Opinion
77516/2016
01-28-2019
SAM AND JOSEPH SASSON LLC, Petitioner, v. Corinthians GUY and Penny Guy, Respondents.
Sam and Joseph Sasson LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Corinthians Guy ("Respondent"), a respondent in this proceeding, and Penny Guy ("Co-Respondent"), another respondent in this proceeding (collectively, "Respondents"), seeking possession of 110 West 14th Street, Apt. 2, New York, New York ("the subject premises"), on the ground, inter alia , of breach of a substantial obligation of their tenancy, to wit, that Respondents engaged in illegal alterations of the subject premises to the extent that they put up partition walls and engaged in rewiring. After trial, the Court rendered a decision on December 14, 2018 ("the Decision") according to which the Court, inter alia , awarded Petitioner a final judgment of possession but stayed issuance of the warrant to afford Respondents an opportunity to cure the breach of their lease. Respondents now move for relief pursuant to CPLR §§ 2221, 4404(b), and 5019(a), to wit, for an order, inter alia , determining the original condition of an electrical panel, determining whether a permit is required for removal of partition walls and whether Petitioner's demands must be satisfied, and, alternatively, for a stay pursuant to RPAPL § 753(4) and CPLR § 2201.
Respondents move for relief, in part, with regard to a waiver defense that they had previously raised. The Court addressed Respondents' waiver defenses on pages 26 through 28 of the Decision, which the Court incorporates by reference herein. As stated in the Decision, a waiver defense can be barred when the breach claimed to be waived implicates safety or public policy. As the Court found that Respondents' alterations affected policies concerning wiring safety and light and air, the Court applied to Respondents' waiver defense an analysis typically applied to alterations cases. Such an analysis finds a waiver of an alteration when made with a landlord's permission and/or consent or when a landlord refused to correct a condition complained of. The Court found that the record did not support either proposition. Accordingly, the Court denies so much of Respondents' motion as seeks to dismiss Petitioner's cause of action sounding in illegal alterations based on a waiver defense.
Respondents also raise in reply the Court's putative denial of Respondent's motion to amend their answer to include a defense of statute of limitations. Respondents characterize themselves as "pro se" at the time of such a denial. Such characterization fails to mention that Respondents actually appeared by counsel who answered on their behalf and did not interpose a statute of limitations defense on their behalf. The failure to assert the statute of limitations as a defense in the answer waives the defense. Dougherty v. Rye , 63 NY2d 989, 991-992 (1984), Horst v. Brown , 72 AD3d 434 (1st Dept.), appeal dismissed , 15 NY3d 743 (2010).
In the Decision, the Court found that Respondents had illegally altered the subject premises by engaging in electrical work without a permit and by putting up partition walls. The Court ruled that Respondents could cure by legally removing the partition walls and engaging in the necessary and legal work to restore the panel and subpanel to their original condition. Respondents move for relief with regard to this aspect of the decision, seeking clarification of the scope of the work Respondents must do in order to be deemed to cure.
The subject premises has a main panel. Respondents apparently effectuated a connection of a subpanel to the main panel. Despite the discordant tone between the parties in their motion papers, both sides concur that removal of the subpanel and the connections from the subpanel to the main panel would be appropriate. Respondents annex to their papers a permit application for the removal of the subpanel and connections from the main panel to the subpanel. In opposition to Respondents' motion, Petitioner submits an affidavit of Salvatore Trincieri ("the Trincieri affidavit"), an electrician detailing how such a removal could be effectuated, which does not actually contradict one of the permit applications Respondents already had their electrician prepare.
Nonetheless, Respondents argue that a removal of the subpanel alone will leave a noncompliant main panel. In support of their argument, Respondents' electrician submits an affidavit in support of Respondents' motion to the effect that the main panel "appears" to have been in a substandard and illegal condition. Respondents also direct the Court to trial testimony according to which Respondents' electrician averred that the main panel is "old" and needs to be replaced, and that fastening should be tightened up. Respondents' electrician also testified that, in order to keep the subpanel, the main panel would have to be replaced. Respondents further direct the Court to the testimony of Petitioner's electrician on cross-examination, responding to the question as to what work would need to be done to "fix" the main panel, answering that it would "probably" have to be replaced.
Respondents are essentially asking the Court to direct Petitioner to take remedial action with regard to the main panel pursuant to New York City Civil Court Act § 110(c). The trial, however, was about Petitioner's holdover causes of action against Respondents and Respondents' defenses thereto. The stray testimonial statements above do not make a record sufficient for the Court to award Respondents the relief that they seek, relief which is particularly unripe given that Respondents must first cure their own breach of the lease occasioned by their rewiring of the subject premises. While Respondents seek to add more information in this vein on reply, the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion. Stang LLC v. Hudson Square Hotel, LLC , 158 AD3d 446, 447 (1st Dept. 2018), All State Flooring Distribs., L.P. v. MD Floors, LLC , 131 AD3d 834, 836 (1st Dept. 2015). Accordingly, the Court grants Respondents' motion with regard to the wiring solely to state that a cure of that breach would consist of removal of the subpanel as outlined in the Trincieri affidavit.
Respondents also move for an order determining the appropriateness of various demands of Petitioner. For background, Respondents' electrician averred in support of Respondents' motion that Respondents cannot engage in remedial work without a permit, which requires Petitioner's sign-off. In anticipation of this condition, Respondents sought at trial, and the Court granted, an order pursuant to New York City Civil Court Act § 110(c) that Petitioner sign off on any document to obtain the permits necessary to effectuate a cure. Before signing off as such, Petitioner demanded, inter alia , that Respondents use a licensed architect or engineer, that Respondents agree that work cannot begin until permits are issued, that Petitioner inspect the work, that Respondents obtain certificates of insurance of $ 1 million, that Respondents have their contractors waive liens, that Respondents remove construction debris at their own expense, and that Respondents engage a sprinkler contractor.
Petitioner also originally sought to have Respondents pay for an architect's fee, although Petitioner indicated in its opposition that Petitioner now no longer seeks that condition.
As Respondents themselves rewired the subject premises and constructed partition walls without written consent in breach of their lease, Respondents themselves bear the responsibility for curing, not Petitioner. Accordingly, Petitioner's demands for insurance and a lien waiver and that Respondents dispose of debris at their own expense are reasonable, although the latter demand cannot be fulfilled until after the work is completed, so it cannot be a prerequisite to a sign-off to obtain a waiver. Petitioner's demand to inspect is reasonable, although such an inspection may be done after Respondents notify Petitioner of completion of the work. If Petitioner wishes to obtain access to the subject premises in the interim, the parties may arrange that, but access in advance, as Petitioner seeks, is not a reasonable prerequisite to Petitioner's sign-off on documents necessary to obtain a permit.
The parties dispute whether Respondents need to obtain a permit in order to remove the partition walls. No permit is required for "minor alterations and ordinary repairs." N.Y.C. Admin. Code § 28-105.4.2. "Minor alterations" refers to changes "that do not in any way affect health or the fire or structural safety of the building" and shall not include, inter alia , removal of any load-bearing or required fire-rated wall. Id. While the record at trial does not show that the partition walls Respondents constructed in 2008 out of sheetrock are "load-bearing" in any way, the regulations are more specific, to wit, a permanent removal of a non-fire and non-load-bearing wall in Group R occupancies do not require a permit if such a removal is limited to the lesser of 50% of a given wall surface or 45 square feet in area. 1 R.C.NY § 101-14(d)(III)(2). The evidence lends itself to the inference that the partition walls are of a greater surface volume than provided in the regulation.
Residential Group R includes, among others, the use of a building for dwelling purposes. N.Y.C. Admin. Code § BC 310.1.
Regulations are generally subject to same canons of construction as statutes. ATM One, LLC v. Landaverde , 2 NY3d 472, 477 (2004), Matter of Cty. of Oneida v. Zucker , 147 AD3d 1338 (4th Dept. 2017). Where a law expressly describes a particular thing to which it shall apply, the Court must draw an "irrefutable inference" that the drafters intended to omit or exclude what the drafters omitted or excluded. Myers v. Schneiderman , 30 NY3d 1, 12 (2017), Matter of Shannon , 25 NY3d 345, 352 (2015), Matter of Raynor v. Landmark Chrysler , 18 NY3d 48, 56 (2011), Town of Riverhead v. NY State Bd. of Real Prop. Servs. , 5 NY3d 36, 42-43 (2005). The specific mention of removal of a smaller surface area as exempt from permitting requirements therefore compels the conclusion that removal of surface area in a volume contemplated herein requires a permit. Cf . 29-33 Convent Ave. Hous. Dev. Fund Corp. v. Bost , 48 Misc 3d 1219(A) (Civ. Ct. NY Co. 2015) (a judgment was obtained against a tenant for, inter alia , removing a wall without a permit, although it was ambiguous whether the wall was load-bearing)
Insofar as 1 R.C.NY § 101-14(d)(III)(2) requires a permit, Respondents argue that the regulation conflicts with the exemption outlined in N.Y.C. Admin. Code § 28-105.4.2 of "minor repairs" from permitting requirements. However, as "minor repairs" can conceivably encompass activities other than removal of non-load-bearing walls, the statute and the regulation are not necessarily in conflict with one another. To the extent they are, a general statute, like N.Y.C. Admin. Code § 28-105.4.2 yields to a specific or special statute like 1 R.C.NY § 101-14(d)(III)(2). People v. Zephrin , 14 NY3d 296, 301 (2010), Dutchess Cty. Dep't of Soc. Servs. ex rel. Day v. Day , 96 NY2d 149, 153 (2001), Velez v. Port Auth. of NY & N.J. , 111 AD3d 449, 450 (1st Dept. 2013). Accordingly, the Court finds that the applicable statutory and regulatory scheme applying to removal of the partition walls requires a permit. Thus, in addition to the demands the Court listed above, Respondents' obligation to legally cure renders Petitioner's demands for licensed personnel and permitting reasonable.
The Court does not find that Petitioner's demand with regard to engagement of a sprinkler contractor is reasonable given the lack of evidentiary support for such a demand in the record. Moreover, obtaining a permit for the removal of partition walls should encompass relevant safety issues as such.
Respondents also move for a stay. RPAPL § 753(4) provides for a ten-day stay of issuance of the warrant of eviction to enable a tenant found to have breached a lease to cure the breach, which the Court issued in the Decision. As of this writing, Respondents have not yet cured. However, if a tenant commences a cure within ten days of a landlord being awarded a judgment and expeditiously and with due diligence pursues a cure, a tenant may be deemed to have cured even though it took longer than contemplated by RPAPL § 753(4). Eighth-19th Co. v. Scarano , N.Y.L.J Feb. 5, 1992 at 21:2 (App. Term 1st Dept.). The record on this motion practice shows that Respondents have been making diligent efforts to cure the wiring breach and the partition breach in the subject premises, although the breach regarding the wiring must take priority. As RPAPL § 753(4) is remedial in nature, the benefits of a post-judgment cure should be liberally construed. Post v. 120 East End Ave. Corp. , 62 NY2d 19, 24 (1984), 86 W. Corp. v. Singh , 30 Misc 3d 127(A)(App. Term 1st Dept. 2010), Grand Cru Property Thirty-One LLC v. Ramos , N.Y.L.J. Sept. 20, 2001 at 19:5 (App. Term 1st Dept.). RPAPL § 753(4) was enacted to permit tenants to remain in possession by curing the violation after the rights of the parties have been adjudicated. Nestor v. McDowell , 81 NY2d 410, 414 (1993).
Even in the absence of RPAPL § 753(4), the Court retains the jurisdiction to issue a stay on equitable grounds. CPLR § 2201. In this vein, the Court notes that the record at trial shows no dispute that Respondents have been in possession of the subject premises for well over forty years and are now subject to the Rent Stabilization Law after the subject premises was converted to a legal dwelling pursuant to the Loft Law. To the extent that preservation of such a tenancy is salutary, Lafayette Boynton Hsg. Corp. v. Pickett , 135 AD3d 518 (1st Dept. 2016), Harvey 1390 LLC v. Bodenheim , 96 AD3d 664 (1st Dept. 2012), 6465 Realty Co. v. Tsugiyama , 47 Misc 3d 138(A)(App. Term 1st Dept. 2015), Nagle 112, LLC, v. Miqui , 46 Misc 3d 149(A)(App. Term 1st Dept. 2015), and as Respondents have already engaged an electrician and taken other affirmative steps, the Court finds that there is good cause at this posture to extend a stay to enable a cure.
Accordingly, it is
ORDERED that Respondents' motion seeking relief on the basis of a waiver defense is denied, and it is further
ORDERED that a cure of the breach of Respondents' tenancy insofar as Respondents engaged in alterations consists of a removal of the subpanel and connections from the main panel to the subpanel as set forth in the Trincieri affidavit, and it is further
ORDERED that a cure of the breach of Respondents' tenancy insofar as Respondents constructed partition walls requires Respondents to obtain a permit, and it is further
ORDERED that Petitioner provide appropriate sign-offs on any permitting that Respondents need, although Petitioner may condition such sign-offs on Respondents' use of a licensed architect, engineer, or electrician, on Respondents refraining from work until permits are issued, on a certificate of insurance of $ 1 million with Petitioner an insured party, and on a lien waiver, and it is further
ORDERED that Petitioner may inspect the work on completion of the work, and it is further
ORDERED that Respondents remove construction debris at their own expense, and it is further
ORDERED that issuance of the warrant of eviction shall be further stayed through February 7, 2019, without prejudice to an additional stay based on a showing that Respondents have continued to diligently pursue a cure.