Opinion
No. L & T 52793/12.
2012-05-1
CHELSEA RESIDENCE LP, Petitioner–Landlord v. Michael DUKE, Respondent–Tenant.
Kellner Herlihy Getty & Friedman, LLP by Scott E. Buckhout, Esq., New York City, Attorneys for Petitioner. Michael Duke, New York City, Respondent Pro–Se.
Kellner Herlihy Getty & Friedman, LLP by Scott E. Buckhout, Esq., New York City, Attorneys for Petitioner. Michael Duke, New York City, Respondent Pro–Se.
SABRINA B. KRAUS, J.
BACKGROUND
This summary holdover proceeding was commenced by CHELSEA RESIDENCE LP,
(Petitioner) and seeks to recover possession of Apartment 10B, at 202 West 24TH Street, New York, New York 10011 (Subject Premises) based on the allegation that, MICHAEL DUKE (Respondent) the rent-stabilized tenant of record, has breached his obligation to provide reasonable access and based on allegations of nuisance.
PROCEDURAL HISTORY
On or about December 2, 2011, Petitioner issued a Notice to Cure and a Notice of Access. The Notice of Access (NOA) stated Petitioner required access to the Subject Premises from December 12, 2011 through December 16, 2011, between the hours of 9:30 a.m. and 5:00 pm, for the purpose of making necessary repairs or improvements to the Subject Premises. The NOA identified by number a series of outstanding HPD violations that Petitioner intended to correct, as well as a stated intention to replace the bathroom sink and cabinet with the same models currently in the Subject Premises. The NOA further stated that the repairs would be performed by Petitioner's “maintenance workers,” that staff members may be present to oversee the repair work and that it was necessary for Respondent to create space for workers to access the areas in need of repair.
The NOA further provided that, at Respondent's request, he would be temporarily relocated to a vacant unit in the building, while the repairs were done. The NOA further asserted that Petitioner would move some of Respondent's belongings to the vacant unit and that the temporary relocation would occur on December 12, 2011. The NOA referenced the requirements under the Housing Maintenance Code and the Rent Stabilization Code to provide access, and concluded that “the signed Temporary Relocation Agreement must be returned to building management by 5 p.m. on Thursday December 8, 2011.”
The Temporary Relocation Agreement (TRA) annexed to the predicate notices in the Court file provides for terms of the relocation, including detailed terms for the packing and removal of Respondent's personal belongings. The file also contains an affidavit of service which asserts that the Notice to Cure, NOA and TRA were personally delivered to Respondent in the main lobby of the subject building on December 5, 2011 at 1:20 PM.
Annexed to the predicate notices and the petition is a letter dated December 13, 2011 from Antoine Lovell to Respondent. The letter recites Mr. Lovell's version of the sequence of events on December 12. In the letter, Mr. Lovell asserts he tried to gain access on December 12 at 10:00am, and that Respondent answered the door, but denied access, requesting a different version of the TRA. The letter further asserts Petitioner will return on December 14, 2011 to perform repairs.
Petitioner issued a Notice of Termination dated December 22, 2011. The Notice purports to terminate Respondent's tenancy pursuant to § 2524(a) of the Rent Stabilization Code, based on a failure to provide access and a failure to cure pursuant to the Notice to Cure. The Notice of Termination asserts breach of a substantial obligation of tenancy and nuisance pursuant to § 2524.3(b) of the Rent Stabilization Code. Grounds constituting nuisance were alleged to be Respondent's failure to sign and return the TRA, Respondent's insistence on a different version of that agreement when access was sought on December 12, failure to provide access on December 14, 2011, that Respondent made a complaint with HPD on December 14, 2011, and specific restrictions it is asserted that Respondent placed on access in the past, which Petitioner asserted were unreasonable, and finally that Respondent had a history of vacillating regarding the acceptance of settlement terms to resolve these issues.
The petition is dated January 23, 2012, and was served by personal delivery on January 25, 2012. The proceeding was initially returnable in Part A on February 1, 2012, and was twice adjourned in the resolution part for trial. On February 1, 2012, Judge Schneider issued a written order denying Respondent's application to make an Adult Protective Services (“APS”) referral on his behalf, and for a referral to the Assigned Counsel Program (“ACP”).The Court did not find Respondent needed APS assistance and noted that Respondent had ACP representation within the same fiscal year and was therefore ineligible for further representation at the time of the application.
On March 15, 2012, after prior recusals by Judge Stoller and Judge Gonzalez, the proceeding was transferred from Part X to Part R for trial,. The trial commenced and concluded on April 27, 2012. At the conclusion of the trial, the Court reserved decision.
PRIOR LITIGATION
Petitioner requested that the Court take judicial notice of two prior holdover proceedings between the parties under index Nos 78779/2008 (The 2008 Proceeding) and 69383/2010 (The 2010 Proceeding).
The 2008 Proceeding was not finally resolved until August 2011. The 2008 Proceeding was based on allegations of nuisance that were related to the issue of providing access for repairs, but primarily focused on allegations that Respondent had acted in a belligerent manner towards staff and other occupants. The 2008 Proceeding was initially returnable in August 2008. In September 2008, the Court granted a motion by APS to appoint a GAL for Respondent. In November 2008, Respondent appeared through MFY Legal Services and filed a written answer. In July 2009, the proceeding was discontinued without prejudice pursuant to a stipulation providing that Respondent would pay arrears and Petitioner would make repairs. Petitioner made a motion to restore in June 2010 asserting Respondent had defaulted in his obligation to make payments under the July 2009 stipulation. It is unclear what happened to that motion. In November 2010, Petitioner again moved for a judgment and a warrant based on Respondent's failure to make rent payments. That motion was settled pursuant to a stipulation dated January 18, 2011, wherein Respondent agreed to pay use and occupancy or Petitioner could move for a judgment. Petitioner moved to restore a third time in August 2011, and the parties stipulated to entry of a judgment for rent arrears and the forthwith issuance of the warrant. The warrant of eviction issued on October 24, 2011. The documents in the file appear to confirm that the Subject Premises is governed by HPD Section 8.
The 2010 proceeding was commenced in June 2010 pursuant to Rent Stabilization Code 2524.3(e) and allegations of nuisance. That proceeding was also discontinued by Petitioner on July 8, 2011.
TRIAL
Petitioner established at trial that it is the deed owner of the subject building and that Respondent is in possession pursuant to written lease agreement dated March 19, 2004 for a term for March 31, 2004 through March 30, 2005 (Exhibit 3). The original lease provides that Respondent would pay a monthly rental of $209.80 and that Section 8 would pay an additional subsidy of $360.70 per month.
Other than the reference on the lease agreement no evidence was offered by either party as to the type of Section 8 regulations governing the Subject Premises.
Petitioner's only witness at trial was Anotine Lovell. Mr. Lovell is the Assistant Director of Programing and has been employed by Petitioner for approximately one year. Mr. Lovell's duties include interaction with tenants and dealing with holdover proceedings. Mr. Lovell knows Respondent and has met Respondent on a number of occasions. Mr. Lovell testified that Petitioner is attempting to gain access to correct outstanding HPD violations. Petitioner put into evidence a list of open violations for the Subject Premises as of April 27, 2012. The list shows that there are five Class A violations open as of that date, one violation was issued in July 2011, the remaining four violations were issued in October 2011 (Exhibit 4). Petitioner also offered into evidence two letters dated October 25, 2011 (Exhibit 5) and November 15, 2011 (Exhibit 6) seeking access to correct violations. The November 15, 2011 letter references a Temporary Relocation Agreement, pursuant to which respondent would be relocated to Unit 624 from November 29 through December 2, 2011. Presumably this refers to a precursor to the TRA annexed to the Petition, which is for different dates.
Mr. Lovell testified that Respondent failed to provide access on the requested dates, and that he and Mr. Ali appeared on the access dates indicated and were denied access by Respondent. Mr. Lovell did not provide detailed testimony as to exactly what was said or the basis for the denial of access. Mr. Lovell testified that Petitioner elected to commence summary proceedings, and that pursuant to the notices annexed to the petition, he again attempted to gain access on December 12, 2011 and December 14, 2011 and was not provided access. Mr. Lovell testified that on December 12, 2011, He asked Respondent if Respondent was willing to be relocated, and Respondent stated he did not agree with the some of the terms of the TRA.
Respondent was the second witness to testify. Respondent also offered a number of documents into evidence. Respondent put into evidence three requests for access (Exhibits H, I & J) between September 12, 2011 and November 7, 2011 seeking to inspect the Subject Premises in compliance with New York City Department of Health and Mental Hygiene regulations of annual inspection for a continued subsidy payment. Respondent also put into evidence a printout from HPD dated April 13, 2011, which showed eleven open violations for the Subject Premises issued between August 2005 and July 2010.
Respondent also put into evidence two notifications issued by HPD showing that Petitioner falsely certified as corrected violations in the common areas of the subject building in October 2011 (Exhibits D and E). Respondent also put into evidence a Notice of Access dated July 29, 2011, seeking access to correct two HPD violations (Exhibit A). Respondent testified that on a previous occasion he had agreed to Petitioner's request to temporarily relocate, while repairs were done, and that Petitioner handled his belongings in a careless and unprofessional manner. Respondent put photographs into evidence to demonstrate the manner in which his belongings had been handled (Exhibit K 1–10). The photographs were taken in May 2006.
In his testimony, Respondent refuted some of Petitioner's allegations. For example Paragraph 8 of the Notice of Termination asserts Respondent denied Petitioner access for repairs on December 14, 2011, and then called HPD to file a complaint No. 5801334, but Respondent showed evidence that complaint # 5801334 was filed by the tenant in Apartment 836 on December 14, 2011 (Exhibit B). Respondent also testified that he was not at home on December 14, 2011 when Petitioner attempted to gain access, that he was ill that morning and had suffered an asthma attack, and that his absence could be demonstrated by film from cameras which Petitioner acknowledged were continuously taping the common areas on the floor of the Subject Premises.
Respondent also established that the allegations that he had failed to provide access for violations 9125071 and 9125072 was false, and that in fact said violations were corrected in April 2010, that Respondent provided access for that purpose, and that Petitioner has certified those violations as corrected with HPD. This claim was not disputed by Petitioner at trial.
Respondent testified that since the Summer of 2011 he has provided Petitioner with requested access to the Subject Premises on at least twenty occasions, and that Petitioner did repair work in the Subject Premises on at least twelve of these occasions. This testimony was not disputed by Petitioner at trial.
Respondent testified that no one from Petitioner's office came to the Subject Premises for access on November 28, 2011, pursuant to the November 15, 2011 request and that he called Carol Allsop–Ricketts based on the failure of Petitioner to appear on said date, but that Carol never returned his call. Respondent testified that Carol had come to the Subject Premises on November 14, 2011 and said she would be willing to relocate Respondent during the repairs. Respondent testified that Carol did not ask for access at this time, but that she came with Mr. Ali and they discussed the terms of the relocation.
Respondent noted that this was the second time Petitioner was seeking to relocate him for repairs to the Subject Premises related to water leaks. Respondent asserted that Carol agreed they would enter a relocation agreement, similar to the agreement the parties had entered in 2006. Respondent testified the day after this meeting Carol sent him a proposed relocation agreement but that it did not contain the terms he had agreed to. Respondent testified that he called Carol to discuss this and that she replied that this was the only relocation offer they would be making. Respondent stated he advised Petitioner, and Carol specifically, that he was ready willing and able to relocate within one week if they agreed on terms. Respondent asserted that since that date he has called Carol approximately twenty-four times, and that she either hung up on him or did not return the call.
Respondent testified that Mr. Lovell never came to the Subject Premises to request access or to start work and that when he came on December 12, 2011, he only spoke about the proposed relocation agreement. Respondent testified that he never denied Petitioner access and that he remains willing to provide access.
DISCUSSION
The underlying proceeding asserts three grounds for termination: nuisance, breach of substantial obligation of tenancy and termination pursuant to § 2524.3(e) of the Rent Stabilization Code. Regarding Nuisance, the Court finds that Petitioner failed to establish a prima facie case or entitlement to a judgment of possession on this ground. Pursuant to § 2524.3(b) of the Rent Stabilization Code a tenancy may be terminated where the tenant is committing a nuisance in the subject premises or building. “... (W)here there is a long history' of denial of access a tenant's refusal to allow access can constitute a nuisance ( Karagiannis v. Nasr 17 Misc.3d 133(A)).” The grounds Petitioner asserts constitute a nuisance in the case at bar are set forth in paragraphs 1 through 11 of the December 22, 2011 Notice of Termination. The facts allege that Respondent failed to provide access over the course of one month December 2011. The allegation in Paragraph 8 is acknowledged as incorrect, as that complaint number has nothing to do with Respondent and was filed by another tenant in the building. Petitioner offered no evidence at all concerning the allegations in paragraphs 9a, 9b, 9c, 9d, 10, or 11. While Petitioner did ask this Court to take judicial notice of two prior proceedings, no adverse findings were made in those proceedings against Respondent, and Petitioner discontinued both of those proceedings without establishing a prima facie case or proceeding with a trial. Based on the foregoing to the extent the Petition states a cause of action for nuisance that claim is dismissed.
§ 2524.3(a) of the Rent Stabilization Code provides for termination of a tenancy where the tenant is violating a substantial obligation of his tenancy and has failed to cure such violation after written notice by the owner that the violations cease within ten days. The Court finds that Petitioner has failed to establish a prima facie case on this claim. The Notice to Cure was issued on December 2, 2011, and according to Petitioner's affidavit of service was not served until December 5, 2011. Part of the cure required by the notice was that Respondent was obligated to sign and return the annexed TRA by 5p.m. on December 8, 2011. Thus Respondent was provided with only three days to effectuate that part of the cure, an insufficient time period under the statute to serve as a predicate for the underlying cause of action. Assuming arguendo Respondent had been afforded ten days to execute the TRA as part of the cure, Petitioner would still not have established a cause of action. Respondent is not required to relocate for repairs, and therefore, his failure to agree to relocate can not be a breach of a substantial obligation of his tenancy. Putting aside for the moment the fact that Petitioner offered no evidence to suggest that relocation was necessary to effectuate the required repairs, even if Petitioner had made such claim or offered such evidence, there is no basis to find that Respondent was required to relocate based either on the lease agreement between the parties or the applicable provisions of the Rent Stabilization Code [ see eg Green Valley Realty LLC v. Delgado 25 Misc.3d 1227(A); 33 Christopher Corp. v. Friedman 2010 N.Y. Slip Op 33441(U) ( reasonable access is quantitatively different from temporarily relinquishing possession ); O'Gorman v. Corporation of Presiding Bishop of the Church of Latter–Day Saints 2008 N.Y. Slip Op 32364(U) ( relocation of rent stabilized tenants for repairs contrary to the provisions of the rent stabilization code ) ]. Therefore, to the extent Petitioner seeks a judgment based on § 2524.3(a) of the rent Stabilization code, that claim is dismissed.
Petitioner's third cause of action against Respondent is based on § 2524.3(e) of the Rent Stabilization Code, which provides for termination of tenancy when the tenant “... has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs ...”. It is undisputed that there remain in the Subject Premises outstanding violations issued by HPD which Petitioner is legally obligated to address. Respondent's testimony that he never denied access and that Petitioner never requested access is not supported by the preponderance of credible evidence offered at trial. It is clear that Petitioner has sought access to address these violations, on more than one occasion, prior to the commencement of this proceeding, and that Respondent has refused to provide Petitioner with said access. It is also clear that part of the failure to provide access stems from a disagreement between the parties regarding terms of the TRA. While Respondent has no obligation to relocate from the Subject Premises, nor any obligation to sign any relocation agreement, Respondent is obligated to provide Petitioner with access to correct the outstanding violations, and Respondent stated repeatedly on the record that he consents to provide Petitioner with such access.
The Court finds that Petitioner has established that there are five outstanding Class A violations, which Petitioner is legally obligated to correct. They are violation # s 9019797, 9167456, 9167445, 9167447, and 9167454. Petitioner failed to establish that the additional work it wishes to perform, ie the replacement of Respondent's bathroom sink and cabinet is “a necessary repair or improvement required by law or authorized by DHCR (§ 2524.3(e))” and thus Respondent is not required to provide access for this repair. Petitioner offered no evidence on why this repair was necessary and failed to address the issue in any way at trial. No violations have been issued by HPD for these conditions. The Court finds that Respondent has unreasonably failed to provide access to Petitioner to correct the five outstanding HPD violations.
Based on the foregoing, the Court finds that Petitioner has established a prima facie entitlement to a final judgment of possession pursuant to § 2524.3(e). Issuance of the warrant is stayed for Respondent to cure his default and provide access. Respondent shall provide access on May 15, 16 and 17th from 9:30 am to 4:30 pm. Upon default, Petitioner may move for issuance of the warrant.
This constitutes the decision and order of this Court.