Opinion
L & T Index No. 302903-2022
08-18-2022
Ramon FERNANDEZ, Petitioner, v. Shelton JONES and Danny Doe, Respondents (Tenants), and John Doe and Jane Doe, Respondents (Undertenants).
The petitioner is represented by Geovanny Fernandez, Esq. The respondent is represented by Bronx Legal Services by Leigh R. Thomas, Esq.
The petitioner is represented by Geovanny Fernandez, Esq.
The respondent is represented by Bronx Legal Services by Leigh R. Thomas, Esq.
Shorab Ibrahim, J.
RELEVANT FACTS & PROCEDURAL POSTURE Ramon Fernandez (petitioner) served a notice to quit (notice) and later a petition which allege that Shelton Jones (respondent) is either a squatter or licensee. (see NYSCEF Doc. 1).
A COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) application was filed in June 2021, and petitioner's motion to vacate the automatic statutory stay was filed in April 2022. (see NYSCEF Doc. 6 at p. 26; Harmony Mills West, LLC v. Constantine , 75 Misc.3d 594, 595, 169 N.Y.S.3d 476 [City Court, Cohoes 2022] ). The June 2021 application, however, is noted as "not submitted." (see NYSCEF Doc. 6 at p. 26). Thereafter, respondent submitted an ERAP application in June 2022 and, as such, the case was stayed. (see NYSCEF Doc. 18).
Petitioner argues that maintaining the ERAP stay in a licensee proceeding is inappropriate. Respondent counters that the plain text of the statute keeps the stay in place until a final determination is made on the application. He additionally argues that he is a tenant, not a mere licensee.
In his cross-motion, respondent argues the matter must be dismissed [ CPLR § 3211(a)(7) ] because the predicate notice alleges alternative theories of squatter or licensee without any additional facts as to why petitioner cannot specify the respondent's status. Alternatively, respondent argues he paid rent to the petitioner, and must be served with a 90-day notice to terminate his tenancy.
In response, petitioner denies receiving rent from the respondent and points out that respondent's allegations of same are supported only with his self-serving affidavit. Petitioner further states he has no lease with the respondent and that he is not asking for rent or use and occupancy from the respondent. Petitioner requests that the court follow the holding in 2986 Briggs LLC v. Evans , where stay was lifted in a licensee proceeding where "no showing has been made that Respondent is a ‘tenant obligated to pay rent.’ " ( 74 Misc. 3d 1224(A), *5, 2022 WL 853132 [Civ. Ct., Bronx County 2022] ). Petitioner further asks the court to treat respondent's motion to dismiss as a motion for summary judgment but find that it is petitioner that is entitled to summary judgment.
In his reply, respondent re-cites to several cases for the proposition that a "licensee or squatter" notice must rationally explain why a petitioner does not know the occupant's status. Respondent additionally argues that petitioner is not entitled to summary judgment on procedural and substantive grounds, and that the submissions so far raise multiple issues of fact that require a trial.
The court heard argument and reserved decision on August 10, 2022.
DISCUSSION
The ERAP Stay
Because this is a licensee proceeding wherein there is no allegation that respondent has a rent obligation to the petitioner, the court follows the persuasive authority of 2986 Briggs LLC v. Evans and vacates the ERAP stay. (see 74 Misc. 3d 1224(A), *5 ). Respondent here acknowledges that he rented a room from a Julio Taveras, whom he agreed to pay $200 per week. (see NYSCEF Doc. 11 at 6-7). And while respondent states he paid rent "directly" to the landlord, no one in this matter has alleged that respondent was obligated to pay anyone other than Julio Taveras. (see Awaly LLC v. Pena , 75 Misc. 3d 1227(A), 2022 WL 2963201 [Civ. Ct., Bronx County 2022] (vacating ERAP stay in illegal sublet holdover where occupant had no rent obligation to the petitioner)).
The use of the word "directly" in respondent's affidavit is perplexing. Respondent actually alleges that he gave the rent money to a third party, Michael Vasquez, who would then take respondent's rent to the landlord. Respondent does not state he was with Mr. Vasquez on any of these "multiple occasions." (see NYSCEF Doc. 11 at 11-13).
The court notes that none of the cases respondent cites to are binding authority. In any event, the respondent here has no rent obligation to the petitioner and the petitioner states he is not seeking rent or use and occupancy. (see NYSCEF Doc. 22 at 22-23); compare Valeries J. LI v Louis Manuel Echevarria Sr. , et al., LT-80868-19, (Civ Ct, Kings County, Decided 5/13/2022) (stay remains where petitioner repeatedly sought use and occupancy and the petition referenced a rent agreement); 225 Skyline Drive Ventures LLC v. Barbara Ryant , LT-50014-20 [Civ Ct, Richmond County, Decided October 13, 2021] (upholding ERAP stay in a no-cause holdover, finding respondents were parties to a rental agreement upon which petitioner sought, in its petition, ongoing use and occupancy," and that ERAP covers the respondent's rental obligation).
While payment, if proven, might have legal consequences, there has been no showing of an obligation to pay rent. As such, the ERAP stay is hereby vacated.
Squatter or Licensee?
In City of New York v. Bullock , the court found alternate pleadings of squatter or licensee acceptable if the petitioner states [in the notice] a rational basis for why they do not know the respondent's status. (see 159 Misc. 2d 716, 718-719, 606 N.Y.S.2d 552 [Civ. Ct., Kings County 1993] affd for reasons stated below 164 Misc. 2d 1052, 630 N.Y.S.2d 652 [App. Term, 2d Dept., 2d & 11th Jud Dists 1995] ).
Bullock has been approvingly cited to in the last twenty-five years. (see e.g. 425 Third Ave. Realty Co. v. Greenfield , 13 Misc. 3d 1207(A), *2, 2006 WL 2619818 [Civ. Ct., New York County 2006] ; Christ Pentacostal Temple Inc. v. Copeland , 59 Misc. 3d 1215(A), 2018 WL 1802265 [Civ. Ct., New York County 2018] ; 1560 GC LLC v. Webster , 2018 NYLJ LEXIS 570 [Civ. Ct., Bronx County, 2018]; Matthews v. Jones , 2019 NYLJ LEXIS 4655, *7 [Civ Ct, Bronx County 2019]).
However, the Appellate Term, Second Department recently reversed course. (see Kew Gardens Portfolio Holdings, LLC v. Bucheli , 69 Misc. 3d 129(A), 2020 WL 5884428 [2020] ). In Bucheli , the lower court relied on Bullock and dismissed the proceeding because the Notice to Quit stated respondents were licensees or, alternatively, squatters. The notice did not provide any further information as to why petitioner did not know the occupants’ status. (see NYSCEF Doc. 6 at "10 DAY NOTICE TO QUIT" under Index No. 76104-18). The Appellate Term accurately describes the notice as follows:
In this summary proceeding, the 10-day notice to quit and the petition state that Ronald Bucheli and Barbara Pinargote (occupants) entered into occupancy
as licensees of the former tenant of record, Jorge Alban, and that their license expired upon Alban's death. In the alternative, the notice and the petition state that occupants are squatters who entered without the permission of the person entitled to possession. (see Bucheli at 69 Misc 3d 129(A), *1 ).
Here , the Notice to Quit similarly states:
... you have no authority nor license from the owner and landlord to so occupy same premises and you are therefore squatting ... and or any permission and or license to so occupy the subject premises is herein and herewith terminated and revoked." (see NYSCEF Doc. 1 at p. 5).
At least one court which had previously cited to Bullock acknowledged that Bucheli represented a significant change in the law. (see 1506 Wallco LLC v. Guzman , 70 Misc. 3d 571, 576, 135 N.Y.S.3d 795 [Civ. Ct., Bronx County 2020] ).
The 1506 Wallco LLC v. Guzman Ten Day Notice to Vacate can be found at NYSCEF Doc. 14 at Index. No. 36817-19. As this Department's appellate courts have not ruled on the issue, the court is bound to follow the Second Department precedent.
After Bucheli , the question [when there is this alterative pleading] is no longer whether the landlord should have made additional statements in the notice, but rather whether the allegations are sufficient to allow respondent to defend the proceeding. (see 1506 Wallco LLC v. Guzman , 70 Misc. 3d at 577 ; Kew Gardens Portfolio Holdings, LLC v. Bucheli, 69 Misc. 3d 129(A), 130 N.Y.S.3d 878 ("In our view, the notice to quit and petition were reasonable under the attendant circumstances and were sufficient to permit occupants to prepare a defense") citing Oxford Towers Co., LLC v. Leites , 41 A.D.3d 144, 837 N.Y.S.2d 131 [1st Dept. 2007] ). This court notes that respondent does not allege in his affidavit that the alleged defect in the notice has hindered him in preparing a defense. Notably, "occupants are in the best position to know the circumstances under which they entered into occupancy, and they pointed to no prejudice or confusion resulting from the alternative pleading." (see id. ). In fact, the respondent's defense rests on him being a tenant, rather than either a squatter or licensee. (see NYSCEF Doc. 11 at third and fourth defense).
As such, dismissal based on the alleged impermissible alternate pleading is denied. Rent Payments
Respondent acknowledges that he took occupancy from a Julio Taveras (Taveras). It was Taveras who represented "he" had rooms to rent. It was Taveras who gave keys. It was Taveras with whom respondent made the agreement to pay rent and it was to Taveras that rent was "usually" paid. (see NYSCEF Doc. 11).
Respondent does not state that rent was ever paid in his own name, or that he ever personally delivered rent to the petitioner, despite allegedly being in the same room with the petitioner on numerous occasions. (see id. at 16-17).
Respondent allegations of rent payments "directly" to the petitioner are supported only by his affidavit, notwithstanding the incredible use of the word "directly." Petitioner, on the other hand, denies he ever received rent from respondent.
Consequently, dismissal on this ground is denied.
Motion to Dismiss [ CPLR § 3211(a)(7) ] and Motion for Summary Judgment [ CPLR § 3212 ]
On a motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action, the court is required to afford a liberal construction to the pleading, accord petitioner the benefit of every possible favorable inference, accept the facts alleged as true and determine only whether they fit within any "cognizable legal theory." (see Leon v. Martinez , 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1984] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (see Roni LLC v. Arfa , 18 N.Y.3d 846, 848, 939 N.Y.S.2d 746, 963 N.E.2d 123 [2011] ).
Under this standard, respondent's motion must be denied. The court has found the predicate notice is permitted under current precedent. And respondent's claim that he is a tenant, while perhaps a defense, has not been established. (see Sokol v. Leader , 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153 [2nd Dept. 2010] (unless it has been shown that a material fact as claimed is not a fact at all and unless it can be said that no significant dispute exists regarding it) [citation omitted]).
Turning to summary judgment, the court notes its authority in summary proceedings to make summary determinations where no triable issues of fact are present. (see CPLR 409(b) ; Torres v. Sedgwick Avenue Dignity Developers LLC , 74 Misc 3d 1209[A], 2, 2022 N.Y. Slip Op. 50085[U], 2022 WL 433656 [Civ Ct, Bronx County 2022] citing Triangle Pac. Bldg. Products Corp., v. National Bank of North America , 62 A.D.2d 1017, 404 N.Y.S.2d 121 [2nd Dept. 1978] (holding that CPLR § 409 and § 410 mandate a trial only of those issues "which cannot be disposed of by summary determination upon the pleadings.")).
As such, no formal CPLR 3212 motion is required, though one can be made.
Under CPLR 409(b), it is the court's duty to search the record and make summary determinations where appropriate. (see Sukaj Group LLC v. Mallia , 66 Misc. 3d 1223[A], 2, 2020 N.Y. Slip Op. 50218[U], 2020 WL 809415 [Civ. Ct., Bronx County 2020], citing 1091 River Avenue LLC v. Platinum Capital Partners, Inc. , 82 A.D.3d 404, 917 N.Y.S.2d 854, 2011 N.Y. Slip Op. 01518 [1st Dept. 2011] ).
Summary judgment, of course, is a drastic remedy and must be denied if there is any doubt as to the existence of material and triable issues of fact. (see Miller v. Delarosa , 58 Misc. 3d 1211(A), *4, 2018 WL 454240 [Civ. Ct., Bronx County 2018] citing Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ).
Here, summary judgment is not appropriate as respondent's answer raises at least two triable issues: that he is a tenant [based on rent payments]; and that a lease offer vitiated the termination notice. Petitioner's denials and respondent's credibility are not considered at this time. (see Rodriguez v. Parkchester South Condominium, Inc. , 178 A.D.2d 231, 577 N.Y.S.2d 52 [1st Dept. 1991] (the court should not pass on issues involving credibility); see also 366 Audubon Holdings, Lcc v. Morel , 22 Misc. 3d 1108(A), *5, 2008 WL 5501288 [Sup. Ct., New York County 2008] ("After searching the record, this court is really left with the parties’ dueling affidavits which raise a material question about defendant's tenancy status ... that must be resolved at trial.)).
CONCLUSION
Based on the above, petitioner's motion to vacate the ERAP stay and restore the matter to the court's calendar is granted. Respondent's cross-motion to dismiss the proceeding is denied. Petitioner's application to search the record and grant him summary judgment is denied.
This constitutes the Decision of the court.
SO ORDERED.