Opinion
L & T 36817/19
11-09-2020
1506 WALLCO LLC, Petitioner-Landlord, v. Luis GUZMAN, John Doe and Jane Doe, Respondents-Tenants.
For Petitioner: Gregory S. Bougopoulos, Esq., Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, NY 10704 For Respondent: Johanna Ocana, Esq., Bronx Legal Services, 369 E. 148th Street, 2nd Floor, Bronx, NY 10455
For Petitioner: Gregory S. Bougopoulos, Esq., Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, NY 10704
For Respondent: Johanna Ocana, Esq., Bronx Legal Services, 369 E. 148th Street, 2nd Floor, Bronx, NY 10455
Christel F. Garland, J. THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Petitioner commenced this residential summary holdover proceeding seeking to recover possession of apartment 3H, a rent stabilized apartment located at 1506 Walton Avenue, Bronx, New York, based on its claim that following the death of the tenant of record and the expiration of his lease, Respondents continue in possession without permission: that if permission to occupy the apartment was previously granted such permission is revoked, but that if no permission was given Respondents have squatted without Petitioner's permission.
Respondent Luis Guzman ("Respondent") initially appeared pro se . He later retained counsel and interposed an answer asserting, inter alia , succession rights as a nontraditional family member, raised unclean hands as a defense and breach of the warranty of habitability as a counterclaim. Subsequently, Respondent moved for an order granting him leave to amend his answer, as well as an order dismissing the petition and granting him summary judgment. By decision and order dated February 11, 2020, the court denied Respondent's motion seeking summary judgment finding the existence of issues of fact. As to the portion of Respondent's motion which sought an order dismissing the proceeding based on his claim that the predicate notice is fatally defective, the court reserved that argument for the trial court. However, in its decision, the court noted that Petitioner did not object to the proposed amendment and Respondent withdrew his counterclaims relating to the breach of the warranty of habitability.
Following the court's decision and the parties' inability to reach a settlement, the court transferred the proceeding to the Expediter for referral to a trial part. The proceeding was then referred to this part for trial. However, due to the pandemic the trial in this matter did not commence as scheduled and has not yet been rescheduled. In the meantime, this court held a virtual conference in an attempt to resolve the proceeding, but no resolution was reached. Respondent then moved by order to show cause ("OSC") for an order dismissing the proceeding based on his claim that the predicate notice is defective. In the alternative, Respondent seeks limited discovery of the evidence Petitioner revealed during the virtual settlement conference it may use at trial. Petitioner cross-moved for an order dismissing Respondent's second affirmative defense and third counterclaim as interposed in his amended answer. In addition, Petitioner seeks an order granting it discovery and seeks an order directing Respondent to pay use and occupancy pendente lite .
In support of his OSC, Respondent contends that the notice to quit which pleads alternative grounds for possession is defective as it lacks the level of specificity required when pleading in the alternative. Specifically, Respondent asserts that Petitioner has owned the subject building since 1993 and that he has occupied the subject apartment since that time. As a result, Respondent argues that Petitioner could have pleaded its cause of action in more detail, and that Petitioner's failure to do so hinders his ability to mount a proper defense. Respondent also seeks leave to conduct limited discovery based on his claim that he learned for the first time during the pre-trial conference held by this court that Petitioner planned to introduce three to four witnesses at trial, and that it has both video and key fob related evidence that it plans to introduce at trial. Respondent asserts that he now seeks the information because Petitioner failed to respond to the inquiry he made in emails to Petitioner's counsel.
Petitioner, on the other hand, contends that Respondent already took his "bite of the apple" and cannot once again challenge the sufficiency of the predicate notice. Petitioner argues that any such challenge which was preserved by the resolution part judge in issuing the decision is reserved for the conclusion of the trial and cannot be the subject of yet another motion. Notwithstanding the above, Petitioner argues that the notice as it stands, which pleads alternate theories of recoveries, is sufficient. According to Petitioner, prior to the death of the tenant of record, Respondent's presence at the apartment was sporadic leading Petitioner to believe that he did not occupy the apartment and other evidence in the record so far renders his claim inconsistent. As such, Petitioner asserts that the notice sufficiently states the basis for possession and Respondent cannot claim confusion. Petitioner also challenges Respondent's unclean hands defense based on its claim that the last lease between Petitioner and the now deceased tenant of record did not expire until June 30, 2019 and Petitioner could not have commenced a proceeding prior to that date without naming a representative for his estate but that no representative was ever appointed. Petitioner further contends that the relief sought by Respondent in raising this defense is the kind of affirmative relief that is beyond this court's jurisdiction. Moreover, Petitioner contends that a discrimination claim is the type of claim which has been held to be unrelated to a holdover proceeding and need not be entertained by this court. Further, Petitioner seeks to dismiss Respondent's breach of the warranty of habitability counterclaim on the ground that this defense is only available to a tenant and seeks an order dismissing Respondent's counterclaim seeking an order to correct because it is not inextricably related to Petitioner's claim for possession.
In opposing Respondent's request for discovery, Petitioner asserts that Respondent failed to seek that relief in his prior motion and waited until the case was assigned to a trial part to make the request. Despite the above, Petitioner argues that the request is improper and is not narrowly tailored as Respondent seeks discovery from 1993 forward, whereas his claim for succession is limited to the two-year period immediately preceding the death of the tenant of record. As to the video recordings, Petitioner contends that it is not its burden to prove whether Respondent in fact resided at the subject apartment for the requisite period of time, but that it is Respondent who bears the burden to prove his succession claim and cannot seek discovery to meet his burden.
Similarly, Petitioner itself seeks discovery relating to the apartment located at 1777 Grand Concourse, the address Respondent, who was the listed informant on the tenant of record's death certificate, provided despite his claim that he has lived at the subject apartment for 25 years. In addition, Petitioner asserts that a tax warrant search in the New York State database reveals tax warrants issued for Respondent at the 1777 Grand Concourse address rather than at the subject apartment. Based on this information, Petitioner contends that discovery is proper since Respondent's ties to the Grand Concourse apartment are within his exclusive knowledge and the information is directly related to his succession defense.
Finally, Petitioner contends that the proceeding is ripe for an order directing Respondent to pay use and occupancy since it has now been 60 days since the proceeding has been pending on the court's calendar and that the adjournments in the proceeding are to be attributed to Respondent.
In turn, Respondent argues that the CPLR § 3211(2) "single motion rule" does not apply here since there was no determination of Respondent's claim on the merits. Moreover, Respondent contends that he may assert an unclean hands defense as an equitable defense within the context of an eviction proceeding and asserts that his defense and counterclaim was resolved by the parties per the February 11, 2020 order. In addition, Respondent argues that he has established ample need for the discovery he seeks, and agrees to limit the time frame for his request as he only seeks to review the video and key fob evidence in advance of trial so as to avoid unfair surprise. As to Petitioner's request for discovery, Respondent contends that Petitioner is already in possession of the information it seeks. As such, Respondent contends that Petitioner's request should be denied as it amounts to nothing more than a fishing expedition. Further, Respondent contends that the request is overly broad, intrusive and is not carefully tailored and cites to the pandemic and lack of technology as impediments to his ability to respond to Petitioner's demand.
As to Petitioner's request for use and occupancy, Respondent contends that in weighing the equities, the court should exercise its discretion and deny the request since he raised unclean hands as a defense. In addition, Respondent argues that given the fact that Petitioner has yet to recognize him as a tenant it should not receive rent payments. But, Respondent requests that if the court grants Petitioner's request, it should direct that the payments be made prospectively only at the last legal regulated rent amount to be deposited in court rather than tendered directly to Petitioner.
Acknowledging that Respondent's counterclaims relating to breach of the warranty of habitability were withdrawn, in its reply Petitioner withdrew the portion of its motion which seeks an order striking those defenses/counterclaims.
Both motions are hereby consolidated for disposition as follows:
At the outset, the court notes that Respondent's motion is not barred by the one-time rule contained in CPLR § 3211(e) since there was no determination of his claim on the merits. At the same time, the court notes that the proceeding has not yet reached the trial the that the motion court envisioned. However, for the sake of judicial economy, this court has reviewed Respondent's claim in support of dismissal and denies that portion of the motion.
In evaluating the sufficiency of a predicate notice in a summary proceeding, the test remains that of reasonableness in view of the attendant circumstances (see Hughes v. Lenox Hill Hospital , 226 A.D.2d 4, 651 N.Y.S.2d 418 [1st Dept. 1996] ), and courts continue to look to whether the notice could "have materially misled or confused the tenant or hindered the preparation of his defense" in deciding whether a predicate notice is reasonable ( Oxford Towers Co., LLC v. Leites , 41 A.D.3d 144, 837 N.Y.S.2d 131 [1st Dept. 2007] ; see also Great Jones St. Realty Corp. v. Chimsanthia , 67 Misc. 3d 136[A], 2020 WL 2499728 [App. Term, 1st Dept. 2020] ). In this judicial department, a predicate notice which pleads alternative grounds for eviction has been found not jurisdictionally defective where the alternative theories for recovery (illegal sublet and nonprimary residence) "were identical, and sufficiently apprised respondent of the grounds on which she would have to defend the proceeding" ( 3657 Realty Co. LLC v. Jones , 52 A.D.3d 272, 859 N.Y.S.2d 434 [1st Dept. 2008] ) (internal quotation marks and citation omitted). Although in City of New York v. Bullock , 164 Misc. 2d 1052, 630 N.Y.S.2d 652 [App. Term, Second Dept. 1995] ), a case relied upon by Respondent and previously relied upon by this court, the Appellate Term, Second Department, upheld the dismissal of a petition plead on the alternative theories of squatter and licensee without an explanation about why the landlord was unaware of the occupants' status, last month the Appellate Term changed course. In Kew Gardens Portfolio Holdings, LLC v. Bucheli , 69 Misc. 3d 129[A], 2020 WL 5884428, the Appellate Term, Second Department, reversed an order of the trial court granting the occupants' motion to dismiss the petition brought on licensee/squatter grounds. In its decision, following the doctrine of stare decisis , the court pointed out that subsequent to its decision in Bullock , supra , "the Appellate Division, Third Department, held that alternative pleading is permitted in a summary proceeding" and noted that "to the extent that Bullock is to the contrary, it should not be followed" ( id. ).
In support of his claim Respondent also cites to Matthews v. Jones , N.Y.L.J., Jan. 22, 2020 at 21, col. 2 [Civ. Ct., Bronx County 2020], a decision issued by this court. Jones was a decision issued after trial and the issue centered on the predicate notice which seemed to make alternate claims for possession but did not comport to the proof at trial. The predicate notice in that proceeding referred to a license which may have been granted and the revocation of said license but also referred to Respondents as squatters. However, during the trial of the matter the petitioner did not testify to a license and the evidence tended to show instead that Respondents squatted on the property. This court's ultimate conclusion was based on the fact that Petitioner failed to meet her burden to prove the allegations contained in the petition and relied upon the particular facts of the case for finding the notice as plead unreasonable.
Here, following the court's review of the predicate notice in this proceeding and the legal precedent which this court is bound by, this court finds that the predicate notice is reasonable under the attendant circumstances and the allegations are sufficient to allow Respondent to defend the proceeding. And, as the court in Bucheli , supra , noted, Respondent is "in the best position to know the circumstances under which [he] entered into occupancy, and [he] pointed to no prejudice or confusion resulting from the alternative pleading".
With respect to Respondent's request for discovery, it is well-settled that discovery within the context of a summary proceeding is not granted as a matter of right, and that instead it must be obtained with leave of court (see CPLR § 408 ). Notwithstanding, it has been held that "discovery is not...inherently hostile to the nature of the summary proceeding", and that "although there may be [a] presumption against discovery in summary proceedings, exceptions to this rule have emerged...and if ample need is demonstrated discovery may be ordered" ( New York University v. Farkas , 121 Misc. 2d 643, 645, 468 N.Y.S.2d 808 [Civ. Ct., N.Y. County 1983] [internal quotation marks and citation omitted] ).
Following the court's review of the procedural history in this proceeding and the claims made by the parties, this court finds that Respondent has established ample need for the video footage and key fob records (items no. 2 through no. 6) and finds the request timely since Respondent was unaware that Petitioner was in possession of video and key fob records until the pre-trial conference held by this court. Despite the above, if, as Petitioner asserts, it only plans to utilize this evidence to rebut any evidence Respondent presents in support of his defense, then Petitioner shall be directed to provide said evidence to Respondent's counsel in advance of the date on which it plans to present said evidence with reasonable notice to Respondent's counsel which may be established by the trial court. The production shall be limited to the two-year period immediately preceding the death of the tenant of record, September 28, 2016 through September 28, 2018. In addition to the above, Respondent also seeks information relating to the names, titles, dates of employment of any and all of Petitioner's employees, agents, or contractors which have knowledge about the occupants of the apartment (item no.1 of proposed notice of interrogatories annexed to Respondent's OSC). That request is overly broad and for this reason that portion of Respondent's request is DENIED. As to item no. 7, as soon as the trial in this matter is scheduled, Petitioner shall identify each trial witness and include the witness's name, title and date of employment with Petitioner.
Now turning to Petitioner's request for discovery, following a review of the proposed demand, this court finds that Petitioner has established ample need for the information sought since it is Respondent who "possesses particular knowledge which could shed light on the occupancy issues raised in connection with [his] succession claim to the subject apartment" and Respondent put into question his succession claim when he provided the Grand Concourse address that appears on the death certificate of the tenant of record as well as other documents that have now tied him to that address ( The Park Central 1 LLC v. Williams , 67 Misc. 3d 144[A], 2020 WL 3528227 [App. Term, 1st Dept. 2020] ; see 86 West Corp. v. Singh , 57 Misc. 3d 152[A], 2017 WL 5711053 [App. Term, 1st Dept. 2017] ).
Based on the foregoing, Petitioner's motion seeking an order granting discovery is GRANTED to the following extent: Petitioner's document demand seeks a total of 17 items covering the relevant period. Respondent is directed to produce documents as per Petitioner's document demand annexed to its moving papers within 60 days from the date of this court's decision. The proceeding is hereby marked off calendar pending the completion of discovery and may be restored either by stipulation between the parties or notice of motion.
Petitioner's request for use and occupancy pendete lite is GRANTED and Respondent is directed to tender use and occupancy at the rate of $518.40, the amount reserved in the last lease between Petitioner and the deceased tenant of record, by the 10th of each month starting on December 10, 2020 with the exception of November's 2020 use and occupancy which must be tendered to Petitioner no later than November 30, 2020 (see RPAPL § 745[2][a] ). The proceeding first appeared on the court's calendar on September 17, 2019. The court file reflects that it was then adjourned to October 11, 2019 for Respondent to obtain counsel. This adjournment does not count for the purposes of the application of the statute. The court file then reflects that On October 11, 2019, the proceeding was again adjourned to November 4, 2019 because Respondent had an appointment with counsel scheduled a week after the appearance. On November 4, 2019, Respondent's counsel filed a notice of appearance and the proceeding was then again adjourned a couple of times while the parties were exploring settlement. The stipulation of settlement dated November 4, 2019 includes a paragraph that states that the adjournment was charged to Respondent, and the proceeding was once again adjourned to December 12, 2019 by which date Respondent was to file an answer to the petition. Taking into account the above adjournments, there have been more than one adjournments made at the sole request of Respondent, and the court notes that it has now been at least 60 days since the proceeding has been pending on the court's calendar counting only the days attributable to Respondent.
Lastly, Petitioner also seeks an order dismissing Respondent's unclean hands defense. In order to establish unclean hands, one needs to establish that "the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct" ( Citibank, N.A. v. American Banana Co. Inc. , 50 A.D.3d 593, 856 N.Y.S.2d 600 [1st Dept. 2008] ) (internal quotation marks and citation omitted). In addition, "to charge a party with unclean hands, it must be shown that said party was ‘guilty of immoral or unconscionable conduct directly related to the subject matter’ " ( id. ). Here, Respondent claims that Petitioner commenced this proceeding and seeks possession with unclean hands in that it has discriminated against him. There is however no affidavit from Respondent addressing these allegations, and Respondent's claim can only be fully gleaned from email exchanges between counsels which were attached to Respondent's OSC.
Respondent's unclean hands defense ignores the timeline of events and the realities facing the parties. Missing from Respondent's submission is any claim that it became indeed possible for Petitioner to entertain a new tenant for the apartment at any time before this proceeding was commenced, and that Respondent submitted an application to Petitioner but was denied the opportunity to rent the apartment by virtue of his protected class status under the City's Human Rights Law. The fact that Respondent may have continued to send his rent payments to Petitioner and that Petitioner would not have been entitled to a vacancy increase, assumes that Respondent would have otherwise met other eligibility requirements for the apartment. Furthermore, even though the tenant of record passed away on September 28, 2018, the last renewal lease between him and Petitioner did not expire until June 30, 2019. Given the fact that Petitioner could not entertain a new tenant or commence this proceeding until the date the renewal lease expired or an executor of the estate was identified, Respondent's claim is premature at this stage and may not become ripe until after there is a determination on the merits of his succession claim (see CPLR § 3211[b] ).
Based on the foregoing, the portion of Petitioner's motion which seeks an order dismissing Respondent's second affirmative defense is GRANTED and the defense is dismissed without prejudice to Respondent bringing this claim at the appropriate time and in the appropriate forum (see CPLR § 3211[b] ; see also Bank of New York v. Penalver , 125 A.D.3d 796, 1 N.Y.S.3d 825 [2nd Dept. 2015] ). Since Respondent withdrew his defense and counterclaim relating to breach of the warranty of habitability, the trial in this matter shall center on Respondent's succession claim.
This constitutes the decision and order of the Court.