Opinion
Decided April 24, 2004.
This Article 7 licensee holdover proceeding was commenced by Notice of Petition and Petition after service of a notice to quit. Petitioner seeks possession of premises known as 125 Eastern Parkway, apartment 1F, Brooklyn New York. The petitioner moves for summary judgment, an award of attorney fees and asks this Court for an order striking affirmative defenses and counterclaims raised in respondents verified answer. Respondent opposes the motion. All parties are represented by counsel.
Upon reviewing the motion, supporting papers, affirmation in opposition, and having heard oral argument the petitioner's motion is denied as provided for herein.
The petition alleges Mr. William Armstead entered into possession of the subject rent controlled premises after the death of the tenant of record Ms. Irene Maxwell, his aunt. Respondent retained counsel in February 2001 and his attorney filed a verified answer raising the following affirmative defenses which the petitioner seeks to strike: the petition is jurisdictionally defective by failing to state a cause of action. Respondent alleges he is entitled to succeed to the subject rent controlled apartment. Specifically, Mr. Armstead alleges he was in possession of the subject premises at least two years prior to the death of the rent controlled tenant of record, Ms. Irene Maxwell, his aunt. Respondent further argues that the petition fails to state a cause of action since the multiple dwelling registration is defective.
Petitioner initially filed this motion in December of 2001. The proceeding was adjourned a number of times as well as marked off calendar as the parties conducted discovery and attempted to reach a resolution. Since the parties have been unable to resolve the matter they stipulated to the proceeding being restored to the court's calendar for a determination on petitioner's motion.
An examination before trial (hereinafter EBT) of Mr. Armstead was conducted in July 2001. Respondent alleges he moved into the subject apartment in or about October 1987 (See page 10 of EBT, line 03) and his aunt passed away in March of 1990 (see opposition papers exhibit A, death certificate of Irene Maxwell). Furthermore, Mr. Armstead claims he was the caretaker for his aunt (See page 16, line 17 of EBT) and he performed various tasks including but not limited banking, shopping and cooking while caring for her.
The moving party on a motion for summary judgment must establish a prima facie case of its entitlement to judgment as a matter of law by tendering evidentiary proof in admissible form which demonstrates the absence of any triable issue of fact. Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (1980); Liquori v. City of New York , 202 A.D.2d 647, 610 N.Y.S.2d 842 (2nd Dept., 1994). In order to defeat the summary judgment motion the opposing party must show facts sufficient to require a trial on any issue of material fact. It is incumbent upon a party who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs in order to show that the allegations set up in his answer are real and are capable of being established at trial. Spearman v. Times Square Stores Corp. , 96 A.D.2d 552, 465 N.Y.S.2d 230 (2nd Dep't 1983).
In the matter before this court the proof submitted to support respondent's affirmative defenses are raised in his sworn testimony taken at the EBT. The substantive content of Mr. Armstead's testimony creates issues of fact. Summary judgment is denied as there exist genuine issues of material fact which cannot be determined by a motion for summary judgment. In addition, that portion of petitioner's motion seeking an order striking respondent's affirmative defenses and counterclaims is also denied.
The legal issues raised in respondent's verified answer and opposition papers are: whether the respondent has a legal right to succeed to the tenancy rights of his deceased aunt pursuant to the NYCRR prior to the amendment of the 1997 rent reform act; or whether the respondent maintains succession right as a nontraditional family member according to the exception carved out of the 1997 rent reform act under Braschi v. Stahl Assoc. , 74 N.Y.2d 201, 544 N.Y.S.2d 784 (1989). Presently the family succession provisions contained in NYCRR § 2204.6(d)(3) do not include nephews as traditional family members who are entitled to succession rights. A statutory amendment effective June 19, 1997, removed nephews from the definition of traditional family members entitled to succeed to a regulated apartment. Mr. Armstead argues as follows: 1). he lived with his aunt for more than two years before her death; 2). his succession rights were established before the statutory amendment; and 3). the amendment was not intended to apply retroactively. The 1997 rent reform act, which modified family succession provisions of the rent control laws and rent stabilization code, was not meant to be applied retroactively. (See Vartarian v. Brady , NYLJ 9/29/99, p. 27, c.6 (Civ.Ct. N.Y. Co.) held nephews entitled to succeed to tenant of record, succession rights accrued prior to the amendment of the law removing succession rights to nephews); Eppol Realty v. Friese , NYLJ 1/6/99, p. 25: (Civ NY Kramer) (held amendment to the succession provision was not retroactive). Thus it becomes an issue of fact as to whether the respondent can establish his succession rights prior to June 1997 considering his rights would have accrued when his aunt died in 1990. A family member's right to succeed to a rent controlled tenancy accrues upon either the tenant's death or the tenant's permanent abandonment of the apartment. Festa v. Leshen , 145 A.D.2d 49, 537 N.Y.S.2d 147 (1st Dep't 1989); 245 Realty Associates v. Sussis , 243 A.D.2d 29, 673 N.Y.S.2d 635 (1st Dep't 1998).
Statutes are applied prospectively absent clear legislative intent to apply the statute retroactively. (See Lesser v. Park 65 Realty Corp. , 140 A.D.2d 169, 527 N.Y.S.2d 787 (1st Dep't 1988), app. dism., 72 N.Y.2d 1042 (1988). An exception is that remedial statutes, which are to be liberally construed, are to be given retroactive construction to the extent that they do not impair vested rights or create new rights ( Id. at 173). The family succession provisions of the Rent Stabilization Code have been viewed to be of a remedial nature. The remedial purpose of legislation governing rent control succession rights, as a whole remains the protection of tenants and their family members from eviction. Where a new law confers a tenancy right, the law is applied retroactively, but where it takes away a right conferred by the old law, the new law is not applied retroactively Morales v. Gross , 230 A.D.2d 7, 14-15, 657 N.Y.S.2d 711 (2nd Dep't 1997); Beary v. City of Rye , 44 N.Y.2d 398, 411-413, 406 N.Y.S.2d 9 (1978). The amendment to succession provisions cannot take away the right conferred to nephews under the prior law.
Based on the foregoing analysis the court need not reach the other prong of respondent's affirmative defense, specifically whether respondent is entitled to succeed to the subject apartment as a non-traditional family member. In addition, the court need not reach the issue of attorney's fees since the outcome of the proceeding has yet to be determined. Petitioner's motion is denied in all respects. Both parties shall appear before the court on May 26, 2004, at 9:30 AM, in Part C, Room 402 for resolution or trial.
The foregoing constitutes the decision and order of the court.