Opinion
L & T 74676/11
09-09-2011
374 Eastern Parkway Common Owners Corp., Petitioner-Landlord, v. Leonor Albernio et al., Respondent-Tenant.
The Law Offices of James E. Kasdon Attorney for Petitioner David J. Hernandez & Associates Attorney for Respondent
Civil Court, Housing part, Kings County
Judge , Jr.
The Law Offices of James E. Kasdon Attorney for Petitioner
David J. Hernandez & Associates Attorney for Respondent
Anthony J. Fiorella Jr., J.
Upon the foregoing cited papers, the Decision/Order on this motion to grant summary judgement is as follows:
Cross motion for partial summary judgement, etc.,
Petitioner commenced the within holdover proceeding to recover possession of apartment A6 located at 374 Eastern Parkway, Brooklyn, NY ("the Apartment") on grounds of nuisance. Respondents' answer denied petitioner's allegations and interposed a number of affirmative defenses and counterclaims. Respondents now move for summary judgment. In the alternative, respondents move for leave to conduct discovery. Petitioner opposes the motion and cross moves for an order dismissing respondents' affirmative defenses and counterclaims as well as award of costs and sanctions. The motions are consolidated for disposition.
Respondents contend the proceeding must be dismissed because petitioner failed to effect service of the Notice of Petition and Petition in accordance with the requirements of RPAPL §735. Respondent Ana De Leon asserts that she was physically present in the Apartment on June 6th and 7th and heard no one knock on the door or ring the doorbell. The process server alleges he attempted to gain access on these dates in order to effect personal service. According to respondents the process server's failure to attempt to effect personal service renders the alleged conspicuous place service invalid.
This argument is without merit. Respondents' answer interposed an unrelated first counterclaim of intentional infliction of emotional distress. The interposition of unrelated counterclaims waives any objection to personal jurisdiction (Textile Technology Exchange, Inc., v. Davis, 81 NY2d 56 [1993]). A counterclaim is unrelated when there is no potentially preclusive effect under principles of collateral estoppel (Id. at 59). There is no potentially preclusive effect here because Housing Court is not the appropriate forum for a tortious cause of action such as intentional infliction of emotional distress (See Curry v. New York City Housing Authority, 77 AD2d 534 [1st Dept. 1980]).
Respondents further contend the proceeding must be dismissed because petitioner did not effect service of the notice of termination in accordance with the requirements of RPAPL §735. Respondent Ana De Leon asserts once again that she was physically present in the Apartment on May 3rd and 4th and at no time did she receive a knock on the door, a ring of the doorbell or any other communication.
When an apartment is subject to rent stabilization, the notice of termination must be served in accordance with the requirements of the lease, or, where there is no lease, in accordance with the requirements of the statute (Scherer, Residential Landlord Tenant Law in New York Sec. 8:262 [2010-11]). Here, the lease fails to specify any specific method of service for the notices; there is, in fact, no provision at all for notices in the lease (see petitioner's exhibit 5). The statute, 9 NYCRR §2524.2(b), requires only a landlord to "give" written notice of the termination of tenancy. In addition tot eh attempted personal service, the process server alleges he forwarded copies of the notice of termination to respondents by certified and regular first class mail. Further, there is no dispute respondents received copies of the notice by mail. Based on the foregoing, petitioner's undisputed use of two different forms of mail service was an entirely reasonable attempt to give respondents notice of the termination of the tenancy (See Hughes v. Lenox Hill Hospital, 226 AD2d 4 [1st Dept. 1996] where service of the notice of termination on the tenant's attorney was held reasonable under the circumstances).
Respondents further contend the proceeding must be dismissed because petitioner has not sufficiently pleaded a cause of action for nuisance.
The notice of termination contains ten allegations of misconduct. Respondents argue that the first and tenth allegations in the notice of termination should be dismissed because the claims are false. The first allegation claims respondents use their washing machine at least three times per a week and, in doing so, water floods into the basement of the building. Respondents assert their washing machine is not leaking and this problem, if it does in fact exist, is more of a building wide problem; they have made a number of complaints about the plumbing and petitioner has failed to correct the problem. Further, contrary to the claims asserted in the tenth allegation, respondents maintain they do not leave trash or refuse outside their front door or in the building hallway.
Petitioner's president, however, expressly denies respondents' claims. He asserts: "in particular, Respondents began flooding the basement, making additional alterations to the subject premises without Petitioner's permission in all likelihood by unlicensed trades-people, leaving myriad types of construction refuse and trash in the hallways and performing noisy construction on a continuing and ongoing basis" (Marchisotto affidavit ¶5).
Dismissal of the first and tenth allegations is not warranted. The credibility of the parties is not an appropriate consideration for a summary judgement motion (Glick and Dolleck Inc., v. Tri-Pac Export Corp., 22 NY2d 439 [1968]).
Respondents further contend the second through ninth allegations do not constitute nuisance. According to the respondents, none of these incidents constitutes a nuisance because of a pattern of continuity or recurrence is not discernible from each of the allegations when considered individually.
When considered collectively, however, a viable cause of action for nuisance is stated by allegations two through nine. Whatever a trial may ultimately disclose, on a motion to dismiss, the court is required to accept the truth of the allegations an resolve all inferences which reasonably flow therefrom in favor of the pleader (Sanders v. Winship, 57 NY2d 391 [1982]).
Respondents further contend the proceeding must be dismissed because petitioner has brought suit in bad faith. According to respondents, petitioner has consistently refused to make needed repairs to the Apartment, refused to accept rent, and otherwise harassed them in order to compel their departure from the premises.
Petitioner, on the other hand, asserts that this proceeding was necessitated by respondents' actions (Marchisotto affidavit ¶5). Because of these conflicting statements dismissal on grounds of bad faith is unwarranted (See Sanders v. Winship. supra).
Based on all of the foregoing, respondents' motion to dismiss is denied.
Alternatively, respondents move to leave to conduct discovery. Respondents contend that because petitioner's notice of termination failed to disclose the names and addresses of the witnesses who observed their alleged misconduct, they are in ample need of discovery to prepare an adequate defense.
Although there is no discovery "of right" in a summary proceeding disclosure may be obtained upon a showing of ample need (NYU v. Farkas, 121 Misc 2d 643 [Civ. Ct. NY. Co. 1983]). Ample need generally refers to a situation where the non-moving party is in possession of the relevant evidence or information (Id.). Here, contrary to respondents' contention, there is no showing of ample need. Respondents are well aware of their own activities and conduct within the subject building. Moreover, a number of alleged acts of misconduct were witnessed by petitioner's president and superintendent and this is so specified in the notice of termination.
Petitioner contends a number of respondents' affirmative defenses and counterclaim are without merit.
Respondents' improper service defense stated by paragraphs 1 and 2 of the Answer has been waived (See Textile Technology Inc. v. Davis, supra).
Respondents' claim that the notice of termination fails to state a cause of action for nuisance, pleaded in paragraph 3(I) of the Answer, has been found to be without merit. Respondents' claim that notice to fails to set forth a vacate date, stated by paragraph 3(ii), is also without merit. A vacate date of May 16, 2011 is provided on page 4. Respondents' claim that the notice was issued by a person lacking authority to do so, pleaded by paragraph 3(iv), is also without merit. Because there is no provision in the lease for notices, there is no requirement that a notice of termination must issue only from the owner (See Siegel v. Kentucky Fried Chicken of Long Island, Inc., 67 NY2d 792 [1986]). And respondents' claim that no one attempted personal service of the notice of termination, pleaded by paragraph 3(v) has been determined to be irrelevant.
Respondents' allegation that the petition was not signed or verified by a person who may maintain a proceeding pursuant to RPAPL §741 and §721, pleaded by paragraph 6 of the Answer, is also without merit.
A petition may be verified by a person authorized by RPAPL §721 to maintain a summary proceeding, or, by a legal representative, attorney or agent of such person (RPAPL §741). Here, the petition was verified by James Kasdom, the attorney for the petitioner.
Respondents' retaliatory eviction claim, pleaded by paragraph 7 of the Answer, is not subject to dismissal. Although petitioner's president asserts that suit was brought in good faith, on a motion to dismiss the pleader is entitled to the benefit of every favorable inference (Sanders v. Winship, supra).
By paragraph 9 and 10 of the Answer respondents allege petitioner is not authorized to do business in the state of New York and not entitled to bring this action.
Petitioner, however, has attached a copy of its registration with the New York State Department of State as an active business corporation (petitioner's exhibit 3) and respondents have no refuting evidence. Once the moving party makes a prima facie showing of entitlement to judgement, it is incumbent on the opposing party to come forward with evidence indicating there is a genuine issue of fact (Hanson v. Ontario Milk Producers Coop, 58 Misc 2d 138 [S. Ct. Oswego Co. 1968]).
Paragraph 11 of respondents' Answer alleges petitioner was required by the terms of the Rent Stabilization Code to obtain a certificate of eviction from the New York State Division of Housing and Community Renewal before commencing this proceeding.
The governing authority for the commencement of this proceeding is 9 NYCRR §2524.3 and there is no requirement to obtain a certificate of eviction therein.
Paragraph 12 of respondents' Answer alleges petitioner has failed to register the building as a multiple dwelling with the New York City Department of Housing Preservation and Development.
This defense is without merit. A copy of the registration is attached as petitioner's exhibit 4 and respondents have advanced no evidence to impeach this showing (See Hanson v. Ontario Milk Producers, Coop, supra).
Paragraph 15 of the Answer alleges petitioner has failed and refused to offer respondents renewal lease pursuant to RSC §2524.4(a).
This allegation is not a defense to a nuisance hold-over.
Respondents' first counter-claim demands monetary damages in the sum of $10,000.00 for the petitioner's alleged intentional infliction of emotional distress. This cause of action is unrelated to petitioner's claim and more appropriately tried in a plenary action (Coronet Properties v. Lederer, N.Y.L.J. February 21, 1986 p. 12 c. 2 [App. T. 1st Dept]).
Respondents' second counterclaim demands monetary damages in the sum of $10,000.00 for petitioner's alleged harassment. New York State does not recognize a civil cause of action for harassment (Broadway Cent. Property Inc. v. 682 Tenant Corp., 298 AD2d 253 [1st Dept 2002]).
Respondents contend the second counterclaim should not be dismissed because Local Law §7 expressly provides tenants with a cause of action for harassment against landlords. Respondents, however, have not demanded the general forums of relief under Local Law §7: a cease and desist order and/or civil penalties. Nevertheless, to the extent that respondents were seeking to interpose a counterclaim for harassment under Local Law §7, the second counterclaim will be dismissed without prejudice to the commencement of such a proceeding in the HP Part of this court.
Respondents' third counterclaim demands damages for the defense of this proceeding in an amount not less than $2,500.00. Petitioner argues this counterclaim should be dismissed because there is no right to demand sanctions by way of pleading.
Respondents, however, fail to plead any basis at all for the demand of $2,500.00. Instead all the allegations contained in paragraphs 1 through 19 are repeated by virtue of paragraph 20 including the claim for retaliatory eviction. The third counterclaim will, therefore, be dismissed without prejudice to t plenary action in the event the respondents prevail on the retaliatory eviction defense. RPL §223-b(3) specifically provides that a landlord shall be subject to a civil action if the landlord is found to have violated the provisions of RPL §223-b.
Respondents' fourth counterclaim demands attorneys' fees pursuant to RPL §234 which provides a tenant with a reciprocal right to recover attorneys' fees whenever a lease includes a provision for the recovery of legal fees incurred by the landlord.
RPL §234 is not applicable to this proceeding. A tenant is not entitled to recover attorneys' fees where rights are based on statute and not the lease between the parties (Tarman v. Rowe, 112 Misc 2d 708 [S. Ct. NY Co. 1982]). Here, petitioner's rights are based on statute, 9 NYCRR §2524.3, not a violation of the lease terms.
Accordingly, respondents' motion for summary judgment and dismissal of this proceeding is denied in all respects.
Respondents' alternative demand for leave to conduct discovery is also denied.
Petitioner's cross motion is granted tot he extent of dismissing the defenses stated by paragraphs 1, 2, 3, 6, 9, 10, 11, 12 and 15. Respondents' first and third counterclaims are dismissed without prejudice to a plenary action. Respondents' second counterclaim is dismissed without prejudice to the commencement of the appropriate action in the HP Part of this court. Respondents' fourth counterclaim is dismissed with prejudice.
Petitioner's additional demand for costs and sanctions against the respondents for allegedly frivolous conduct is denied without prejudice to renewal after trial.
The case is hereby rescheduled for further proceedings in Part F, Room 612 on October 5, 2011 at 9:30 AM..
Petitioner is directed to serve a copy of this order on respondents within five days after entry.
The foregoing constitutes the decision and order of this court.
Dated:Brooklyn, New York
September 9, 2011
_____________________________
Anthony J. Fiorella, Jr., JHC