Opinion
09869/2018
09-26-2018
BRONX 1071 FRANKLIN AVENUE, L.P., Petitioner, v. Mathias NANA, Respondent-Tenant, "Mamadu Tapsoba," "Michele Tiemdregeogo," "Edmond W. Ouedrago," "John Doe," and/or "Jane Doe," Undertenants-Occupants.
Todd Rothenberg, Esq., by Boris Lepikh, Esq., for the Petitioner Law Offices of Karen Takach, PLLC, by Karen Takach, Esq., for the Respondent
Todd Rothenberg, Esq., by Boris Lepikh, Esq., for the Petitioner
Law Offices of Karen Takach, PLLC, by Karen Takach, Esq., for the Respondent
Karen May Bacdayan, J.
BACKGROUND AND PROCEDURAL HISTORY
This is an illegal sublet holdover proceeding. In the Notice to Cure and Notice of Termination, Petitioner alleges that Respondent, Mathias Nana, has sublet and/or assigned the subject premises to the named undertenants/occupants without permission of the landlord and in violation of Paragraph 10 of his lease, Section 2525.6 of the Rent Stabilization Code ("RSC"), section 226-b of the Real Property Law ("RPL"), and section 235-f of the RPL. Petitioner also claims that the alleged subletting has created a situation whereby "occupancy [of the apartment] far exceeds the size of the subject premises."
As support for its claim that Respondent is illegally subletting the apartment without the permission of the landlord, Petitioner alleges that it believes it to be true because Respondent "has not been seen at the subject premises for an extended period of time;" that the specific individuals named in the caption of the proceeding "have been seen coming and going in and out of the subject premises;" and that the named individuals represented in a prior non-payment proceeding that Respondent "[does] not reside in the premises and that they are the sole occupants." Petitioner further alleges that Respondent himself stated in court during the same non-payment proceeding that he [does] not reside [in the subject premises] and instead had rented the apartment to help [his] friends." Finally, Petitioner states that it has "received information that someone other than you, or members of your immediate family are occupying the apartment, that you have not resided therein, and have instead permitted these other persons to occupy the premises in your stead."
Respondent has moved for summary judgment dismissing the proceeding, for a judgment in favor of Respondent's on their counterclaims, and an award of attorney's fees. Respondent's position is that the "proceeding must be dismissed by the Court as a matter of law, because the predicate Notice to Cure and Notice of Termination fail to state the facts necessary to "prove" the allegations upon which the proceeding is based, and that the proceeding is also based on certain "grounds that are not permissible grounds for eviction under the Rent Stabilization Code." (Respondent's attorney affirmation at 6). There is, of course, no requirement that the Petitioner "prove" its cause of action within its pleadings and predicate notices. Petitioner must merely state a cognizable cause of action within its pleadings and predicated notices and do so with the specificity required of the Rent Stabilization Code.
Petitioner opposes Respondents motion, arguing that the notices are sufficient to state a cause of action against Respondent for illegal subletting, and that an illegal sublet proceeding may be brought pursuant to RPL 235-f. Petitioner does not address its allegation that the occupancy of the apartment "far exceeds the size of the subject premises." Petitioner raises several questions of fact which it argues should defeat Respondent's motion for summary judgment.
DISCUSSION
Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. ( Andre v. Pomeroy , 35 NY2d 361, 364 [1974].) On such a motion, the court's function is to find, rather than to decide, issues of fact. ( Southbridge Towers, Inc. v. Renda , 21 Misc 3d 1138[A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008] citing Epstein v. Scally , 99 AD2d 713 [1st Dept 1984].)
Respondent's application asks this Court to evaluate the sufficiency of the pleadings. In doing so, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v. Martinez , 84 NY2d 83, 87 [1994] ; Guggenheimer v. Ginzburg (43 NY2d 268, 275 [1977] ["[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail"]. Moreover, "[a] predicate notice in a holdover summary proceeding need not lay bare a landlord's trial proof and will be upheld in the face of a jurisdictional challenge where ... the notice is as a whole sufficient adequately to advise ... tenant and to permit it to frame a defense." ( McGoldrick v. DeCruz, 195 Misc 2d 414, 415 [App Term, 1st Dept 2003, per curiam ] [internal quotation marks and citations omitted].) Thus, Respondent's argument that Petitioner must state in its predicate notices the "facts necessary to prove the allegations upon which the proceeding is based," is misplaced, as is Petitioner's opposition based on the existence of questions of fact.
A predicate notice served pursuant to the Rent Stabilization Code must state the facts necessary to establish the ground for eviction. ( Rent Stabilization Code [9 NYCRR] § 2524.2 [b].) "[B]road, unparticularized allegations" that are "generic and conclusory" neither satisfy the level of specificity required by Section 2524.2 (b) of the Rent Stabilization Code, nor do they enable the tenant to prepare a defense. ( 69 E.M. LLC v. Mejia , 49 Misc 3d 152[A], 2015 NY Slip Op 51765[U] [App Term, 1st Dept 2015] citing Berkeley Assoc. Co. v. Camlakides , 173 AD2d 193 [App Div, 1st Dept 1991], affd 78 NY2d 1098 [1991].) The Appellate Term of the First Department has written that the "salutary purpose" of requiring specific facts within predicate notices is "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts." ( London Terrace Gardens, L.P. v. Heller , 40 Misc 3d 135[A], 2009 NY Slip Op 52858[U] [App Term, 1st Dept 2009].)
Unlawful Occupancy Pursuant to RPL 235-f
Section 235-f of the RPL ("the Roommate Law") is a tenant-protection statute and cannot be used as a sword by landlords to evict tenants. ( Capital Holding Co. v. Stavrolakes , 242 AD2d 240 [1st Dept 1997] affd 92 NY2d 1009 [1998].) It provides, in pertinent part:
"Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence."
( RPL 235-f [3 ].) While contracting parties are not precluded from referencing the roommate law in their lease or setting reasonable limitations on number of occupants, the lease provisions must be in accordance with the law's minimum protections. ( Roxborough Apts. Corp. v. Becker , 187 Misc 2d 604 [App Term, 1st Dept 2000] affd 296 AD2d 358 [2002] ; see also Barrett Japaning, Inc. v. Bialobroda, 68 AD3d 474 [1st Dept 2009].) Petitioner does not attach the Respondent's lease to the notice, but does reference Paragraph 3 of the lease which allegedly states that "the subject premises may only be occupied by you, or members of your immediate family" in direct contradiction of the protections provided by RPL 235-f. Thus, Respondent is granted partial summary judgment as to Petitioner's cause of action for illegal sublet pursuant the impermissible lease provision and RPL 235-f, and that cause of action is dismissed.
In its opposition papers and at oral argument, Petitioner states that it is not seeking Respondent's eviction pursuant to RPL 235-f. However, as the predicate notices specifically state that the occupation of the premises is unlawful pursuant to RPL 235-f, it is addressed herein.
Overcrowding and/or Illegal Occupancy
To the extent that Petitioner seeks to state a cause of action for overcrowding or illegal occupancy by alleging that "the apartment is occupied by some (sic) many individuals that such occupancy far exceeds the size of the subject premises," Respondent is granted partial-summary judgment, and this cause of action is dismissed as utterly vague. Moreover, Petitioner fails to allege the necessary elements of such a claim. Petitioner does not cite to the relevant section of the Rent Stabilization Code or allege that a violation has been issued against it thus subjecting it to civil or criminal penalties. ( 210 W. 94 LLC v. Concepcion , 2003 NY Slip Op 50612[U] [App Term, 1st Dept 2003] [dismissing holdover petitioner where notice did not allege that an overcrowding violation had been placed against the apartment and that it was thus "subject to civil or criminal penalties"]; JMW 75 LLC v. Wielaard , 47 Misc 3d 133[A], 2015 NY Slip Op 50473[U] [App Term, 1st Dept 2015] [holding that in the absence of any showing that a violation has been placed against the premises or that landlord was actually "subject to civil or criminal penalties," the proceeding is premature].)
Illegal Subletting and/or Assignment
Accepting Petitioner's allegations as true, and according them the benefit of every favorable inference, the petition states a cause of action for possession based upon the rent stabilized tenant's assignment or sublet of the premises without permission pursuant to Section 226-b of the Real Property Law, Section 2525.6 (f) of the Rent Stabilization Code, and the parties' lease agreement. The notices allege that Respondent Mathias Nana has not been seen at the premises for an extended period and had instead sublet the premises without permission of the landlord to various named individuals who have been seen coming and going from the premises in violation of paragraph 10 of the lease agreement. Accordingly, Petitioner has met the pleading requirements imposed by the Rent Stabilization Code, even without its allegation that Respondent admitted the crux of the allegations in open court to Petitioner's counsel in prior nonpayment proceedings. (See Amin Mgt LLC v. Martinez , 55 Misc 3d 144[A], 2017 NY Slip Op 50664[U] [App Term, 1st Dept 2017] [App Term, 1st Dept 2017] [notices are sufficient in an illegal sublet proceeding where the Section of the RSC, lease provision, and number of individuals occupying apartment are cited]; East Vil. RE Holdings v. McGowan , 57 Misc 3d 155[A], 2017 NY Slip Op 51623[U] [App Term, 1st Dept 2017] [notice in illegal sublet proceeding that alleges tenant living at another specified address and gives subtenant's name meets standard for specificity]; Perle v. Ross , 1150 Misc 2d 20 [App Term, 1st Dept 1991] [notice is sufficient that alleged tenant was "subletting and/or assigning the premises without permission"... to third persons, to wit: Vernau Edwards a/k/a ‘Jane Doe’ and ‘John Doe’].)
To the extent that Respondent wishes to know more about Petitioner's allegations to prepare for trial, Respondent may use a bill of particulars. (See Pinehurst Constr. Corp. v Schlesinger , 38 AD3d 474 [1st Dept 2007] ; City of New York v. Valera , 216 AD2d 237, 238 [1st Dept 1995].) The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial. (See Miccarelli v. Fleiss , 219 AD2d 469, 470 [1st Dept 1995] ; W. 97th St. Realty Corp. v. Aptaker , 2016 NY Slip Op 30120[U] [Civ Ct, NY County 2016].)
DECISION AND ORDER
For the foregoing reasons, the Court agrees with Respondent that, under the circumstances of this proceeding, the Petitioner cannot proceed under RPL 235-f. The Court also agrees with Respondent that, to the extent Petitioner claims the premises is overcrowded, Petitioner has failed to establish a cause of action therefor. Thus, Respondent is granted partial summary judgment as to those causes of action, and they are hereby dismissed.
However, as to Petitioner's allegation of illegal subletting, the Court finds that the Notice to Cure and Notice of Termination are sufficiently specific as required by the RSC, and that a cause of action has been adequately pled against Respondent for illegal subletting. Accordingly, Respondent's motion for summary judgment as a matter of law pursuant to its Second Jurisdictional Defense is denied.
The parties are directed to appear before this Court at 9:30 a.m. on October 31, 2018 for settlement or trial.
This constitutes the Decision and Order of this Court. Copies will be mailed to the parties.