Opinion
L & T 82568/2014
07-29-2016
Missionary Sisters,, Petitioner-Landlord v. James J. Lavelle, Respondent- Tenant, "John Doe" & "Jane Doe" Respondents-Undertenants.
KUCKER & BRUH, LLP Attorneys for Petitioner By: Andrew Bittens, Esq. 747 Third Avenue New York, New York 10017 212.869.5030 KOSSOFF, PLLC Attorneys for Respondent By: Ranakdevi Londoner, Esq. 217 Broadway, Suite 401 New York, New York 10007 212.267.6364
KUCKER & BRUH, LLP Attorneys for Petitioner By: Andrew Bittens, Esq. 747 Third Avenue New York, New York 10017 212.869.5030 KOSSOFF, PLLC Attorneys for Respondent By: Ranakdevi Londoner, Esq. 217 Broadway, Suite 401 New York, New York 10007 212.267.6364 Sabrina B. Kraus, J. BACKGROUND
This summary holdover proceeding was commenced by MISSIONARY SISTERS (Petitioner) against JAMES J. LAVELLE (Tenant), the rent-stabilized tenant of record, seeking to recover possession of 201 East 19th Street - Apt. 17N, New York, NY 10003 (Subject Premises) based on the allegation that Respondent does not reside in the Subject Premises or maintain it as his primary residence. JAMES L. LAVELLE(JL), Respondent's son, is living in the Subject Premises.
PROCEDURAL HISTORY
Petitioner issued a Notice of Nonrenewable dated May 5, 2014, asserting that Respondent had not been seen residing at the Subject Premises for an extensive period of time, and lives in Montgomery, New York, and that JL, resides in the Subject Premises.
Tenant's lease expired September 30, 2014. The Notice of Petition issued October 27, 2014, and the proceeding was initially returnable November 13, 2014.
On December 11, 2014, Counsel filed a Notice of Appearance for Tenant.
On December 12, 2014, both Respondents made a pre-answer motion to dismiss.
On December 15, 2014, the same law firm filed a Notice of Appearance for JL.
On February 11, 2015, Petitioner cross-moved to amend the caption and pleadings and for related relief.
On April 17, 2015, the court (Milin, J) denied both motions. The court found that JL was not a necessary party to the proceeding, and that the record was insufficient for the court to determine whether JL had assumed occupancy of the Subject Premises with tenant at the inception of the tenancy. The court further held that service on John Doe was not intended to be applicable to JL, and that JL had not been sued by Petitioner. Finally, the court concluded amendment to include JL was not appropriate, because Petitioner had not moved for permission to join an additional party.
On May 7, 2015, counsel filed an answer only on behalf of Tenant and not on behalf of JL, notwithstanding their prior appearance and motion practice on JL's behalf. Although the answer is asserted to be filed only on behalf of Tenant, it also asserts defenses on behalf of JL. The answer further asserts procedural defenses. The answer acknowledges that Tenant does not primarily reside in the Subject Premises, and asserts that Petitioner was aware that Tenant never had any intention of residing in the Subject Premises. The answer asserts that JL is the true tenant of the Subject Premises and has resided there since the inception of the tenancy, and that Tenant only visits on occasions he needs to be in New York City. The answer asserts that JL is entitled to a renewal lease as the de facto tenant.
On June 29, 2015, Petitioner moved for disclosure of Tenant and related relief. That motion was withdrawn pursuant to a stipulation between the parties that provided that the proceeding was marked off calendar pending motion practice.
THE PENDING MOTION
On May 19, 2016, Petitioner moved for an order striking Respondents' defenses, summary judgment and related relief. On July 27, 2016, the court heard argument and reserved decision.
Petitioner's motion to dismiss the first affirmative defense is denied, such defense is not subject to pre-trial dismissal as it may be raised at any time even if not asserted (Riland v Frederick S. Todman & Co.56 AD2d 350). The motion to dismiss the second, third and sixth affirmative defenses is granted, it is already law of the case that Tenant is not a necessary party, and that Petitioner has standing to maintain this proceeding and Judge Milin already denied Respondents' motion to dismiss on these claims. The motion to dismiss the fourth and fifth affirmative defenses is also granted. As noted by Judge Milin, the RPAPL authorizes Petitioner to maintain the proceeding as the lessor, and neither defense as alleged presents a defense to the underlying non-primary residence proceeding. The motion to dismiss the seventh and eighth affirmative defenses is granted, the notice does comply with applicable statutory requirements, and is sufficient to apprise Respondent of the underlying basis of the proceeding.
The motion to dismiss the tenth and eleventh affirmative defenses is granted. There is no defense of laches applicable to a non-primary residence proceeding and there is no ability to waive the non-primary residence requirements applicable under Rent Stabilization.
The remaining substantive defense is the ninth affirmative defense. The defenses as pled is no defense as to Petitioner's request for a judgement against Tenant however, it is essentially an illusory tenancy claim on behalf of JL
At argument, Respondents' counsel alleged that JL had never appeared in this proceeding and that counsel did not represent JL. Both of these claims are belied by the Notice of Appearance filed for JL by counsel and the motion to dismiss which counsel made on behalf of both Respondents. Jl submitted an affidavit in support of said motion.
If in fact JL had not appeared herein, Petitioner would indeed be entitled to summary judgment, but as discussed below, JL has in fact appeared and submitted to the court's jurisdiction.
RPAPL § 743 provides that any person in possession of the premises may answer orally or in writing and assert any legal defense or counterclaim. Thus, an occupant that has not been named or served is deemed to intervene if said occupant appears and or files an answer (Cobert Construction Corp. v Bassett 109 Misc 2d 119; Decaudin v Velazquez 15 Misc 3d 45). No formal application to the court is required, the appearance is allowed as a matter of right by statute.
CPLR § 320 (a) provides that a party appears by serving an answer or a notice of appearance, or by making a motion, which has the effect of extending the time to answer. In this proceeding, counsel has both filed a notice of appearance on behalf of JL and made a pretrial motion to dismiss on his behalf. Based on the foregoing, JL has submitted to the jurisdiction of the court and become a party herein (Dyker Heights Home for Blind Children v Stolitzky 250 AD 229; Henderson v Henderson 247 NY 428; 16 Lincoln Square Associates v Amrep Corp 129 Misc 2d 697).
CPLR § 320 (b) provides that a party's appearance is the equivalent to personal service of the pleadings upon him unless an objection to jurisdiction is asserted in a pre-answer motion pursuant to 3211(a)(8) or an answer is filed raising such objection. Respondents' pre-answer motion to dismiss did not seek dismissal pursuant to 3211(a)(8), nor has JL elected to file an answer asserting said defense.
Moreover, while the answer filed is purportedly only on behalf of the Tenant, the ninth affirmative defense pleads that JL is entitled to be issued a lease renewal in his own name and can not in anyway be considered a defense pled on behalf of Tenant.
Finally, to the extent that Respondents' strategy has been that while JL is fully aware of the proceeding he has not elected to file an answer or participate beyond the 3211 motion, such a strategy will not lie. A nonparty occupant of a premises, who is aware of a summary proceeding but elects not to serve an answer in that proceeding, may loose the opportunity to contest the proceeding on the merits [1234 Broadway LLC v Huang 44 Misc 3d 1 (App Term, 1st Dept) holding it was reversible error for trial court to allow nonparty occupants to submit an answer four years after the commencement of the summary proceeding of which they had full knowledge of and chose not to contest earlier ].
In this proceeding, the only real issue is JL's claim to a renewal lease, as set forth in the ninth affirmative defense asserted in Tenant's answer. There ought to be a determination on the merits as to JL's claim to tenancy. Given the circumstances, the court deems said defense asserted on behalf of JL, and the defense raises issues of fact not subject to summary determination.
Based on the foregoing, Petitioner's motion for summary judgment is denied.
Similarly, Petitioner's motion for discovery as to Tenant is denied. There is no ample need to pursue such discovery, as Tenant acknowledges he does not reside in the Subject Premises.
Petitioner's motion for use and occupancy is granted to the extent of directing Respondents to pay use an occupancy at the last lease rate from August 2016 forward by the tenth of each month, without prejudice to the rights and claims of any of the parties.
The proceeding is set for trial on September 6, 2016 at 9:30 am.
This constitutes the decision and order of the court. Dated: New York, New York July 29, 2016 Sabrina B. Kraus, JHC