Opinion
65632/2015
02-05-2018
COMRID VENTURES LLC, a Limited Liability Company, Petitioner–Landlord, v. Souleymone GUITTI, Respondent–Tenant, Ouedraogo Diallo Fatoumata, Ouedraogo Adama, Nikiema Gomkoudougou, Baga Tanga Aloys and "John Doe", Respondents–Undertenants.
Attorneys for Petitioner: Fischman & Fischman, 305 Broadway, Suite 201, New York, New York 10007, (212) 274–0555 Attorneys for Respondent Aloys Baga: Maeve Callagy, Esq., Elizabeth Maris, Esq., PART OF THE SOLUTION, 2759 Webster Avenue, Bronx, New York 10458, (718) 220–4892 ext. 116
Attorneys for Petitioner: Fischman & Fischman, 305 Broadway, Suite 201, New York, New York 10007, (212) 274–0555
Attorneys for Respondent Aloys Baga: Maeve Callagy, Esq., Elizabeth Maris, Esq., PART OF THE SOLUTION, 2759 Webster Avenue, Bronx, New York 10458, (718) 220–4892 ext. 116
Diane E. Lutwak, J.
BACKGROUND & PROCEDURAL HISTORY
This is a holdover eviction proceeding based upon nonprimary residence of the Rent Stabilized tenant of record, respondent Souleymone Guitti. The proceeding is predicated upon a notice dated July 10, 2015 of intention not to renew the lease and the subsequent expiration of that lease. It is undisputed that Mr. Guitti, who has not appeared, moved out of the subject apartment prior to the commencement of this proceeding and that it is now occupied by the respondents-undertenants Ouedraogo Diallo Fatoumata, Ouedraogo Adama, Nikiema Gomkoudougou and Aloys Baga .
Mr. Baga was sued as "Baga Tanga Aloys", but at his deposition stated that his name is Aloys Baga.
The Notice of Petition and Petition are dated November 2, 2015 and the case was calendared initially for November 17, 2015. After several adjournments, respondent-undertenant Aloys Baga retained counsel and filed a Verified Answer dated April 4, 2016 raising two affirmative defenses: (1) waiver of any objection to his tenancy due to acceptance of rent by petitioner's predecessor-in-interest subsequent to the tenant of record's reported departure from the premises in October 2013; and (2) succession rights as a nontraditional family member of the tenant of record pursuant to Rent Stabilization Code §§ 2520.6(o)(2) and 2523.5(b). The other respondents-undertenants have appeared pro se but have not filed answers or otherwise raised defenses. By Order and Decision dated May 18, 2016, the court granted petitioner's discovery motion, ordered Mr. Baga to produce documents and sit for a deposition, ordered payment of use and occupancy pendente lite , denied Mr. Baga's cross-motion for discovery and marked the case off calendar pending completion of discovery.
After discovery was completed, petitioner filed a motion for summary judgment returnable September 8, 2017 seeking a default judgment against the respondent-tenant and a judgment of possession and issuance of a warrant of eviction against the other respondents-undertenants. Petitioner argues that it has established its prima facie case and respondent-undertenant Mr. Baga has failed to establish the elements of either of his affirmative defenses. Petitioner supports its motion with an affirmation of its attorney; affidavit of its agent Nathan Goldbaum; copies of the pleadings; its deed to the premises dated June 4, 2015; a current multiple dwelling registration statement; a fully executed 7–page lease between 439 E. 135th Street D.T. Bldg. Corp. and Mr. Guitti for the period of March 1, 2008 through February 28, 2009 with a monthly rent of $1350; a 1–page renewal lease for the period of November 1, 2014 through October 31, 2015 with a monthly rent of $1515 which, at the top, lists "Kevin Cahill as Receiver"/CRR Management Office as the owner/agent and Mr. Guitti as the tenant and, at the bottom, bears Mr. Baga's signature on the "Tenant Signature" line dated 8/25/14 and another signature on the "Owner's Signature" line dated 9/18/14; a 2017 Rent Roll Report from the New York State Division of Housing and Community Renewal's Office of Rent Administration ("DHCR") listing Mr. Guitti as the tenant of Apartment 3W as of the July 28, 2017 filing date, with a monthly rent of $1515 but no lease in effect; and a transcript of Mr. Baga's deposition.
At his deposition, Mr. Baga identified as his own the "Tenant's Signature" at the bottom of the renewal lease form, which was introduced at the deposition as Exhibit 3 and attached to the moving papers as Exhibit D. Goldbaum Affidavit at ¶¶ 44–45; Deposition Transcript at pp. 32–34, 121.
As to respondent Baga's first affirmative defense that he "paid rent in his own name and communicated with the predecessor landlord as a tenant since Mr. Guitti's departure," Verified Answer at ¶ 20, resulting in the waiver of any objection to his tenancy, petitioner asserts that Mr. Baga "testified clearly and unequivocally at his deposition that at no time whatsoever did he ever have a lease in his own name or ever pay rent in his own name". Memorandum of Law at p. 10. Petitioner argues that there was "never an intent to create a landlord and tenant relationship between the Petitioner and the Respondent," id., that the inadvertent acceptance of rent checks does not create a landlord and tenant relationship when there is no intent to do so and a tenancy may not be created by waiver or estoppel.
Regarding respondent Baga's second affirmative defense of succession rights, petitioner argues that Mr. Baga's documents and deposition testimony fail to show any nontraditional family-type relationship with the tenant of record and show, instead, that he was merely a roommate.
Petitioner's moving papers highlight the following statements made by Mr. Baga at his deposition:
• When he came to the United States, Mr. Baga lived initially with a former teacher who treated him as a son, provided him with food and did not charge any rent.
• Upon invitation by Mr. Guitti, when a room became available in his apartment, Mr. Baga moved in with him.
• Mr. Guitti and Mr. Baga are not blood relatives.
• Mr. Baga contributed $400 towards Mr. Guitti's household expenses, and an additional amount towards the electric bills.
• Mr. Guitti gave Mr. Baga a key for the door to his room, and each of the rooms in the apartment had locks and keys.
• When Mr. Guitti, his wife and their three children moved out in October 2013, it was to an apartment on Ford Street in the Bronx which Mr. Guitti's wife had applied for without including Mr. Baga on the application.
• Mr. Baga intended for his wife and children to come live with him at the subject premises after Mr. Guitti and his wife and children moved out, but they have not done so yet and Mr. Baga instead lives with the other respondents-undertenants.
• Mr. Guitti and Mr. Baga never shared a bank account or named each other as beneficiaries or household members on any finance-related, government or other forms.
In opposition to the motion, Mr. Baga submits his affidavit in which he asserts that he has known Mr. Guitti his entire life; they are from the same village in Burkina Faso; Mr. Guitti is like an uncle to him and they call each other "uncle" and "nephew"; he lived with Mr. Guitti, his wife and children from October 2010 through October 2013 and during this time they ate meals together, celebrated holidays and birthdays together and held each other out as family to their acquaintances, friends and family. Through an informal arrangement, Mr. Baga contributed $400 per month towards household expenses and also paid part of the electric bill and bought groceries and other necessities.
As to his waiver defense, Mr. Baga asserts that in October 2013 he and Mr. Guitti reported to petitioner's predecessor-in-interest that Mr. Guitti was moving to another apartment with his wife and children and that Mr. Baga would remain behind. Mr. Baga asserts that "the landlord agreed to put the lease in my name," and, although this never happened, he started paying the rent "to the owner or management" after Mr. Guitti moved out. Mr. Baga argues that the prior owner through its actions accepted his tenancy and that such acceptance is binding on petitioner.
On reply petitioner argues that Mr. Baga failed to demonstrate the requisite emotional commitment and financial interdependence needed to show that his relationship with Mr. Guitti was that of nontraditional family member. Petitioner also submits a rent ledger reflecting that, while Mr. Baga has paid use and occupancy at the rate of $1515 for every month since January 2017, an outstanding balance of $12,120 is due for unspecified months prior to January 2017.
DISCUSSION
The proponent of a summary judgment motion under CPLR R 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ Med Center (64 NY2d 851, 476 NE2d 642, 487 NYS2d 316 [1985] ); Zuckerman v. New York (49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980] ). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Alvarez v. Prospect Hospital (68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923, 925–926 [1986] ); Zuckerman v. New York (49 NY2d at 562, 427 NYS2d at 598 ). In opposing a motion for summary judgment, the nonmoving party "must assemble and lay bare its affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief." Kornfeld v. NRX Technologies, Inc (93 AD2d 772, 461 NYS2d 342 [1st Dept 1983], aff'd 62 NY2d 686, 465 NE2d 30, 476 NYS2d 523 [1984] ). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Fried v. Bower & Gardner (46 NY2d 765, 767, 386 NE2d 258, 413 NYS2d 650 [1978] ); Alvord & Swift v. Stewart M Muller Constr Co (46 NY2d 276, 281, 385 NE2d 1238, 1241, 413 NYS2d 309, 312 [1978] ). A motion for summary judgment should be granted where "[n]othing but conclusory assertion is offered" in opposition. Friends of Animals, Inc v. Associated Fur Mfrs (46 NY2d 1065, 390 NE2d 298, 416 NYS2d 790 [1979] ).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bona fide issues of fact and not to delve into or resolve issues of the affiants' credibility. Glick & Dolleck, Inc v. Tri–Pac Export Corp (22 NY2d 439, 441, 239 NE2d 725, 726, 293 NYS2d 93, 94 [1968] ); Yaziciyan v. Blancato (267 AD2d 152, 700 NYS2d 22 [1st Dep't 1999] ). Facts must be viewed "in the light most favorable to the non-moving party." Vega v. Restani Constr Corp (18 NY3d 499, 503, 965 NE2d 240, 242, 942 NYS2d 13, 15 [2012] ); Ortiz v. Varsity Holdings, LLC (18 NY3d 335, 339, 960 NE2d 948, 937 NYS2d 157 [2011] ). Because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos (46 NY2d 223, 231, 385 NE2d 1068, 413 NYS2d 141 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson (8 NY2d 8, 12, 167 NE2d 328, 200 NYS2d 627 [1960] ).
Petitioner has met its burden of proof on its prima facie case. It has produced copies of the deed for the premises showing that it is the owner; a current multiple dwelling registration filed with the New York City Department of Housing Preservation and Development; a current Registration Rent Roll filed with the DHCR; the original lease with the tenant of record respondent Souleymone Guitti; the last renewal lease offered to Guitti which expired October 31, 2015; and a Notice of Intention Not to Renew Lease addressed to Guitti dated July 10, 2015 with proof of service. It is undisputed that Mr. Guitti has permanently vacated the premises. What is disputed is whether Mr. Baga has the right to succeed to Guitti's Rent Stabilized tenancy, either because petitioner's predecessor-in-interest accepted his tenancy after Guitti moved out or because he is a nontraditional family member who resided with Guitti for at least two years prior to his departure. As petitioner has met its initial burden of making a prima facie showing that it is entitled to possession of the premises, the burden shifts to respondent to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact relating to one or both of his affirmative defenses. Haroust Corp v. Yuen Chung Chin (155 AD2d 317, 547 NYS2d 289, 290 [1st Dep't 1989] ).
Respondent's Second Affirmative Defense—Succession Rights as a Nontraditional Family Member
To establish the right to succeed to a Rent Stabilized tenancy, a claimant such as respondent Baga must establish that he is a family member who primarily resided in the subject apartment with the tenant of record for either no less than two years immediately prior to the permanent vacating of the apartment by the tenant or, where the person claiming succession rights is aged 62 or over or disabled, no less than one year. Rent Stabilization Code ("RSC"), 9 NYCRR § 2523.5. Under the test first articulated in Braschi v. Stahl Assoc Co (74 NY2d 201, 543 NE2d 49, 544 NYS2d 784 [1989] ), and subsequently codified in various regulations, the definition of a "family member" includes "any other person residing with the tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment and interdependence." RSC, 9 NYCRR § 2500.2 [n][2] ); Arnie Realty Corp v. Torres (294 AD2d 193, 194, 742 NYS2d 240 [1st Dept. 2002] ).
Evidence of whether such "commitment" and "interdependence" exist may include, but is not limited to, the following eight factors:
(I) longevity of the relationship;
(ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;
(iii) intermingling of finances as evidence by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;
(v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;
(vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;
(vii) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;
(viii) engaging in any other pattern of behavior, agreement, or other action which evidence s the intention of creating a long-term, emotionally committed relationship.
RSC, 9 NYCRR § 2500.2 [n][2].
Notwithstanding this list, however, the regulations themselves provide that "no single factor shall be solely determinative" in making such determination, id. ; Classic Props, LP v. Martinez (168 Misc 2d 514, 516, 646 NYS2d 755 [App Term 1st Dep't 1996] ). This principle was also emphasized in Braschi , by cautioning that although the enumerated "factors are most helpful the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control." Braschi , supra (74 NY2d at 213, 543 NE2d at 55, 544 NYS2d at 790 ). The absence of documentary evidence of financial interdependence is just one factor and does not necessarily undermine a succession rights claim, RHM Estates v. Hampshire (18 AD3d 326, 795 NYS2d 214 [1st Dep't 2005] ) ; Arnie Realty Corp v. Torres, supra , especially where the parties are of limited financial means, Roberts Ave Assocs v. Sullivan (2003 NY Slip Op 51091[U], 2003 NY Misc LEXIS 901 [App Term 1st Dep't 2003] ).
Petitioner cites and discusses the Appellate Term's decision in RHM Estates v. Hampshire (5 Misc 3d 43, 784 NYS2d 273 [App Term 1st Dep't 2004] ), for the proposition that "a mere roommate situation does not elevate a litigant to the right to obtain succession rights." Reply Memorandum of Law at pp. 3–5. However, the Appellate Division reversed the Appellate Term, RHM Estates v. Hampshire (18 AD3d 326, 795 NYS2d 214 [1st Dep't 2005] ), and reinstated the lower court's post-trial determination dismissing the petition and finding that the respondent's relationship with the now-deceased tenant of record was that of nontraditional family members, and not simply roommates, based on evidence including that respondent lived with the tenant of record for 15 years without paying rent and used her address for mail and on his W–2 form, bank statement and voter registration; that the two shared holiday and birthday celebrations, traveled together and routinely ate breakfast together; and that respondent spent substantial time caring for the tenant of record throughout her lengthy battle with cancer.
Mr. Baga has failed to establish a triable issue of fact on his affirmative defense of succession rights to Mr. Guitti's tenancy. The conclusory allegations with which he structured both his Answer and his opposing papers do not substitute for the showing of evidentiary facts required to withstand the motion for summary judgment. As an initial matter, Mr. Baga's claim regarding Mr. Guitti that he "consider[s] him my uncle," Baga Affidavit at ¶ 6, is unavailing, given that uncles, aunts, nephews and nieces are not on the list of traditional family members who may be entitled to succession rights. RSC, 9 NYCRR § 2520.6(o)(1). Rather, it is only if Mr. Baga can prove that he and Mr. Guitti were nontraditional family members as defined in the RSC, 9 NYCRR § 2500.2 [n][2], that he can prevail. See, e.g. , Hitchcock Plaza, Inc v. Fortune (47 Misc 3d 127[A], 15 NYS3d 711 [App Term 1st Dep't 2015] )(affirming lower court's post-trial determination that tenant of record's niece met her affirmative obligation of establishing succession rights to her uncle's rent regulated apartment as a nontraditional family member); Edgecombe Ave 291 Realty LLC v. Devore (49 Misc 3d 1206[A], 26 NYS3d 724 [Civ Ct NY Co 2015] )(tenant of record's nephew failed to establish his right to succeed to his aunt's apartment as a nontraditional family member); Manley Laundromat Inc v. Su Gui Wu (48 Misc 3d 1206[A], 20 NYS2d 292 [Civ Ct NY Co 2015], aff'd , 51 Misc 3d 142[A], 38 NYS3d 831 [App Term 1st Dep't 2016] )(tenant of record's niece failed to establish her right to succeed to her uncle's apartment as a nontraditional family member).
By comparison, the former teacher whom Mr. Baga lived with upon his arrival in the United States from Burkina Faso treated him "as his son." Deposition at p. 17.
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The only evidence Mr. Baga has presented, however, is his own self-serving affidavit which states in a conclusory manner that his relationship with Mr. Guitti "is one of mutual emotional and financial support as needed." Baga Affidavit at ¶ 6. Mr. Baga's affidavit includes no details or specific examples from his daily life with the Guitti household to support his claim. His statement that "we ate meals together and spent time together on a daily basis," Baga Affidavit at ¶ 9, could be as true of roommates as of a family-type relationship. His other unsupported statements that "[w]e spent holidays together and celebrated birthdays as a family", that he "helped pay for household expenses by buying groceries and other necessities" and that "[a]mong our acquaintances, friends, and family, we have held each other out to be family members," id. , are so lacking in detail that, without more, they fail to raise triable issues of fact. Freeze Right Refrigeration & Air Conditioning Services, Inc v. New York (101 AD2d 175, 186, 475 NYS2d 383, 391 [1st Dep't 1984] ); 1106 Coll Ave, HDFC v. Farmer (30 Misc 3d 1204[A], 958 NYS2d 647 [Civ Ct Bx Co 2010] ).
While Mr. Baga's statements in his sworn affidavit are consistent with those he made at his deposition and in his Verified Answer, those other statements are as lacking in details and anecdotes evidencing the nature of his relationship with Mr. Guitti as is his affidavit. Further, noticeably absent from respondent's opposition papers is any other form of supporting evidence, such as affidavits from the tenant of record, family members, friends or neighbors; documentation of financial interdependence in the form of banking or other statements; evidence of formalized legal obligations by naming each other on government agency, medical or other forms; evidence that they took care of each other during ill health or other challenging times; photographs, correspondence or mementos of any kind. Nor has Mr. Baga offered any excuse for his failure to submit any other evidence to support his claim. Zuckerman v. New York (49 NY2d at 562, 404 NE2d at 720, 427 NYS2d at 598 ). Accordingly, petitioner is entitled to summary judgment as to respondent's conclusory claim that he lived with Mr. Guitti "as a family" and that they held themselves out to others as such."
Respondent's First Affirmative Defense—Waiver of Right to Object to Tenancy
A landlord can waive the right to contest the occupancy of someone who remains behind after the reported departure from a Rent Stabilized apartment of the tenant of record, by intentionally continuing to accept rent from the remaining occupant without taking any action. See, e.g. , Lee v. Wright (108 AD2d 678, 485 NYS2d 543 [1st Dep't 1985] ); and 317 West 77th, Inc v. Pera and Maurer (1990 NY App Div LEXIS 16873 [App Term 1st Dep't 1990] ); both citing Jefpaul Garage Corp v. Presbyterian Hospital in New York (61 NY2d 442, 448, 462 NE2d 1176, 474 NYS2d 458 [1984] ). Whether such a waiver has occurred is an issue of fact, to be determined at trial. Id.
Mr. Baga has asserted specific facts in support of his defense of acceptance of his tenancy, and is entitled to an opportunity to prove conduct on the part of petitioner's predecessor showing an intent to waive any objection to his tenancy. Lee v. Wright, supra . Mr. Baga's Verified Answer and sworn affidavit assert that Mr. Guitti's departure was reported to petitioner's predecessor-in-interest and that he began paying for the apartment in his own name after Mr. Guitti moved out in October 2013. Further, at his deposition Mr. Baga explained that the "old landlord", whom Mr. Baga knew as "Tom," was very familiar with Mr. Guitti and himself, and that before Mr. Guitti moved out they called Tom a number of times and set up three different appointments to meet with him. Deposition at pp. 38–40. When Tom did not show up for those appointments or respond to their telephone calls, near the end of 2013 they went to see the super. Id. at p. 40. Up until that time, Mr. Baga had been giving $400 to Mr. Guitti every month, but then Mr. Guitti "told me to give the money order to the super." Id. at p. 41. Initially, Mr. Baga gave the money orders to the super with no name on them. After the first three or four such money orders, "The super asked me to put my name on the money order." Id. Mr. Baga then did so, for "16 or 17 money orders." Id. at p. 42. He also wrote two or three letters to CRR Management, "saying that I'm now the tenant of the house and I'm the one paying for it." Id. at pp. 43–44. CRR Management appears to be the name of petitioner's predecessor-in-interest, and is listed as "owner/agent" at the top of the lease renewal which was introduced at the deposition as Exhibit 3 and attached to petitioner's moving papers as Exhibit D. Mr. Baga's signature, dated 8/25/14, appears at the bottom of that lease renewal on the "Tenant's Signature" line, followed by another signature dated 9/18/14 on the "Owner's Signature" line.
Petitioner, whose deed for the premises is dated June 4, 2015, has not presented any proof from anyone with personal knowledge to counter respondent's statements about the "16 or 17" rent payments he made to the superintendent of the building in his own name, and letters he sent to petitioner's predecessor-in-interest, beginning in late 2013 and continuing thereafter for some period of time. Petitioner mischaracterizes respondent's assertions in its Memorandum of Law at page 11 when it states that, "Respondent did not even claim that he ever had any Landlord and Tenant relationship of any kind whatsoever with the Petitioner or the Petitioner's predecessor" and that "All payments of rent by the Respondent were always made to the Tenant not the Landlord." On the contrary, respondent asserts that he did establish a landlord and tenant relationship with petitioner's predecessor-in-interest and made rent payments in his own name which were accepted over a substantial period of time. Resolution of the credibility issues presented by the parties' conflicting submissions must await further exploration at trial. 105–115 Bennett Realty Co, LLC v. Piney (17 Misc 3d 128[A], 851 NYS2d 64 [App Term 2007]citing BME Three Towers, Inc v. 225 East Realty Corp (3 AD3d 444, 772 NYS2d 7 [1st Dep't 2007] ).
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v. Twentieth Century–Fox Film Corp (3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498, 505 [1957] ). The court should not pass on issues involving credibility, as the function of summary judgment is "issue finding, not issue determination". Rodriguez v. Parkchester South Condominium, Inc (178 AD2d 231, 577 NYS2d 52, 53 [1st Dep't 1991] ). The court cannot simply reject respondent's allegations out of hand, Sosa v. 46th St Dev LLC (101 AD3d 490, 955 NYS2d 589 [1st Dep't 2012] ), which are sufficient to defeat petitioner's motion for summary judgment on his first affirmative defense, In re Pollock (64 NY2d 1156, 480 NE2d 346, 490 NYS2d 732 [1985] ); Phillips v. Joseph Kantor & Co (31 NY2d 307, 291 NE2d 129, 338 NYS2d 882 [1972] ).
Default Judgment Against Respondent Souleymone Guitti
As for that branch of petitioner's motion seeking a default judgment against respondent Guitti, as set forth above, petitioner has indeed proven every element of its prima facie case against the defaulting respondent tenant of record except for his military status. 50 USC § 521(b). Accordingly, petitioner will be entitled to a default judgment against respondent Guitti upon submission of an affidavit or other evidence addressing this issue. DD 11th Ave LLC v. Sans (2018 NY Misc LEXIS 293, 2018 NY Slip Op 50121[U], 2018 WL 632082 [Civ Ct NY Co 2018] ).
CONCLUSION
For the reasons stated above, petitioner's motion for summary judgment is granted as to its prima facie case, see, e.g. , ST–DIL LLC v. Kowalski (2015 NY Misc LEXIS 3289, 2015 NY Slip Op 31713[U] [Civ Ct NY Co 2015] ), granted as to respondent Baga's second affirmative defense of succession rights and denied as to respondent Baga's first affirmative defense of acceptance of tenancy. This proceeding is restored to the court's calendar for trial on March 6, 2018 at 9:30 a.m. on the remaining issues, including respondent Baga's first affirmative defense, the nonappearing respondent Guitti's military status, outstanding rent arrears and/or use and occupancy and legal fees.
This constitutes the Decision and Order of this Court, copies of which are being mailed by the court to counsel for petitioner and for respondent-undertenant Aloys Baga. Petitioner shall send copies to respondent Guitti at his last known address and to the other respondent-undertenants.