Opinion
64322/10
11-14-2011
Gregory A. Austin, Petitioner, v. Christopher O'Brien, Respondent, "JANE" O'BRIEN, Respondent (Undertenant).
, J.
After trial, the court renders the following findings and determination:
In this holdover proceeding, petitioner Gregory A. Austin ("petitioner") seeks to recover possession of the rent stabilized premises located at 177 North 8th Street, Apt. 1L, Brooklyn, New York ("premises") on the ground that he requires the premises for his personal use and occupancy as his primary residence. Petitioner has elected to terminate the tenancies of respondents Christopher O'Brien and "Jane" (Victoria) O'Brien ("respondents"), the occupants of the premises, pursuant to the Rent Stabilization Code (RSC) § 2524.4(a). At trial, both sides were represented by counsel. Petitioner testified on his own behalf and each of the respondents testified on their behalf.
Petitioner testified to his prima facie case. He introduced into evidence certified copies of the deed, MDR and DHCR registrations for the subject building, a renewal lease for the premises dated February 19, 2008, which expired on March 31, 2010, and the "Golub" notice dated December 22, 2009.
Petitioner is a divorced male with two daughters, and an accountant at a firm he co-owns in Brooklyn. The office of the accounting firm is located approximately 1 mile from the premises. Petitioner currently resides in a rental apartment in the town of Lindenhurst Long Island. Petitioner testified that he intended to move into the premises, a first floor apartment, when he purchased the building in June 2009. At that time his intention was to combine the premises (unit 1L) and unit 1R for his own use. Petitioner explained that the combined unit would have provided him access to the backyard and enabled him to have a two bedroom apartment where his daughters could stay when they visited him every other weekend and during school recess. However, after he purchased the building he was informed by respondents that they did not intend to move. Therefore, although unit 1R was vacant at the time, petitioner abandoned his plan to combine the units. Petitioner rented unit 1R to new tenants in September 2009 for the rent amount of $1,800.00 a month.
In December 2009, Petitioner served respondents with the "Golub" notice which stated that petitioner needed the premises to live and work, and so that he can have potential access to the backyard. Petitioner testified that there is no direct access from the premises to the backyard and that only unit 1R has direct access to the backyard. Petitioner claims that he intends to hire a contractor and have plans drawn up to determine how to obtain access from the premises to the backyard, once he has possession of the premises. However, as of the date of trial, petitioner had not commissioned any architects reports, plans or drawings that show how to obtain access from the premises to the backyard. Petitioner also explained that despite the fact that unit 1L is only 450-500 square feet in size it would still fit his needs because he and his daughters can stay with his mother in Long Island when they visit him.
The Rent Stabilization Code generally permits an individual owner to recover possession of a rent-stabilized apartment for his or her own use and occupancy and/or for the use and occupancy of the owner's immediately family. RSC § 2524.4 provides in relevant part that:
"The owner shall not be required to offer a renewal lease to a tenant, or in hotels, to continue a hotel tenancy, and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required pursuant to section 2524.2 of this Part, only on one or more of the following grounds:
(a) Occupancy by owner or member of owner's immediate family.
(1) An owner who seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence in the City of New York and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York....." See RSC § 2524.4(a)(1).Courts also place additional requirements on an owner to show that he or she instituted the proceeding in "good faith" and that he or she or his or her family members actually intend to take occupancy of the apartment in question. See Dusza v. Rela, 11/8/91 N.Y.L.J. 26, col. 3 (App. Term 2d and 11th Jud. Dists.); Fazio v. Joy, 89 AD2d 604, 452 N.Y.S.2d 461 (2d Dep't 1982), order aff'd, 58 NY2d 674, 458 N.Y.S.2d 526, 444 N.E.2d 990 (1982); Malafis v. Shannon, 5/29/2002 N.Y.L.J. 23, col. 4 (Civ. Ct. Kings Co.).
On cross-examination it was revealed that the subject building had been advertised for sale in the window of a local realtor. Petitioner testified that he had authorized the company to list the building for sale two or three months before trial but did not know that the building was listed in the realtor's window. He asserted that the realtor advised him that the building could potentially sell for $1.4 million, in which case he would have sold the building and "could have found another apartment."
Respondent Christopher O'Brien testified that a real estate agent named Phyllis and an "Hasidic gentlemen" both visited the building on May 5, 2011 which caused him to search the internet to see whether the building was for sale. He eventually found the listing with the firm of Balis and Zamora where the listing was posted for at least two months. Respondent introduced the building listing into evidence. Respondent also asserted that he saw the advertisement for the building in the store front window of Balis and Zamora and introduced those photographs into evidence. On rebuttal petitioner testified that he knew Phyllis but did not know the Hasidic gentleman and did not authorize Phyllis to go to the building. Petitioner could not explain how the agent knew the precise details of costs for taxes, electricity, oil, extermination and insurance as well as the income from each tenant in the building. Petitioner claimed that the costs were estimates and that the rental income information could be obtained from DHCR records. However, the numbers listed on the DHCR rent record introduced at trial by petitioner (Petitioner's "3") differed from those on the real estate listing introduced into evidence by respondent (Respondent's "C").
It is clear from petitioner's and respondent's testimony that petitioner authorized the sale of the subject building after serving the "Golub" notice and would have sold the building for the right price. These same facts were present in Felix v. Farber, 21 Misc 3d 145(A) (App. Term 1st Dept. 2008) in which the trial court's decision to dismiss an owner's use proceeding was upheld on appeal. The trial court in Felix v. Farber had found that the petitioner's attempts to sell the subject building after serving the "Golub" notice vitiated the petitioner's plan as outlined in the "Golub" notice — to occupy the premises— and dismissed the proceeding. This court agrees. Here, when petitioner listed the building for sale, it directly undermined any good faith intention he may have had to obtain possession of the premises for his personal use. Like in Felix, the building was listed for sale on the eve of trial and Petitioner readily admitted that had the building sold for $1.4 million he would have found another place to live.
Moreover, petitioner showed his lack of good faith to occupy the premises when he rented unit 1R to new tenants when it was vacant. Unit 1R is the same size as unit 1L, has direct access to the backyard and was unoccupied for three months after petitioner purchased the building. If petitioner intended to occupy a unit in the building, he could have simply taken possession of unit 1R when it was vacant instead of serving respondents with a "Golub" notice only three months later. Petitioner stated that he was frustrated when he could not gain possession of unit 1L initially and therefore rented out unit 1R. However, this does not explain his subsequent choice to commence a proceeding to obtain access of unit 1L only rather than moving into unit 1R.
Lastly, petitioner failed to support the statements in his prima facie case. Petitioner states in the "Golub" notice that he intends to take possession of the premises with "potential" access to the backyard, yet petitioner testified that he does not know whether the premises can be renovated to provide access to the backyard. As of the date of trial, petitioner had not yet hired a contractor to determine whether this was possible. More importantly, petitioner never verified this information before asserting it in the "Golub" notice.
The court finds that petitioner failed to meet his burden. Petitioner did not establish that he instituted the proceeding in good faith and actually intended to occupy the premises. Accordingly, the petition is dismissed with prejudice. Petitioner shall provide respondents' attorneys with a renewal lease for the premises within ten days of service of a copy of this decision and order with notice of entry.
This constitutes the decision and order of this court.
Dated: Brooklyn, New York
November 14, 2011
Hon. Bruce E. Scheckowitz
J.H.C.