Opinion
Index No. LT-301142-23/NY
06-11-2024
David S. Singer, Petitioner, v. Aiden J. Bezark, Victoria P. Heinlein, John Doe, Jane Doe, Respondents.
Attorneys for Petitioner Cutter Minikes & Adelman LLP Attorneys for Respondent Wenig Saltiel LLP
Unpublished Opinion
Attorneys for Petitioner Cutter Minikes & Adelman LLP
Attorneys for Respondent Wenig Saltiel LLP
VIJAY M. KITSON, J.
Recitation, as required by CPLR § 2219(A), of the papers considered in the review of this Notice of Motion:
Papers Numbered [NYSCEF Doc. No.]
Notice of Motion (Seq. 01)
Affidavits/Affirmations/Exhibits in Support 7 through 9
Affidavits/Affirmations/Exhibits in Opposition (Seq. 01) 11 through 23
Reply Papers (Seq. 01) 33 through 35
Notice of Cross-Motion (Seq. 02)
Affidavits/Affirmations/Exhibits
In Support 12 through 23
Affidavits/Affirmations/Exhibits in Opposition (Seq. 02) 24 through 32
Reply Papers (Seq. 02) 36 through 38
Upon the foregoing cited papers, the Decision/Order on Respondent's Motion for Discovery and Petitioner's Cross-Motion for Summary Judgment are as follows:
David S. Singer (Petitioner) commenced this summary holdover proceeding against Aiden J. Bezark, Victoria P. Heinlein, John Doe, and Jane Doe (collectively Respondents) seeking to recover possession of Apartment 12E in the building known as 1 West 85th Street, New York, NY 10024 (subject premises) upon the filing of the Petition (Ny St Cts Elec Filing [NYSCEF] Doc No. 1), Notice of Petition (NYSCEF Doc No. 3), and their affidavits of service (NYSCEF Doc No 4) on January 13, 2023. The Petition alleges in pertinent part that Respondents are sub-tenants of Petitioner's rent stabilized apartment pursuant to a six-month sublease which had expired and was not renewed after renewal negotiations fell apart, and that Respondents are holding over without Petitioner's permission.
This proceeding first appeared on the court's calendar on February 7, 2023. The proceeding was adjourned to March 10, 2023. In the interim, Respondent interposed an Answer (NYSCEF Doc No. 6) containing affirmative defenses and counterclaims: failure to serve a non-renewal notice, illusory tenancy, failure to allege essential facts, two counterclaims for damages resulting from an alleged overcharge, and a counterclaim for attorney's fees.
On March 10, 2023, the proceeding was adjourned to April 3, 2023. Respondent filed a motion returnable April 3, 2023 (NYSCEF Doc Nos. 7 through 9) seeking an order pursuant to CPLR § 408 and § 3101 granting leave for discovery based on Respondent's affirmative defense of illusory tenancy.
On April 3, 2023, the parties stipulated (NYSCEF Doc No. 10) to adjourn the proceeding to May 4, 2023 for motion practice. Petitioner filed a cross-motion returnable May 4, 2023 (NYSCEF Doc Nos. 11 through 23) seeking an order granting dismissing Respondent's affirmative defenses, granting Petitioner summary judgment and awarding Petitioner a judgment of possession and a separate monetary judgment for all outstanding use and occupancy; or alternatively ordering Respondent to pay ongoing use and occupancy pendente lite. On May 4, 2023, after the parties had fully briefed both motions the court reserved decision after argument.
Respondent's Motion for Discovery
Respondents' motion for discovery seeks disclosure based upon Respondent's second affirmative defense. (NYSCEF Doc No. 6, ¶ 17 through 22) Respondent's second affirmative defense states:
17. The Petitioner is an illusory rent stabilized tenant who has not been a primary resident for years.
18. Upon information and belief, Petitioner maintains his primary residence in California.
19. Petitioner made no request to the Owner to sublet the apartment lawfully to Respondents.
20. Upon information and belief, the owner knew or should have known hat Petitioner was not a primary resident and that he was subletting the unit.
21. Respondents are entitled to protection under the Rent Stabilization Law and Code as rent-stabilized tenants in their own right.
The motion is supported only by an attorney affirmation. Respondents argue that discovery should be granted based on their belief that the Petitioner does not occupy the subject premises as their primary residence and that Petitioner is an illusory tenant violating the rent stabilization laws for pecuniary gain and profiteering. Respondents go further stating that they require to know Petitioner's "true residence" (NYSCEF Doc No. 8, ¶ 13) as if it is a central issue to Respondents' defense in this proceeding and they have made a showing of ample need entitling them to discovery. Respondents also posit that an affidavit of personal knowledge is not required when seeking discovery. Respondents attach a deed to a condominium in Los Angeles, a rent payment receipt, and several text messages to their moving papers.
Petitioner opposes stating that Respondents' motion is not supported by an affidavit of personal knowledge, and that the knowledge of Respondents' attorney is insufficient to demonstrate ample need. Petitioner submitted an affidavit of personal knowledge in opposition to Respondents' motion (NYSCEF Doc No. 13) stating that the subject premises has been his home for over forty years, and that the subject premises is his home. Petitioner states that the subject premises is furnished with his own personal furniture, that the sub-lease was only for six months, that he continues to store his personal effects at the subject premises, and that he has had to defend his apartment against the landlord in litigation citing to several published decisions.
In reply, Respondents submit an affidavit of Respondent Aiden J. Bezark alleging factual admissions made by Petitioner to suggest that he has been absent from the subject premises for at least three years, subletting the entire time.
In a special proceeding, discovery may only be granted with leave of court, and upon a showing of ample need. (NY Univ. v Farkas, 121 Misc.2d 643 [Civ Ct, New York County 1983]). In determining if the a party has demonstrated ample need, the court considers the following factors: whether the party seeking discovery has asserted a cause of action; whether there is a need to determinate information directly related to said cause of action; whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts; whether prejudice will result from the granting of an application for disclosure; whether prejudice can be diminished or alleviated by an order fashioned by the court for this purpose; and whether the court in its supervisory role can structure discovery so that pro se parties will be protected and not adversely affected by discovery requests. Id.
The court in Art Omi, Inc. v Vallejos, 15 Misc.3d 870, 875-76 [Civ Ct 2007], affd 21 Misc.3d 129(A) [App Term 2008] summarized several factors to be examined in determining whether a tenancy is illusory:
"One factor is whether the prime tenant ever occupied or intended to occupy the premises for residential use. A second is whether the prime tenant had dominion and control over the apartment. A third is whether the prime tenant and the landlord colluded in the scheme or whether the landlord had constructive knowledge of it. A fourth is whether the subtenant reasonably expected to continue in possession indefinitely as a rent-regulated tenant when the sublease ends. A fifth is whether the prime tenant profited by overcharging the subtenant. These factors are "indicia that a tenancy is illusory and not as prerequisites to such a finding." (Bruenn v. Cole, 165 A.D.2d 443, 447, 568 N.Y.S.2d 351 [1st Dept. 1991].) No single factor is determinative."
Respondents have failed to set forth facts in their moving papers to demonstrate ample need. The original motion is supported by an affirmation from their attorney that is devoid of any personal knowledge whatsoever. While there is no hard and fast rule that motion for discovery in a special proceeding be accompanied by an affidavit of personal knowledge ( Clinton-178 Towers LLC v Chapple, 58 Misc.3d 198, 206 [Civ Ct 2017] holding an affidavit of personal knowledge not required as a verified pleading may be substituted for an affidavit in many circumstances where the latter is required) both Respondent's attorney's affirmation, and Respondents' answer fails to sufficiently plead the elements of illusory tenancy with factual specificity to demonstrate the ample need necessary to obtain disclosure. The court may consider Respondent Bezark's affidavit in reply as this is not a dispositive motion and the function of a reply affidavit is to address arguments made in opposition the motion (Hernandez v Vasquez, 73 Misc.3d 1213 (A) [Civ Ct 2021]) however, the affidavit fails to adequately set forth facts to satisfy the elements of an illusory tenancy. This glaring inadequacy is amplified when compared to the facts offered in opposition by Petitioner and the Exhibits presented in opposition.
Petitioner is seventy-four years old and has resided in the property for over forty years. Petitioner informed the owner of the building of his plans to travel for a year and sublet the property for six months with a six-month option to renew in accordance with the rent stabilization law (NYSCEF Doc No. 15). The subject premises is furnished with Petitioner's furniture. The sublease between the parties included a carve out for Petitioner to reside at the subject premises during the lease term in the event Respondents go traveling for a period of five days or more. (NYSCEF Doc No. 16) The proposed six-month lease renewal contained a clause that Respondents' cat be removed thirty days prior to the end of the lease term for pet cleaning. The sublease and renewal contained provisions to allow Petitioner the right to use the smaller bedroom and provided for shared spaces elsewhere in the apartment, and for occasional overnight visits. (see NYSCEF Doc No. 17). Petitioner paid rent to the owner of the building in advance of Respondents occupancy. (NYSCEF Doc No. 15). Respondents paid rent to Petitioner, not the owner of the building. (NYSCEF Doc No. 16). Respondents negotiated the lease with Petitioner, not the owner of the building. The sublease between the parties contemplated rent for the subject premises, and additional services for house cleaning and tips to the building staff for the holidays. (NYSCEF Doc No. 16). The sublease renewal offer increased the rent by fifty percent of the rent guidelines increase, and did not exceed fifty dollars. (NYSCEF Doc No. 17). Respondents' occupancy of the subject premises has only been approximately seven months at the time this proceeding was commenced.
Here, Petitioner has demonstrated in opposition to Respondents' motion that they have occupied the subject premises for residential purposes, that Petitioner has exercised dominion and control over the subject premises, and that Respondents did not have an expectation of staying at the subject premises any longer than was contemplated by the sublease and proposed renewal sublease. Furthermore, while Petitioner alleges to have notified the owner of the building that they would be entering into a sublease, Respondents failed to point to any indicia of collusion between the owner of the building and Petitioner.
Having failed to demonstrate that Respondents' have pleaded a valid affirmative defense of illusory tenancy and demonstrated ample need, Respondent's motion for discovery is denied.
Petitioner's Cross-Motion for Summary Judgment and Dismissal of Respondents' Defenses
Petitioner argues that they are entitled to summary judgment as a matter of law, and that Respondents' affirmative defenses should be dismissed. Petitioner argues that Respondents' illusory tenancy arguments are devoid of merit as detailed above, and that Respondents are occupying the premises after their lease term has expired. Petitioner also argues that Respondents were not entitled to a predicate notice because Petitioner offered a renewal lease which Respondents rejected, and that Petitioner is not a landlord within the definition of Real Property Law (RPL) § 226-c. In support of Petitioner's motion he attaches his renewal lease (NYSCEF Doc No. 14), the request to the building's owner to sublet the subject premises to Respondents (NYSCEF Doc No. 15), the sublease between Petitioner and Respondent (NYSCEF Doc No. 16), the proposed sublease renewal offer (NYSCEF Doc No. 17), the revised renewal offer (NYSCEF Doc No. 18), an email thread between Petitioner and Respondent dated December 9, 2022(NYSCEF Doc No. 19), an email thread between Petitioner and Respondent dated December 11, 2022 (NYSCEF Doc No. 20), and a text exchange between Petitioner and Respondent dated December 17, 2022 (NYSCEF Doc No. 21).
Respondents oppose Petitioner's motion arguing that there are numerous issues of fact surrounding Respondents' illusory tenancy affirmative defense, and that Petitioner failed to serve a predicate notice pursuant to RPL § 232-a. Respondents' position that Petitioner was required to serve a notice pursuant to RPL § 232-a is due to the allegation that Petitioner accepted rent payments after the expiration of the lease term creating a month-to-month tenancy. Respondents posit that the court should grant summary judgment in favor of Respondent and dismiss the proceeding due to the lack of predicate notice. In opposition Respondents attach a letter memorializing the sublease between the parties (NYSCEF Doc No. 28), three text messages between Petitioner and Respondent (NYSCEF Doc Nos. 29, 30, 32), and an electronic payment confirmation purporting to be for January 2023 rent (NYSCEF Doc No. 31).
In reply Petitioner argues that neither RPL § 232-a, § 232-c, nor §226-c apply to this proceeding as no rent was accepted by Petitioner after the lease expired, and any moneys that were sent were returned, never creating a month-to-month tenancy. Furthermore, Petitioner states that even if RPL § 226-c were to apply, the email to Respondents on December 9, 2022 satisfied any such requirement. In reply Petitioner attaches a Venmo transaction purporting to have returned payment for January 2023 rent (NYSCEF Doc No. 38).
Summary Judgment
CPLR § 3212 (b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The moving party has the initial burden of establishing a prima facie showing that it is entitled to summary judgment as a matter of law and that no material issues of triable fact exist. See Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-68 (1979). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]) Once this burden has been met, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or [to] demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient," id. The function of the summary judgment procedure is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957).
At the outset, the court notes that neither party has submitted any evidence in admissible form. Of the myriad exhibits attached to Petitioner's cross motion and Respondents' opposition, not one submission has been offered with the proper foundation laid in either the affidavits of Petitioner or Respondents, nor the affirmations of their attorneys. This alone mandates denial of Petitioner's motion.
Assuming arguendo that the submissions were in admissible form, there are a several issues of fact that would preclude an award of summary judgment to either party. First, the parties have competing accounts as to whether rent was paid by Respondents after the expiration of the sublease on December 31, 2022. Respondent states they paid rent creating a month-to-month tenancy, Petitioner states that any money that was paid was returned and a month-to-month tenancy was never created. If a month-to-month tenancy was created, clearly Petitioner did not comply with the predicate notice requirements of RPL 232-a.
Second, does Petitioner's email notification of December 9, 2022 notifying Respondents of his intent not to renew their sublease constitute proper notice under RPL § 226-c? Contrary to Petitioner's position, Petitioner was required to serve a notice of non-renewal pursuant to RPL § 226-c where no month-to-month tenancy was created pursuant to RPL 232-c. For the purposes of Real Property Actions and Proceedings Law (RPAPL) § 721, Petitioner is a landlord. If he was not, then he would not have standing to maintain this proceeding.
RPL § 226-c(1)(a) states:
Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than five percent above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary.
RPL § 226-c does not direct how or in what form "a writing" must be given to a tenant. The terms of the lease between the parties governs how a notice under RPL § 226-c should be sent to a tenant. (Frischer v Goldner, 76 Misc.3d 1226 (A) [Civ Ct 2022]). The purported sub-lease between the parties does not contain a provision on how notices are to be sent nor in what form. Furthermore, in their affidavits, the parties have demonstrated that they have communicated with one another by letter, text, and email. An email would certainly be considered a writing in the year 2024. The courts have found that an email can constitute a writing for purposes of the statute of frauds. (Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 A.D.3d 476, 477 [1st Dept 2011]). However, absent a lease provision authorizing email notices or a provision dictating how any notices are to be served, it is an issue of fact for trial as to whether sending an email constituted valid "service" of the notice of non-renewal based upon the parties conduct during the tenancy.
The third issue concerning the notice of non-renewal is whether Petitioner's purported email to a singular email address constituted valid service of the RPL § 226-c notice on both Respondent Bezark, and Respondent Heinlein. There are two people listed as tenants on the lease. Petitioner purportedly sent a singular email to aidenbezark@gmail.com. Based upon the allegations of the parties alone, and the fact that the emails are not offered in admissible form, the court cannot determine whether or not this email constituted service on both Respondents, or if it was indeed sent to more than one person.
The court does not find the timing of the purported RPL § 226-c notice to be at issue. The parties do not dispute that a thirty-day notice pursuant to the time frames articulated in RPL § 226-c(2)(b) is the appropriate notice period. While the email was allegedly sent on December 9, 2022, only 22 days prior to the expiration of the lease term, RPL § 226-c provides that where the landlord "fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired."
Petitioner commenced this proceeding on January 13, 2023, thirty-five days after allegedly sending the email to Respondents. Unlike the requirements of RPL § 232-a, there is no requirement that a date certain be included in a notice pursuant to RPL § 226-c for Respondent to vacate. RPL § 226-c automatically extends Respondents' tenancy until the appropriate notice period expires. As so long as Petitioner does not commence the proceeding before the requisite time frame has expired, dismissal is not required. It has been established that "[i]t is a fundamental principle of statutory interpretation that a court should attempt to effectuate the intent of the legislature and where the statutory language is clear and unambiguous, the court should construe the statute to give effect to the plain meaning of the words used... Whereas here, the statute describes the particular situations to which it is to apply "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Eaton v. NY City Conciliation & Appeals Bd., 56 N.Y.2d 340, 452 N.Y.S.2d 358, 437 N.E.2d 1115 [1982] (internal citations omitted.) Therefore, as Petitioner commenced this proceeding after thirty-days had elapsed since the email of December 9, 2022, it was done so after Respondents' term had ended and dismissal is not required.
For the foregoing reasons, Petitioner's motion for summary judgment is denied.
Dismissal of Respondents' Affirmative Defenses
Petitioner's motion also seeks to dismiss Respondents' affirmative defenses arguing that they are without merit and seeks to dismiss them pursuant to CPRL § 3211(b). On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law. In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed. A defense should not be stricken where there are questions of fact requiring trial (internal citations omitted). (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 A.D.3d 541, 541-542 [1st Dept 2011].) However, defenses that are vague, consist of bare legal conclusions, and are without supporting facts will be stricken. (Robbins v Growney, (229 A.D.2d 356, 645 N.Y.S.2d 791 [1st Dep't 1996])
As previously stated, Respondent's Second Affirmative defense of illusory tenancy is conclusory and devoid of specificity. The court in Groschlaude v Lawlor, 78 Misc.3d 679, 682-83 [Civ Ct 2023] sets out the standard for analyzing a defense of illusory tenancy:
An illusory tenancy is at its core a fraudulent scheme to create a prime tenancy with the intent to circumvent the rent stabilization laws, thus depriving a subtenant of the protection of those laws in their own right. Thornton v. Baron, 5 N.Y.3d 175, 800 N.Y.S.2d 118, 833 N.E.2d 261 [2005]... In the context of asserting a cognizable claim or defense of fraud, "[t]he elements... must be pleaded, and each element must be set forth in detail." (CPLR 3016 [b]; Gridley v. Turnbury Vill., LLC, 196 A.D.3d 95, 102, 149 N.Y.S.3d 243 [App. Div., 2d Dept. 2021], lv denied No. 2021-567, 2021 WL 5898137 (NY, Dec. 14, 2021), quoting Matter of Regina Metro. Co., LLC, 35 N.Y.3d 332, 130 N.Y.S.3d 759, 154 N.E.3d 972 [2020], and citing 699 Venture Corp. v. Zuniga, 69 Misc.3d 863, 133 N.Y.S.3d 191 [Civ. Ct., Bronx County 2020] [in each case the court found that the CPLR 3016 pleading requirements had not been met].) "[A]llegations of fraud based upon speculation are insufficient." (Id. at 102, 149 N.Y.S.3d 243.)
In Groschlaude (supra) the court found that Respondent therein had plead six of the eight factors to support their claim of illusory tenancy. However, as those allegations were on information and belief, dismissed the defense for being inadequately pleaded. Similarly here, Respondents' first affirmative defense is mostly based upon information and belief and the remainder of the allegations contained in the answer and Respondents' motion for discovery are wholly conclusory and self-serving. Accordingly, Respondent's first affirmative defense is stricken.
Petitioner's motion as it seeks dismissal of Respondents' remaining defenses is denied. Clearly given the issues surrounding the purported RPL 226-c notice, a trial is required. Respondents' defenses and counterclaims as they apply to overcharge are also preserved for trial as there is inconsistency between the subleases set forth by the parties as well their affidavits as to what the monthly rent was, what additional fees were charged, and whether these ancillary charges constituted an overcharge under the Rent Stabilization Code. Petitioner did not address Respondent's counterclaim for Harassment, except in reply, which will not be considered by this court. (JPMorgan Chase Bank, N.A. v Luxor Capital, LLC, 101 A.D.3d 575, 576 [1st Dept 2012]).
Petitioner's Alternative Relief Seeking Use and Occupancy Pendente Lite.
As alternative relief, Petitioner seeks payment of use and occupancy pendente lite. RPAPL § 745(2) is the only vehicle by which a Petitioner may seek use and occupancy in a summary proceeding pendente lite. The statute was significantly amended when the Housing Stability and Tenant Protection Act (HSTPA) of 2019 was passed. In pertinent part, RPAPL § 745 (2) states:
2. In the city of New York:
(a) In a summary proceeding upon the second of two adjournments granted solely at the request of the respondent, or, upon the sixtieth 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, counting only days attributable to adjournment requests made solely at the request of the respondent and not counting an initial adjournment requested by a respondent unrepresented by counsel for the purpose of securing counsel, whichever occurs sooner, the court may, upon consideration of the equities, direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court's order, which may be established without the use of expert testimony.
Petitioner's motion as it seeks use and occupancy is premature. Only the initial adjournment of thirty-three days from February 7, 2023 to March 10, 2023 was made at the request of the Respondents, and even then the adjournment was at the request of Respondents for the purpose of securing counsel. Accordingly, Petitioner's motion as it seeks use and occupancy pendente lite is denied as premature.
For the foregoing reasons, it is:
ORDERED that Respondents' motion (seq #1) is denied in it's entirety;
ORDERED that Petitioner's motion (seq #2) is granted to the extent of striking Respondents' Second affirmative Defense only and denied as to all other relief sought; and it is further
ORDERED that the parties appear in Part A on at 9:30am for assignment to Part X for assignment to a trial part subject to the court's decision on Petitioner's Order to Show Cause.
This constitutes the decision and order of the court.