Opinion
Index No. LT-302102-22/NY Motion Seq No. 1 2
03-15-2023
West 115 11-13 Associates LLC Petitioners v. Kettly Pierre; Patrick Simeon; "John" "Doe"; "Jane" "Doe" Respondent(s)
Unpublished Opinion
DECISION/ORDER
TRACY FERDINAND JUDGE
Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion for:
Judgment - Summary and to Dismiss
PAPERS - NUMBERED
Notice of Motion and Affidavits/Affirmations Annexed - ____1 [NYSCEF 9-11] ____
Order to Show Cause and Affidavits Annexed - _____
Notice of Cross-Motion Affidavits/Affirmations and Answering Affidavits/Affirmations Replying Affidavits - ____ 3 [NYSCEF 30-33]; 5 [NYSCEF 42] ____ 6 [NYSCEF 43]____
Exhibits - _____2 [NYSCEF 12-27]; 4 [NYSCEF 34-41]
Stipulations - ____
Other - ____
Upon the foregoing cited papers, the Decision/Order in this Motion is as follows:
Petitioner commenced this summary holdover proceeding seeking possession of the premises known as 315 West 115th Street, New York, New York (the "Building") apartment 62 (the "Apartment") on the grounds that respondents' tenancy had been terminated following their failure to cure alleged illegal alterations in the Apartment. Respondent Kettly Pierre, represented by counsel, interposed an Answer asserting two defenses, res judicata and laches, and a counterclaim for attorney fees.
Petitioner now' moves for an Order dismissing respondent's defenses and counterclaim and granting summary judgment on its claim for possession. Respondent opposes and cross moves pursuant to CPLR §§3211 and 3212 for an Order dismissing the petition pursuant to the doctrine of res judicata and/or granting summary judgment on their defense of laches and for other and further relief. The motions are consolidated herein for a determination.
This proceeding is the second Housing Court proceeding involving the parties and centers around alleged unauthorized alterations respondent is said to have performed in the Apartment in 2016.
In or about July 2016 petitioner commenced a holdover proceeding against respondent under Index No.: LT-68590-16/NY titled West 115 11-13 Associates LLC, v Kettly Pierre, Patrick Simeon and Mercedes Jin Louise (the "2016 proceeding"). The predicate Notice of Termination in the 2016 proceeding provided, in pertinent part:
"PLEASE TAKE NOTICE, that your tenancy is hereby terminated effective July 5, 2016 for the reasons that: You are committing or permitting a nuisance in the subject housing accommodation, and as a result of said nuisance you are interfering substantially with the comfort and safety of the landlord and of other tenants and occupants of the subject building. Further, you have wilfully (sic.)
violated a substantial obligation of your tenancy inflicting serious and substantial injury upon the owner within the past ninety (90) days.
In this regard, you have performed substantial illegal alterations to Apartment 62 at 315 West 115th Street, New York, New York 10026 (the "Apartment") that have materially changed the character of the premises. These substantial illegal alterations were done without permits and/or done contrary to applicable building codes. As these illegal alterations are substantial, these illegal alterations are not curable."
That Notice of Termination continued with a recitation of the alleged illegal alterations, a recount of how petitioner's agents discovered the alterations and their impact on the Building and the Apartment.
The Notice states that respondent "did not seek or obtain the landlord's consent for any alterations to the Apartment" and further provided:
"No Notice to Cure is served herein on these nuisance allegations, based upon the serious nature of the situation created at the premises and based on the fact that it does not lend itself to a cure. Further, No Notice to Cure is served herein, as your extensive illegal alterations constitute a wilful (sic.) violation of a substantial obligation of your tenancy inflicting serious and substantial injury upon the owner within the past ninety (90) days. Moreover, no Notice to Cure is served herein your conduct constitutes a nuisance in that it constitutes a continuous invasion of rights and threatens the health and safety of other tenants in the building and no Notice to Cure is required by the Rent Stabilization Code."
"PLEASE TAKE FURTHER NOTICE, that this notice is being sent pursuant to Section 2524.3(a) and Section 2524.3(b) of the Rent Stabilization Code."
A trial was conducted over the course of four days in late 2017 and early 2018 and culminated in the dismissal of the proceeding after trial.
The trial court held as follows:
"The Court finds that the evidence at trial shows no genuine dispute of fact that Petitioner is the proper party to commence this proceeding according to RPAPL §721; that Petitioner and Respondent are in a landlord/tenant relationship with one another by a lease dating from 1984 with a clause that prohibits alterations of the subject premises without Petitioner's consent; that the subject premises is subject to the Rent Stabilization Code; that Petitioner served a notice of termination according to the Rent Stabilization Code, but no notice to cure; that Respondents engaged in some alterations of the subject premises; and that Respondent engaged in at least some curative work at the subject premises." West 115 11-13 Associates LLC, v Kettly Pierre, Patrick Simeon and Mercedes Jin Louise, LT-68590- 16/NY (Civ. Ct NY Co. 4/17/2018, Stoller, J.)
The court found, based upon the trial record, that petitioner did not waive objection to the alterations and extensively analyzed each unauthorized alteration citing the standard enunciated by the Appellate Term in 259 W. 12th, LLC v Grossberg, 28 Mise 3d 132[A], 2010 NY Slip Op 51314[U] [App Term 2010], ultimately holding:
"As Petitioner has not proven that Respondents have caused a lasting or permanent injury to the subject premises, for the reasons stated above, the Court finds that this matter is distinguishable from 259 W. 12th LLC, supra, on the particular facts herein.. .For the reasons stated above, the
Court does not find that Respondent's breaches of her lease have been incapable of a cure. As Petitioner has failed to satisfy a condition precedent of this proceeding, i.e., a notice to cure, the Court dismisses this proceeding after trial." Supra, p. 15-16.
This included respondent's contractors work on the gas and water lines which the trial court found had been "concluded for some time..." (Supra, at p. 13).
Petitioner appealed. In affirming the trial Court's determination, the Appellate Term held:
"we sustain the posttrial dismissal of this holdover proceeding, premised upon allegations that the stabilized tenant breached a substantial obligation of the tenancy and committed a nuisance by making incurable illegal alterations to the subject apartment. A fair interpretation of the evidence supports the finding that landlord failed to establish that the alterations caused lasting or permanent injury to the premises that was incapable of meaningful cure (see Grove Equities LLC v Butensky, 61 Mise 3d 130[A], 2018 NY Slip Op 51409[U], 110 N.Y.S.3d 783 [App Term, 1st Dept 2018]; 201 W. 54th St. Buyer LLC v Rodin, 47 Mise 3d 154[A], 18 N.Y.S.3d 581,2015 NY Slip Op 50863[U] [App Term, 1st Dept 2015]; cf. 259 W. 12th, LLC v Grossherg, 89 A.D.3d 585, 933 N.Y.S.2d 256 [2011]). In this regard, it was undisputed that, prior to the trial, tenant retained landlord's own expert witness, a plumber, to cure the defects arising from tenant's switching of the location of the sink and stove, and that their current configuration is now legal. In addition, the trial evidence, including the testimony of landlord's own project manager, established that the cabinets installed by tenant could be easily removed, and that the countertop, floor and backsplash were comparable to work landlord had done elsewhere in the building. With respect to the other work performed by tenant, "there was insufficient proof of any ... alteration which could be characterized as one causing permanent or lasting injury to the premises" (Mengoni v Passy, 175 Mise 2d 498, 669 N.Y.S.2d 780 [App Term, 1st Dept 1997], affd 254 A.D.2d 203, 679 N.Y.S.2d 122 [1988], quoting Rumiche Corp, v Eisenreich, 40 N.Y.2d 174, 180, 352 N.E.2d 125, 386 N.Y.S.2d 208 [1976])." W. 115 11-13 Assoc. LLC v Pierre, 63 Mise 3d 158[A], 2019 NY Slip Op 50854[U], [App Term 2019]).
Petitioner's motion for leave to appeal to the Appellate Division was denied on April 16, 2020. (See, West 115 11-13 Associates v Pierre, 2020 NY Slip Op 65508 [U][