Opinion
No. L & T 55254/14.
07-25-2014
CITADEL ESTATES, LLC., Petitioner–Landlord, v. PATHWAYS TO HOUSING, INC., Respondent–Tenant, John Doe and Jane Doe, Respondents–Undertenants.
Scott D. Gross, Esq, Law Offices of Scott D. Gross, Mineola, NY, attorney for petitioner. Todd Rothenberg, Esq., New Rochelle, NY, attorney for respondent, Pathways to Housing. John Doe and Jane Doe, Brooklyn, NY, pro se.
Scott D. Gross, Esq, Law Offices of Scott D. Gross, Mineola, NY, attorney for petitioner.
Todd Rothenberg, Esq., New Rochelle, NY, attorney for respondent, Pathways to Housing.
John Doe and Jane Doe, Brooklyn, NY, pro se.
Opinion
SUSAN F. AVERY, J.
Petitioner commenced this licencee holdover proceeding against respondents, Pathways to Housing (“Pathways”) and undertenants, John Doe and Jane Doe. Petitioner alleges that Pathways' licence to occupy the premises expired, following service of a notice of non renewal, based upon the contention that, contrary to the lease and the rent stabilization law, Pathways is not occupying the premises as it's primary residence. Petitioner also maintains that because Pathways is an “institution” and a “corporation” petitioner is not legally obligated to offer respondent, Pathways, a lease renewal.
See non-renewal notice, at final ¶ 1, submitted into evidence as petitioner's exhibit 5 at inquest.
See verified petition dated February 3, 2014 at ¶ 6.
COURT APPEARANCES
Respondent, Pathways appeared in this proceeding through counsel, and executed a stipulation of settlement. According to the stipulation of settlement, dated April 1, 2014, Pathways agreed to give possession of the premises which are the subject of this action, back to the petitioner by September, 30, 2014. The stipulation of settlement was silent as to respondents, John and Jane Doe. The court file indicates that an inquest was scheduled against John and Jane Doe on June 24, 2014, and that the court sent a post card to respondents, John and Jane Doe, informing them of the scheduled inquest date.
On the scheduled inquest date, no one appeared on behalf of respondents, and this court held an inquest. Among petitioner's documents submitted at the inquest was the lease executed between the petitioner and respondent, Pathways. At the inquest, petitioner failed to offer any testimony as to the identities of respondents, John and Jane Doe. As a result, following petitioner's case in chief at the inquest, this court reserved decision.
Submitted into evidence as petitioner's exhibit 3 at inquest.
PATHWAYS TO HOUSING
Pathways to Housing is an organization which provides services to formerly homeless persons with mental health challenges. It provides “scattered site housing” to its clients. Although the source of Pathways funding was not established, this court notes that the “scattered site housing” program has been administered by New York City's Human Resources Administration (HRA). “Under the program, participating vendors such as Housing Works [or in the case at bar, Pathways, would] enter into Scattered Site Contracts with HRA, which authorize vendors to lease apartments from private landlords and to provide support services for [the vendor's clients] ... The vendors are the tenants of record, and the [client]s are treated as licensees.” This “scattered site' model fosters a sense of home and self-determination, and it helps speed the reintegration of Pathways clients into the community.”
http://pathwaystohousing.org/our-model/
Housing Works, Inc. v. City of New York, 255 A.D.2d 209 (1st Dept [1998] ).
Housing Works, Inc. v. City of New York, 255 A.D.2d 209 (1st Dept [1998] ).
http://pathwaystohousing.org/our-model/
THE LEASE BETWEEN PETITIONER AND PATHWAYS TO HOUSING
The vacancy lease executed between the petitioner, as the landlord, and Pathways to Housing, as the tenant, required Pathways, to use the premises which are the subject of this action as its primary residence. Paragraph 1 of the lease, entitled “Use” reads as follows: “[t]he apartment must be used only as a private apartment to live in as the primary residence of the tenant and for no other reason. Only a party signing this lease may use the apartment.”
The initial lease was for a term of two (2) years commencing February 1, 2010 and terminating January 31, 2012. A lease renewal dated October 28, 2011 was executed, however, whether it was for a one (1) or two (2) year term was not indicated on the form submitted at inquest, as petitioner's exhibit “4”.
Paragraph 12 of the lease, entitled “Assignment and sublet ” reads as follows: “Tenancy limited to subtenant of Lessee (PATHWAYS TO HOUSING) and authorized personnel only” (caps in original ).
The first complete sentence of the lease informs the reader that a rider is attached which explains the parties rights and responsibilities pursuant to the rent stabilization law. Paragraph 2 of “LEASE RIDER No.1” entitled “SUBLET” reads as follows: “Tenancy limited to subtenant of Lessee (PATHWAYS TO HOUSING) and authorized personnel only” (caps in original ). Page # 27 of the lease states that the signing tenant acknowledges receipt of a “Non-stabilization Lease Rider.”
Specifically, the sentence reads: “ATTACHED RIDER SETS FORTH RIGHTS AND OBLIGATIONS OF THE TENANTS AND LANDLORDS UNDER THE RENT STABILIZATION LAW” (emphasis in original ).
PREDICATE NOTICE
The predicate notice in the court file (submitted into evidence at the inquest as petitioner's exhibit 5), is titled: “NOTICE OF NON–RENEWAL OF LEASE AND INTENTION TO COMMENCE SUMMARY PROCEEDINGS BASED UPON NON–PRIMARY RESIDENCE” (caps in original ). The notice is dated September 11, 2013 and addressed to “PATHWAYS TO HOUSING, Inc.” The affidavit of service claims that the notice was mailed to “PATHWAYS TO HOUSING, Inc.,” at the premises which are the subject of this proceeding with an additional mailing at a manhattan address.
It is not clear to this court when the status/name of respondent Pathways to Housing was changed to Pathways to Housing, “Inc.” (Emphasis supplied).
The first indented paragraph of the notice informs the recipient that “your lease for the above referenced premises expires on January 31, 2014 and, pursuant to the Rent Stabilization Code of 1987, Section 2524.4(c), the landlord will not renew your lease based upon the fact that the premises are not occupied by you as your primary residence.”
The second indented paragraph of the notice states: “the facts which support this claim that you are not occupying the premises as your primary residence are that you have been residing and have established your residence at an address unknown to the landlord and you have not been in physical occupation of the premises ... for at least three months....”
The court notes that the affidavit of service of the predicate notice states that the notice was mailed to respondent, Pathways, at the premises which are the subject of this action, as well as at an additional address, located in manhattan.
The third to last indented paragraph states: “that the subject premises are subject to Rent Stabilization Laws of 1969, as amended, and the Rent Stabilization Code of 1987. This notice is served upon you pursuant to Section 2524.4(c) and 2524.2(c)(2) of the aforementioned code.”
The last indented paragraph states: “[g]iven the fact that the premises is rented by an institution (Pathways to Housing) and there is no designated person to occupy the premises pursuant to the parties' lease agreement, the petitioner is under no obligation to renew the lease agreement.”
THE PETITION
The petition at paragraph 2, states: “[r]espondent, Pathways to Housing Inc., is the tenant of the premises. .... Respondents JOHN DOE' and JANE DOE' are the undertenants of the aforementioned respondent tenant.”
Paragraph 6 of the petition reads as follows: “[t]he premises is subject to the NYC Emergency Housing Rent Law or the Rent Stabilization Law of 1969, as amended. The [r]espondent is not a rent regulated tenant or entitled to a lease renewal given the fact that the [r]espondent is a corporate tenant and the initial lease agreement did not designate a specific individual to reside therein.”
RENT REGULATORY STATUS OF THE PREMISES
It is petitioner's contention, that the premises is exempt from rent regulation because respondent, Pathways “is a corporate tenant and the original lease did not designate a specific individual to reside therein.” Contrary to petitioner's contention, case law holds that “an entity can be a residential tenant under the Rent Stabilization Law” and therefore, entitled to a renewal lease. Because the benefits of the rent regulation laws apply “beyond situations where a specific individual [i]s named in the lease” so long as the “intended beneficiaries [of the lease can be] determin[ed]” the “corporate tenant is entitled to a renewal lease.”
See petition at ¶ 6, and the predicate notice asserting that “the premises is rented by an institution ....“ and footnotes 1 and 2 above.
Koenig v. Jewish Child Care Assn., 107 A.D.2d 542 affd 67 N.Y.2d 955 ( [1986] ).
Manocherian v. Lenox Hill Hosp., 229 A.D.2d 197 [1st Dept [1997] ) lv denied 90 N.Y.2d 835.
Manocherian v. Lenox Hill Hosp., id.
Manocherian v. Lenox Hill Hosp., id.
Manocherian v. Lenox Hill Hosp., id.
In the case at bar, since there is no basis to conclude that “the relevant ... [l]eases fail to designate any individuals or even a class of individuals who are to reside in the [p]remises” petitioner's contention is contrary to law.
2976 Marion, LLC v. University Consultation Center, NYLJ 7/23/2014 p 21 col 3 (Civ Ct Bronx County [Vargas, J.] ).
Indeed, a not-for-profit corporation, operating a group home for emotionally disturbed girls, where the “lease recognized the nature of the tenancy” could not be evicted from the rent stabilized eight (8) bedroom apartment, upon the contention that the premises was being “used for commercial purposes.” Additionally, where the lease designated an unnamed “corporate officer and immediate family” “for whose benefit the corporation leased the apartment ...” the landlord was required to offer a renewal lease, as there was no proof that the intended occupants were not primarily residing at the premises. Similarly “[a] corporate tenant which leases an apartment for the use and occupancy of an officer, director or employee is entitled to a renewal lease, provided [the occupant] can meet the primary residence test set forth in ... the Rent Stabilization [Law].” And “the primary residence test is to be “applied ... to the actual occupant of the apartment” and “not to the corporation.” In the case at bar, the intended occupants of the subject premises, are clearly identified in the lease, as the sublessees of Pathways.
Koenig v. Jewish Child Care Assn., 107 A.D.2d 542,affd 67 N.Y.2d 955 ( [1986] ).
Matter of Sommer v. New York City Conciliation & Appeals Bd., 116 A.D.2d 457 (1st Dept [1985] ).
Matter of Sommer v. New York City Conciliation & Appeals Bd., id.
See also, Matter of Sommer v. New York City Conciliation & Appeals Bd., 99 A.D.2d 991 (1st Dept [1984] ).
Matter of Cale Dev. Co. v. Conciliation & Appeals Bd., 94 A.D.2d 229 (1st Dept [1983] )affd 61 N.Y.2d 976.
Matter of Cale Dev. Co. v. Conciliation & Appeals Bd., id.
Matter of Cale Dev. Co. v. Conciliation & Appeals Bd., id.
“[T]he Court must perform its obligations [to review submissions for facial sufficiency] sua sponte notwithstanding the absence of a motion challenging the sufficiency of the petition or the predicate notices” Homestead Equities, Inc. v. Washington, 176 Misc.2d 459 (Civ Ct N.Y. County [1998] Acosta, J.).
The “controlling issue is whether the current occupant falls within the authorized class [contemplated by the lease]” and if so, “whether the occupant is occupying the apartment as a primary residence.” In the matter at bar, since the petitioner failed to demonstrate whether the John Doe and Jane Doe occupants were the licensee's of Pathways and therefore “authorized” occupants, this court is unable to determine, if petitioner's “non-primary” residence allegations can be substantiated. Accordingly, petitioner failed to meet its' evidentiary burden.
San–Dar Assoc. v. Permanent Mission of Spain to United Nations, 203 A.D.2d 196 (1st Dept [1994] ).
San–Dar Assoc. v. Permanent Mission of Spain to United Nations, id.
ERRONEOUS ALLEGATIONS IN THE PREDICATE NOTICE
Based upon the foregoing, the statement in the predicate notice that the premises is rented by an institution and therefore not subject to rent regulation, is erroneous. Additionally, the predicate notice states that the premises is “subject to the Rent Stabilization Law” and the “notice is served ... pursuant to [said] code.” The notice then contradicts itself by stating that premises is not subject to rent regulation. As a result of the erroneous and contradictory statements, the notice is fatally defective. As a predicate notice is incapable of amendment it cannot form the basis of an holdover proceeding.
“petition's assertions that the premises ... were not subject to ... rent regulations' when, in fact, they were, misstated the ... rent regulatory status of the premises and thus failed to satisfy the requirements of RPAPL [§ ]741. Such failure requires dismissal” MSG Pomp Corp. v. Doe, 185 A.D.2d 798 (1st Dept [1992] ).
Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 ( [1980] ).
In light of the determination made herein, this court need not address the binding effect of the inconsistencies contained in the lease and the verified petition, regarding the rent regulatory status of the premises.
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CONCLUSION
Based upon the foregoing, petitioner's application for judgment against respondents, John Doe and Jane Doe is denied, and the petition is dismissed against respondents, John and Jane Doe.
The foregoing constitutes the decision and order of the court.