Opinion
L & T 51335/19
09-20-2019
Minnie ROGERS, Petitioner-Landlord, v. Charlotte PAYNE, Respondent-Tenant, John Payne, "John & Jane Doe," Respondents-Undertenants.
Hal L. Rose, Esq., Goldberg, Lustig & Steckler PLLC, 188 Montague Street, Suite 500, Brooklyn, NY 11201 Attorneys for Petitioner, Emma Salas, Esq., Queens Legal Services, 89-00 Sutphin Blvd., 5th Floor, Jamaica, NY 11435 Attorneys for Respondent, John Payne,Rima Nayberg, Guardian ad Litem for Respondent Charlotte Payne
Hal L. Rose, Esq., Goldberg, Lustig & Steckler PLLC, 188 Montague Street, Suite 500, Brooklyn, NY 11201
Attorneys for Petitioner, Emma Salas, Esq., Queens Legal Services, 89-00 Sutphin Blvd., 5th Floor, Jamaica, NY 11435
Attorneys for Respondent, John Payne,Rima Nayberg, Guardian ad Litem for Respondent Charlotte Payne
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion for summary judgment pursuant to CPLR § 3212 and Petitioner's cross-motion for a judgment pursuant to RPAPL § 745 and for use and occupancy:
Papers Numbered
Notice of Motion & Affidavit/Affirmation/Exhibits Annexed 1
Notice of Cross-Motion & Affirmation (in Support & in Opposition)/Affidavit/Exhibits Annexed 2
Affirmation in Opposition to Cross-Motion & in Reply 3
Reply Affirmation in Support (of Cross-Motion) & Further Opposition 4
Court File Jacket 5
Upon the foregoing cited papers, the decision and order on Respondent's motion for summary judgment and Petitioner's cross-motion for a judgment and for use and occupancy is as follows:
PROCEDURAL HISTORY
The immediate holdover proceeding was commenced by Notice of Petition and Petition dated January 8, 2019. The Petition alleges that the apartment is exempt from rent regulation, and states that Respondent Charlotte Payne's tenancy has been terminated pursuant to a 30-day notice. On the first court date, February 6, 2019, Queens Legal Services appeared for Respondent John Payne (through the Universal Access program) and the proceeding was adjourned to March 19, 2019. Following multiple adjournments for an APS referral and assessment of Respondent Charlotte Payne (John Payne's mother), Corporation Counsel of the City of New York made a motion to appoint a guardian ad litem for Ms. Payne. The motion was granted without opposition and a guardian ad litem was appointed for Ms. Payne. Concurrently, Respondent John Payne, through counsel, filed a motion for summary judgment. Petitioner opposed the motion and cross-moved for a judgment and for use and occupancy. After opposition and reply papers were submitted for both motions, the Court heard argument on the motions on July 9, 2019 and reserved decision.
ANALYSIS
Respondent's Motion for Summary Judgment
A party moving for summary judgment pursuant to CPLR § 3212 must "establish [its] cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Mfrs. , 46 NY2d 1065, 1067 (1980) (citing CPLR § 3212(b) ). Contrariwise, "to defeat a motion for summary judgment, the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ " Id. (citing CPLR § 3212(b) ).
Here, Mr. Payne moves for summary judgment on his retaliatory eviction defense, brought pursuant to Real Property Law (RPL) § 223-b. Mr. Payne states in his affidavit that he spoke to Petitioner about needed repairs in September 2018 and October 2018, and that after Petitioner failed to undertake repairs, he called 311 to lodge complaints with the Department of Housing Preservation and Development ("HPD"). Attached to the motion is an HPD Complaint History showing a complaint for "pests" (mice and roaches) on October 31, 2018. Additionally, Mr. Payne shows proof that he commenced an HP proceeding (Index No. HP 1526/18) to correct various conditions on November 13, 2018. Three days later, on November 16, 2018, HPD issued several violations for conditions at the subject premises. Soon thereafter, on November 20, 2018, Petitioner issued a "Thirty (30) Day Notice of Termination" (hereinafter "30 Day Notice") to the Respondents. The 30 Day Notice serves as the predicate for the immediate holdover proceeding.
The Court has taken judicial notice of the complaints on the HPD website pursuant to Multiple Dwelling Law (MDL) § 328(3).
Although the HP proceeding was brought on behalf of Charlotte Payne and John Payne, the Petition appears only to be signed by "J Payne."
The Court has taken judicial notice of the violations on the HPD website pursuant to MDL § 328(3).
Real Property Law § 223-b(1) states that "[n]o landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for" either a "good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes [or rent gouging]," or "actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, under [the statutory warranty of habitability], or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to [rent gouging], or "[t]he tenant's participation in the activities of a tenant's organization." Under RPL § 223-b(5), a "rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within six months after" a good faith complaint was made to a governmental authority or the tenant in good faith commenced an action or proceeding to enforce rights under the lease/rental agreement or applicable laws regulating premises used for dwelling purposes.
The Housing Stability and Tenant Protection Act (HSTPA) of 2019 expanded the protections of RPL § 223-b, but the amendments to that section apply only to cases commenced on or after the effective date of the statute (June 14, 2019). See Laws 2019, ch 36, § 29 (Part M). The immediate proceeding was commenced on January 8, 2019, so the amendments are not applicable herein.
Before reaching Mr. Payne's argument that the presumption of retaliation should apply as a result of his complaints to HPD and commencement of an HP proceeding less than six months prior to Petitioner's service of the 30 Day Notice and the filing of this holdover proceeding, the Court first assesses Petitioner's argument that Mr. Payne does not have standing to claim retaliatory eviction since he is not a tenant. Petitioner cites to Kenilworth Equities Ltd. v. Di Donato , 8 Misc 3d 130(A), 801 N.Y.S.2d 778 (App. Term 9th & 10th Jud. Dists. 2005) for the proposition that a "licensee" does not have standing to assert a claim for retaliatory eviction. Although the Appellate Term in Kenilworth Equities Ltd. did not specifically refer to "licensees," it unequivocally held that an occupant who was not a party to a lease between the landlord and the tenant of record did not have standing to assert a retaliatory eviction claim. Kenilworth Equities Ltd. , 8 Misc 3d at 130(A), 801 N.Y.S.2d at 778. Although Mr. Payne states in his affidavit that he moved in with his mother in order to help her since she was suffering from dementia, the fact remains that only Ms. Payne is a tenant of the subject premises pursuant to a lease. Notwithstanding Mr. Payne's sympathetic plight, the Court must follow the Appellate Term's decision in Kenilworth Equities Ltd. and is constrained to deny the motion for summary judgment as a result of Mr. Payne's lack of standing to raise a retaliatory eviction claim under RPL § 223-b.
This determination is without prejudice to any of Charlotte Payne's potential defenses or claims.
Petitioner's Cross-Motion for a Judgment
Petitioner's cross-motion is made pursuant to RPAPL § 745 and seeks a money judgment in the amount of $9,000.00, a possessory judgment, and use and occupancy pendente lite . RPAPL § 745(2)(a) requires that a court direct a respondent to deposit with the court all rent and use and occupancy due "upon the second of two adjournments at the request of the respondent, or upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner." The Appellate Term, Second Department has held on multiple occasions that adjournments consented to by the parties do not count towards the two adjournments stated in the statute and cannot be charged against a respondent with regard to the running of the thirty days. See Front St. Rest. Corp. v. Ciolli , 55 Misc 3d 104, 107, 49 N.Y.S.3d 811, 813 (App. Term 2d, 11th & 13th Jud. Dists. 2017) ; Myrtle Venture Five, LLC v. Eye Care Opt. of NY, Inc. , 48 Misc 3d 4, 6, 11 N.Y.S.3d 796, 798 (App. Term 2d, 11th & 13th Jud. Dists. 2015) ; see also 1747 Assoc., LLC v. Raimova , 56 Misc 3d 1216(A), 65 N.Y.S.3d 492 (Civ. Ct. Kings County 2017).
The HSTPA also amended RPAPL § 745, but the amendments apply only to proceedings commenced on or after July 14, 2019. See Laws 2019, ch 36, § 17 (Part M); Laws 2019, ch 39, § 34 (Part Q).
The Court has reviewed the file and file jacket for the immediate proceeding and finds no indication that any adjournment has been specifically at Respondents' request. The first adjournment was by two-attorney stipulation. The second adjournment was made by the Court to refer Charlotte Payne to Adult Protective Services. The third adjournment was again made by the Court, awaiting a psychiatric evaluation of Ms. Payne. The fourth adjournment was made by two-attorney stipulation. The following two adjournments (up until the argument on the immediate motions) were made on consent, as the court file does not indicate that they were made on either Respondent's request. Therefore, there is no basis for the Court to order a rent deposit or judgment pursuant to RPAPL § 745. Moreover, since use and occupancy in a summary proceeding must be sought within the confines of RPAPL § 745 (see Front St. Rest. Corp. v. Ciolli , 55 Misc 3d 104 at 106, 49 N.Y.S.3d at 813 ), the Court denies Petitioner's request for use and occupancy pendente lite (although Petitioner may renew upon any future adjournments that would trigger RPAPL § 745(2)(a) ).
A judgment is only to be granted if a court-ordered rent deposit is not made. See RPAPL § 745(2)(c)(i).
CONCLUSION
In accordance with the foregoing determinations, it is hereby ORDERED that Respondent's motion for summary judgment is denied. It is further ORDERED that Petitioner's cross-motion for a judgment and use and occupancy pendente lite pursuant to RPAPL § 745 is denied. The proceeding is restored to Part A, Room 401, for trial on November 6, 2019 at 9:30 AM. Respondent Charlotte Payne (through her guardian ad litem ) shall be permitted to serve an answer within 14 days of the service of this Decision/Order with notice of entry.