Opinion
L & T 50391/17
12-12-2019
SHALOM ALEICHEM LLC, Petitioner-Landlord, v. Eric BORENSTEIN, "John Doe" and "Jane Doe", Respondents-Occupants.
For Petitioner: David L. Moss & Associates, 370 Lexington Avenue, Suite 2102, New York, NY 10017, Respondent, pro se
For Petitioner: David L. Moss & Associates, 370 Lexington Avenue, Suite 2102, New York, NY 10017, Respondent, pro se
Petitioner, Shalom Aleichem LLC ("petitioner"), seeks a judgment of possession for the rent-stabilized premises, Apartment F45 at 3605 Sedgwick Avenue, Bronx, New York from respondents Eric Borenstein ("respondent") and other unknown occupants upon the allegation that respondents are licensees whose license to occupy the premises terminated when Paul Borenstein, the last tenant of record vacated the apartment in 2001. Respondent, by counsel, interposed an answer asserting that the predicate notice was defective and challenging the regulatory status of the subject premises, as pleaded in the petition. Respondent alleged that petitioner had improperly pleaded the regulatory status of the apartment as rent-stabilized, and that he is a rent-controlled tenant of the subject premises whose occupancy cannot be terminated by the ten-day Notice to Quit petitioner caused to be served upon him. Thereafter, respondent brought a motion for summary judgment and dismissal of the petition pursuant to CPLR §§ 3211(a)(5) and 3212. The Resolution Part Judge denied respondent's motion, finding that the subject premises had been properly removed from rent-control and was rent-stabilized, implicitly holding that the regulatory status of the premises had been properly pleaded in the petition. The court restored the matter to the calendar for all purposes and thereafter transferred the proceeding for trial. Following trial, for the reasons stated below, this court dismisses the petition.
Petitioner supported its prima facie case with the sworn testimony of its agent, David Tennenbaum. Mr. Tennenbaum testified that he manages and oversees petitioner's legal department. Petitioner also submitted certified copies of the deed, which indicates that petitioner became the owner of the subject building in March 2013; the multiple dwelling registration; and the DHCR rent records for the building. In addition, petitioner submitted a lease dated April 1, 1983 between Lekaj Realty Corp, a predecessor in interest, and Rose Borenstein, as the named tenant of the premises; a lease dated October 20, 2012 listing Paul Borenstein as tenant of the subject premises, bearing the signature "Paul Borenstein"; and a death certificate issued by the state of Florida which represents that Paul Borenstein died on July 29, 2012. Petitioner's agent stated that it was not petitioner's goal to evict respondent, that petitioner had in fact offered respondent a renewal lease, but respondent refused to sign the rent-stabilized lease, maintaining that he is a rent-controlled tenant. Petitioner, nonetheless, sought a judgment for possession of the premises.
Respondent testified that he has resided at the subject premises since his parents moved there in 1942, and that petitioner had accepted rental payments from him, made in his own name, for years. Respondent submitted into evidence copies of 21 negotiated personal checks, bearing respondent's name, the subject address and respondent's signature. The checks were made payable to "Shalom Aleichem LLC" and the memo line on each check states, "rent for" and list months ranging April 2013 through December 2014. Respondent also submitted, without objection, a letter bearing petitioner's letterhead, addressed to respondent, dated January 7, 2015, signed by "Jane Reiss Property Manager". The letter states that Ms. Reiss had been trying to reach respondent by telephone, had left several messages and now sought to inform respondent in writing that petitioner had determined that respondent was entitled to succeed to Paul Borenstein's tenancy. Ms. Reiss was seeking to make arrangements for respondent to sign a new lease and informing respondent that petitioner could no longer accept rent payments from him until such arrangements were made. In addition, respondent provided medical records from June 1971 bearing his name and the subject address. The credible evidence established that respondent resided at the premises since that date and petitioner provided no evidence to the contrary. It is undisputed that Paul Borenstein had been respondent's brother and Rose Borenstein was their mother.
While it is apparent that the real dispute between the parties concerns the regulatory status of the subject premises, that is not the issue before this court. Petitioner commenced this holdover proceeding pursuant to RPAPL § 713(7), upon the allegation that respondent is a licensee who possessed no independent right to occupy the premises and sought a judgment of possession against respondent on that basis. However, the credible and undisputed evidence at trial established that petitioner, in writing, acknowledged respondent as the successor tenant of the subject premises, more than two years prior to commencement of this proceeding. Where, as here, petitioner has recognized an occupant as a rent-regulated tenant, petitioner cannot thereafter properly maintain a licensee proceeding against that individual. See e.g. , Carbonella v. Carbonella 52 Misc 3d 141(A) (App Term, 2nd Dept 2016) ; Federal Home Loan Mortg. Ass'n v. Perez , 40 Misc 3d 1 (App Term, 2nd Dept 2013) ; ABJ Milano LLC v. Howell , 61 Misc 3d 1037, 1040 (Civ Ct, NY County 2018). Accordingly, the court dismisses this petition. The parties may collect their exhibits from the Part within the next 14 days.
This constitutes the decision and order of the court.