmonized with Administrative Code of City of New York § 26-1302 (Universal Access to Counsel Act ["UAC"]) which passed in 2017 and uniquely and specifically applies to Housing Court. The Administrative Code charges the Department of Social Services ("DSS") Office of Civil Justice ("OCJ") to "establish a program to provide access to legal services for covered individuals in covered proceedings in [H]ousing [C]ourt and shall ensure that (emphasis added) . . .

1. all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable (emphasis added); and2. all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable (emphasis added)."[FN3](Id.)

OCJ has established such a program pursuant to the Administrative Code § 26-1302 (1) and (2). Each legal services provider has its own system, but all systems provide for 1) an initial intake with a provider in person on the first appearance in court, 2) further evaluation and information gathering thereafter, and 3) the assignment of cases to attorneys as their capacity [*3]permits. RPAPL 745 (2), amended in 2019, specifically contemplates one adjournment to enable a respondent to seek counsel, and these days are not to be "counted" when calculating "the sixtieth day" upon which a petitioner may file a motion for use and occupancy. (Id.) In this important way, UAC and RPAPL 745 (2) complement each other.

Finally, the proceeding has been adjourned only once; and while lengthy, the adjournment was at the behest of the court in order to control its calendar. (See Hochberg v Davis, 171 AD2d 192, 194 [1st Dept 1991] ["[C]ourts have an inherent power over the control of their calendars and the disposition of business before them."]) Along with its own calendar, the court must balance the competing interests of the Office of Civil Justice, the Office of Court Administration, legal services providers, landlords, and tenants alike. Were adjournments for seeking counsel shorter, older cases with litigation histories which receive shorter dates would be pushed out further (much to the chagrin of petitioners); and legal services providers, already unable to take every eligible case, would be unable to complete their intake process prior to the second court appearance (to the detriment of litigants seeking counsel and advice).

Here, the court has considered the equities as prescribed by RPAPL 745 (2). The court has weighed any prejudice to petitioner from the temporary statutory pause required by RPAPL 745 (2) prior to filing a motion for prospective use and occupancy against the prejudice to respondent were he to be deprived of an adjournment to confer with or retain legal counsel prior to being subject to a rent deposit order. Balancing the equities, petitioner's motion is denied as premature and contrary to statutory proscriptions.

While petitioner did not properly notice its request for past due use and occupancy, and in this courtroom the notice of motion controls, see n 1, supra, the court will briefly address the issue and as a matter of dicta. Petitioner's reliance on an unpublished decision by a judge of concurrent jurisdiction which cites to Findlay House, Inc. v Zhang Hongliu, 61 Misc 3d 644, 2018 NY Slip Op 28283, is misplaced. Zhang Hongliu ("Hongliu") lived in a Mitchell-Lama coop. Her partner passed away, and she claimed succession rights to the apartment. The similarities between Hongliu and this proceeding end there. The decision in Hongliu was issued on August 31, 2018, prior to the passage of the Housing Stability and Tenant Protection Act of 2019 ("HSTPA").

Unlike the instant proceeding, Hongliu sought a stay of the Housing Court proceeding pending a determination from DHCR on her application to succeed to a lease for the premises. DHCR has exclusive jurisdiction over remaining family member claims.[FN4] The Court noted that CPLR 2201 provides this Court with the discretion to stay this proceeding "upon such terms as may be just" and ultimately granted the oral application for use and occupancy as a matter of equity for the following reasons.

Because DHCR had exclusive jurisdiction over her succession claim, the court found that [*4]ordering Hongliu to pay use and occupancy pursuant to the draconian, pre-HSTPA iteration of RPAPL 745 (2) would be antithetical to the unique facts and procedural posture of that holdover proceeding. Specifically, pre-HSTPA, Hongliu's succession defense could be stricken if she failed to make the initial deposit, and if she made the initial deposit but subsequently defaulted, an immediate trial would ensue.[FN5] These remedies under made no sense at all in light of the exclusive jurisdiction that DHCR exercises over succession claims in Mitchell-Lama coops. (See n 5, supra.)

The Hongliu court was also guided by the regulations governing city-assisted Mitchell-Lama housing which require that pending HPD's determination of succession rights "the applicant may continue in occupancy and shall be required to pay for the use and occupancy of the apartment in an amount equal to the monthly rental/carrying charge paid by the vacating tenant/cooperator." (28 RCNY § 3-02 [p] [8] [iii].[FN6] Unlike the instant case, under DHCR's regulations Hongliu was already required to pay use and occupancy in order to maintain her claim for succession at DHCR. Moreover, throughout that proceeding, respondent had offered to pay use and occupancy, but for unknown reasons the parties did not so stipulate. In short, Hongliu is substantively distinguishable from this proceeding.

As for the pre-HSTPA cases cited in Hongliu, this court has developed the opinion that RPAPL 745 (2) is the only mechanism by which to seek use and occupancy in a summary proceeding, and then only prospective use and occupancy may be ordered.[FN7]

[*5]CONCLUSION

Petitioner's motion for use and occupancy is premature and may be filed again "upon the sixtieth day after the parties' first appearance in court" as defined by the statute, or the second of two adjournments made solely at the request of respondent. (RPAPL 745 [2].) The court has weighed the equities and finds that petitioner must be required to adhere to the statute.

Accordingly, it is

ORDERED that the petitioner's motion is DENIED without prejudice to renewal at the appropriate juncture; and it is further

ORDERED that the parties shall appear in Part F, Room 523, 111 Centre Street, New York, NY 10013 on October 23, 2023 at 10:00 a.m. for all purposes.

Petitioner shall serve this decision and order upon respondent with notice of entry within three business days. The clerk will also send notices to appear.

This constitutes the decision and order of this court.

September 20, 2023
New York, NY
HON. KAREN MAY BACDAYAN
Judge, Housing Part Footnotes

Footnote 1:Pursuant to the Part F rules, "[i]f any discrepancy arises between the relief sought in the notice of motion and the relief sought in the supporting papers, the notice of motion controls." See Part Rules, last updated March 21, 2023, available online at https://www.nycourts.gov/COURTS/nyc/housing/Judge/partrules/KBacdaya.pdf.

Footnote 2:"New Part" is the appellation assigned by the court to nonpayment and holdover proceedings which are calendared by the clerk of the court for the first appearance in court.

Footnote 3:OCJ, not the court, has established the current UAC program, to ensure a respondent's access to counsel "as soon as is practicable." (Id.)

Footnote 4:DHCR is vested with exclusive jurisdiction to determine remaining family member claims in state assisted Mitchell-Lama housing. See Bedford Gardens Co., LP v Jacobowithz, 29 AD3d 501 (2d Dept 2006) (holding that DHPD has exclusive jurisdiction over succession claims in city-assisted Mitchell-Lama housing); St. Marks Place Housing Company, Inc. v Moultrie, 34 Misc 3d 140 (A) (App Term, 2d Dept, 2d & 11th Jud Dists 2012) (holding that "occupant's succession-rights defense cannot be entertained in this [licensee] summary proceeding," as DHCR has exclusive jurisdiction over that claim).

Footnote 5:Regarding the amendments to RPAPL 745, the Appellate Term First Department has noted that in "the legislature has recognized a need for flexibility in dealing with rent deposits. The amended statute among other things, permits the court to consider the equities of the case, directs deposit into court of use and occupancy accruing only after the court's order (RPAPL 745[2][a]), eliminates the penalty of striking claims and defenses (RPAPL 745 [2][f]), and permits the court to extend the time for deposit for good cause shown (RPAPL 745[2][d][ii])." 1588-1600 AMS LLC v Gil, 75 Misc 3d 1, 3 (App Term, 1st Dept 2022).

Footnote 6:The court in Rochdale Vil., Inc. v Goode, 16 Misc 3d 49, 52 (App Term, 2d Dept, 2d & 11th Jud Dists 2002) held that "in view of the similarity between the two sets of regulations, the same rule of exclusivity of jurisdiction that is applied in city-assisted Mitchell-Lama housing [administered by HPD] should be applied in State-assisted Mitchell-Lama housing [administered by DHCR]." Arguably, then, the use and occupancy requirement in the HPD regulations also applies to state-assisted Mitchell-Lama coops.

Footnote 7:Even prior to the HSTPA amendments to RPAPL Section 745, courts found that the payment of use and occupancy in a summary proceeding is governed by RPAPL 745 (2) which limits the relief to certain situations. In Central Hudson Assoc v Brown, 1986 NY App Div LEXIS 16708, the Appellate Division, First Department upheld the lower court's exercise of discretion in awarding use and occupancy where the proceeding was protracted and the money was needed to provide essential services. The Brown court cited to a prior incarnation of RPAPL 745 (2) as the legal basis for seeking and awarding such relief in a summary proceeding. Portending the HSTPA amendments, the Appellate Division modified the lower court's award to allow for prospective relief only. (See also) ("as for that branch of the motion seeking use and occupancy pendente lite, the availability of same is governed by RPAPL 745 (2)"); 1747 Associates, LLC v Raimova, 56 Misc 3d 1216 (A), 2017 NY Slip Op 51040 (U) (Civ Ct, Kings County 2017) (in denying a motion for use and occupancy under the prior RPAPL 745 (2) holding that "[a]s compelling as the equities may be in a summary proceeding, the court's power to direct payment of use and occupancy is not an inherent one governed by a consideration of the equities, but instead derives solely from RPAPL 745.")