Opinion
36952/04.
Decided August 30, 2005.
Plaintiff moves, pursuant to CPLR § 3212 and Article § 6 of the RPAPL for partial summary judgment on plaintiff's action to recover real property described as the middle floor apartment within a building located at 1708 10th Avenue in Kings County. Plaintiff also moves to sever defendant Anthony Laredo's counterclaims, to strike his answer, and for the issuance of a writ of assistance to the Sheriff of Kings County to help obtain possession of the subject property. Defendant Anthony Laredo opposes the motion The defendants, "John Doe" and "Jane Doe" are no longer in possession of the subject premises.
On November 16, 2004, plaintiff commenced the action by filing a summons and complaint seeking monetary damages, possession of certain real property, and the aforementioned writ of assistance. On December 3, 2004, defendant Anthony Laredo, interposed an answer seeking dismissal of the complaint, an order permanently enjoining plaintiff from interfering with defendant's rights to the premises, and an award of attorney's fees, costs, and disbursements. Defendant also plead two counterclaims. The first counterclaim seeks return of all rents paid to plaintiff and damages which include the cost of relocating. The second counterclaim seeks damages for plaintiff's alleged acts of harassment used in an attempt to intimidate the defendant into leaving the subject premises.
By executor's deed recorded in the Kings County Clerk's office on July 10, 1980, plaintiff and her husband, Leonard Casalino, became the owners of a residential property known by street address 1708 10th Avenue, Brooklyn, New York, and block number 877, lot number 43. Defendant, Anthony Laredo admits in his answer to the complaint that he has resided in a middle floor of this property for approximately fourteen (14) years pursuant to an oral agreement with the plaintiff at a monthly rent of five hundred and fifty dollars ($550.00). On July 20, 2004, plaintiff gave defendant Laredo a thirty-day notice to vacate the apartment effective August 31, 2004. Plaintiff has not accepted any payment from the defendant since August 2004. Defendant Laredo admitted receipt of the notice to vacate.
Plaintiff's instant motion contains her attorney's affirmation, her supporting affidavit, a copy of the deed, a notice to vacate directed to the defendant, the pleadings and two questionable exhibits. The first questionable exhibit purports to be a certificate of occupancy report for the subject building but on its face refers to a building with the address of 1710 10th Avenue and with block number 877, lot number 44. The second is a single page document from Barretta Research which purports to be a certificate of occupancy search for the subject premise. The exhibit advises that it is continued on the next page without including it.
Defendant Anthony Laredo's opposition to the motion includes his affidavit, his son's affidavit and an affirmation by his attorney. Defendant alleges a heart condition which required surgery. He also alleges acts of harassment done at the plaintiff's direction to intimidate him into leaving the premises. Although plaintiff claims non-payment of rent since August 2004, Defendant disputes this claim contending that rent was tendered but not accepted. Defendant also disputes the alleged illegality of his occupancy of the premises. Defendant maintains that plaintiff's deed merely demonstrates past ownership of the building with her husband. He contends that it does not demonstrate either her current ownership or current possessory rights to the subject premises. Defendant submits that these foregoing disputes raise triable issues of fact which preclude summary judgment on the action to recover real property.
In New York, the basis for ejectment action lies in RPAPL Article 6. Pursuant to RPAPL § 621, when properties are owned jointly, any owner is entitled to bring an action to recover real property. Thus, plaintiff may properly commence the action without her husband. Also, contrary to defendant's contention, plaintiff's deed evidences her ownership and thus possessory rights to the premises. It is therefore defendant's burden to submit evidence in admissible form to raise an issue of fact on this point. Defendant, however, offers nothing to show plaintiff's current lack of ownership or right to possession.
Both plaintiff and defendant address the issue of the current use of the premises contrary to its certificate of occupancy. Neither party disputes that the premise is a two family home and that the defendant is the current sole occupant. While the status of the certificate of occupancy may have limited plaintiff's available remedies by barring a summary proceeding in Housing Court, it does not bar plaintiff's right to pursue an ejectment action in Supreme Court even on an accelerated basis.
Multiple Dwelling Law § 4(7) defines a multiple dwelling as a dwelling occupied as the residence of three or more families living independently of each other ( Mannino v. Felder, 165 Misc 2d 605 at 608, [N.Y. City Civ.Ct., 1995]). As a private, two family home occupied solely by the defendant, the premise is not a multiple dwelling. Defendant's affidavit admits that he has resided there for fourteen years and that since his occupancy there has bee no physical alteration of the premises. Defendant's apartment is thus not subject to rent control or rent stabilization (see, Sharabi v. Morales, 7 Misc 3d 1013(A) [Kings County, 2005]). Real Property Law § 232-a provides as follows:
Notice to terminate monthly tenancy or tenancy from month to month in the city of New York. No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.
The acceptance of rent on a monthly basis creates a month to month tenancy ( Stauber v. Antelo, 163 AD2d 246 [1st Dept. 1990]). Defendant admits his occupancy of the subject premises was pursuant to an oral lease with a monthly rent of $550.00. There is also no dispute that plaintiff would not accept rent after issuance of the notice to vacate. If there is a valid month to month tenancy agreement between the plaintiff and defendant, then the plaintiff was required to give the defendant a thirty-day notice to vacate the apartment (see Triborough Bridge and Tunnel Authority v. Wimpfheimer, 163 Misc 2d 412; Weiden v. 926 Park Ave Corp., 154 AD2d 308 [1st Dept. 1989]). If there was no valid tenancy, the plaintiff would not be required to give a notice to vacate prior to seeking an ejectment of the defendant ( O'Conner v. Gallier and John Doe /or Jane Doe, 7 Misc 3d 1016(A); see Alleyne v. Townsley, 110 AD2d 674 [2nd Dept. 1985]; 2 East 82 LLC v. O'Gomley, 295 AD2d 173 [1st Dept. 2002]). Here, it is undisputed that a thirty-day notice to vacate was given to the defendant. It is therefore, unnecessary for the court to address whether a notice to vacate was required. Furthermore, the defendant is not contesting his receipt of same, the manner or method of service or the sufficiency of its content. While he does express umbrage at being served at a nursing home/rehabilitation facility while attending to his heart condition, he does not contest the legal propriety of the notice.
In an action for ejectment, pursuant to RPAPL § 641, the plaintiff's complaint must simply set forth the plaintiff's interest in the property, and describe it with reasonable certainty in such manner that, from the description, possession of the property claimed may be delivered. The plaintiff has submitted proof of ownership of said premises, has not collected rent or use and occupancy since August 2004 and provided a thirty-day notice to vacate effective August 31, 2004. For property owners subject to Emergency Tenant Protection Regulations (9 NYCRR) § 2504.3 (b), a notice to terminate must set forth the grounds for termination and the facts necessary to establish the existence of such grounds ( Benroal Realty Associates, L.P. v. Newbern, 7 Misc 3d 759 [NY 2005]. The Rent Stabilization Code provides that no tenant shall be evicted "unless and until the owner [gives] written notice to such tenant . . . [which states] [1] the ground under section 2524.3 . . . upon which the owner relies for removal or eviction of the tenant, [2] the facts necessary to establish the existence of such ground, and [3] the date when the tenant is required to surrender possession" ( 9 NYCRR 2524.2[a], [b]) ( Domen Holding Co. V. Aronovich, 1 NY3d 117-123, [2003]).
As a private owner of a dwelling not subject to rent control or rent stabilization, however, plaintiff was not required to meet a specific statutory or regulatory ground to terminate defendant's month to month lease and could do so without cause by merely giving notice of her intention (compare, City of New York v. Clemons, 173 Misc 2d 134 [N.Y.City Civ. Ct. 1997]). As a result, the question of whether or not defendant's occupancy is illegal or inconsistent with the building's certificate of occupancy does not impinge upon plaintiff's right to regain possession through an action for ejectment. Therefore, the dispute between the parties on this point does not raise a triable issue of fact.
It is well settled that a party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstarte the absence of any material issues of fact ( Zarr v. Riccio, 180 AD2d 734 [2nd Dept. 1992]). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact ( Zuckerman v. City of New York, 49 NY2d 557, 562). Plaintiff's motion papers sets forth her interest in the property, describes it with reasonable certainty and establishes a right to possession superior to that of the defendant. Defendant's opposition papers do not raise a genuine issue which would require a trial. On the basis of the foregoing, plaintiff is entitled to partial summary judgment on her action to recover real property pursuant to Article 6 of the RPAPL.
Plaintiff seeks an order striking defendant's answer and severing defendant's counterclaims. Plaintiff also seeks a writ of assistance to effectuate possession of the subject premises. CPLR § 2214(a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Pursuant to CPLR § 3126 (3), the court may strike a parties pleadings as a penalty for a refusal to obey a prior court order for disclosure or for wilful failure to disclose information which the court finds should have been disclosed. CPLR § 603 provides the court with the discretionary authority to order severance of claims and separate trials in furtherance of convenience or to avoid prejudice. Plaintiff's motion papers contain no allegations of fact which would support the striking of defendant's answer or the severance of defendant's counterclaims. Plaintiff has also failed to demonstrate that the defendant will likely fail or refuse to comply with this court order. Also, in light of defendant's claim of recent heart surgery, the court would likely require the input of counsel to effectuate the return of possession while minimizing the risks to the defendant's health. Therefore, plaintiff's application to strike defendant's answer, to sever the defendant's counterclaims and to issue a writ of assistance is denied without prejudice.
The foregoing constitutes the decision and order of the court.