Opinion
L & T 58268/2019
10-31-2019
Michael ZAGORSKI, Petitioner, v. Bozena MAKAREWICZ, Respondents.
The Price Law Firm LLC, Attorneys for Petitioner, 16 Madison Square West, 115 Broadway, Suite 1053, New York, New York 10010 Communities Resist, Attorneys for Respondents Bozena and Krystyna Makarewicz, 109 South 5th Street, Brooklyn, New York 11249
The Price Law Firm LLC, Attorneys for Petitioner, 16 Madison Square West, 115 Broadway, Suite 1053, New York, New York 10010
Communities Resist, Attorneys for Respondents Bozena and Krystyna Makarewicz, 109 South 5th Street, Brooklyn, New York 11249
Zhuo Wang, J. Petitioner commenced this holdover proceeding in March 2019 seeking possession of 183 Guernsey Street, Apartment 4R ("the subject apartment") for personal use. In his notice of nonrenewal, Petitioner alleges in relevant part that he and his wife, who presently occupy unit 2R in the subject premises, wish to create a "larger contiguous space to better enjoy their life together" utilizing units 1L, 2L, 2R, 3L, 3R, and the subject apartment 4R. Petitioner intends to utilize 4R and 1L as a "foyer, bedroom, home office, and recreational space." Petitioner states that if the other units cannot be recovered, he still intends to recover unit 4R, a fourth-floor apartment, to enlarge their current living space in unit 2R, on the second-floor. Respondent answered and then moved for disclosure (Mot. Seq. 1), which is still pending before this Court and is unopposed by Petitioner.
On the dismissal motion, Respondent argues that dismissal of this proceeding is warranted based on the requirement that a landlord show an "immediate or compelling necessity" to recover possession of a housing accommodation for personal or a family member's use pursuant to § 26-511(c)(9)(b) of the New York City Administrative Code (Administrative Code), as amended by the Housing Stability and Tenant Protection Act of 2019 ("HSTPA").
Petitioner concedes in his opposition that the notice of nonrenewal in this proceeding fails to include any assertion of an "immediate and compelling necessity," but argues that the new requirements under the HSTPA should not be applied ex post facto because the "immediate and compelling necessity" requirement was not in existence at the time the notice of nonrenewal was served. For this Court to dismiss the proceeding because of the failure to meet a standard that did not exist at the time the predicate notice was served, Petitioner argues, would be "unfair" and a "flagrant breach of his constitutional rights." Alternatively, Petitioner seeks an opportunity to "meet the new standard as set out in the HSTPA," as he now claims by way of an attorney affirmation that he seeks the subject premises for his mother and brother, both of whom suffer from some unspecified mental illness.
Prior to the enactment of the HSTPA, Section 26-511(c)(9)(b) of the NYC Administrative Code provided that "an owner shall not refuse to renew a lease except where he or she seeks to recover possession of one or more dwelling units for his or her own personal use and occupancy as his or her primary residence or for the use and occupancy of a member of his or her immediate family as his or her primary residence " Part I of the HSTPA amended § 26-511(c)(9)(b) to require the landlord to show an "immediate or compelling necessity" to recover possession on the same basis. Pursuant to § 5 of Part I, the amendment to § 26-511(c)(9)(b) "shall take effect immediately and shall apply to any tenant in possession at or after the time it takes effect."
Petitioner fails to demonstrate that the new requirement in Section 26-511(c)(9)(b) that he allege an immediate and compelling necessity should not be applied to the case at bar. To the extent he contends that the change in the law amounts to a "flagrant breach" of his constitutional rights, Petitioner fails to specify which rights have been violated, and he fails to cite any legal authority in support of his constitutional argument. Indeed, an appellate court has recently held that another provision of the HSTPA materially affecting pending claims withstood constitutional scrutiny because the legislature's enactments carry an ‘exceedingly strong presumption of constitutionality’ " (see e.g. Dugan v. London Terrace Gardens, L.P., 177 A.D.3d 1, 110 N.Y.S.3d 3 [1st Dept. 2019] citing Barklee Realty Co. v. Pataki , 309 A.D.2d 310, 311, 765 N.Y.S.2d 599 [1st Dept. 2003] ).
Since, as here, a predicate notice cannot be amended (see Chinatown Apartments, Inc. v. Chu Cho Lam , 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 [1980] ), Petitioner's conceded failure to state an "immediate and compelling necessity" in the instant notice of nonrenewal is not reasonable under the attendant circumstances (see 323 3rd St. LLC v. Ortiz , 13 Misc 3d 141(A), 831 N.Y.S.2d 363 [App. Term, 2d Dept. 2006] ). As such, the petition fails to state a cause of action pursuant to CPLR 3211 (a) (7).
This Court has considered the arguments in support of the part of Respondent's motion for summary judgment and finds them unpersuasive. Accordingly, it is
Ordered that Respondent's motion (Seq. 2) is granted in part and this proceeding is dismissed; and it is further
Ordered that Respondent's motion (Seq. 2) is otherwise denied; and it is further
Ordered that the Respondent motion (Seq. 1) for discovery is denied as moot.