Opinion
570690/17
06-01-2018
EAST MIDTOWN PLAZA HOUSING CO., Petitioner–Landlord–Respondent, v. Sherman GAMBLE, Respondent–Tenant–Appellant, and Torri Gamble, Respondent–Undertenant–Appellant.
Advocates for Justice Chartered Attorneys, New York City, for Sherman Gamble, respondent-appellant. Northern Manhattan Improvement Corp.—Legal Services, New York City, for Torri Gamble, respondent-appellant. Gallet, Dreyer & Berkey, LLP, New York City, for petitioner-respondent.
Advocates for Justice Chartered Attorneys, New York City, for Sherman Gamble, respondent-appellant.
Northern Manhattan Improvement Corp.—Legal Services, New York City, for Torri Gamble, respondent-appellant.
Gallet, Dreyer & Berkey, LLP, New York City, for petitioner-respondent.
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
Per Curiam.
Final judgment (Hannah Cohen, J.), entered July 24, 2017, affirmed, with $25 costs.
Landlord, a Mitchell–Lama cooperative corporation, established prima facie entitlement to summary judgment of possession in this holdover proceeding based upon illegal use of the apartment premises (see RPAPL 711[5] and Real Property Law § 231[1] ). The record, including excerpts from the transcript of tenant's criminal trial, wherein he was convicted of promoting prostitution in the third degree (see Penal Law § 230.25[1] ), among other crimes, conclusively established that the apartment premises were used for prostitution on an ongoing basis, that the tenant knew of and acquiesced in this illegal activity, and, indeed, received a portion of the proceeds from such activity (see Murphy v. Relaxation Plus Commodore , 83 Misc. 2d 838, 373 N.Y.S.2d 793 [1975] ; see also 855–79 LLC v. Salas , 40 A.D.3d 553, 554, 837 N.Y.S.2d 631 [2007] ; Matter of 88–09 Realty v. Hill , 305 A.D.2d 409, 410, 757 N.Y.S.2d 904 [2003] ). In opposition, appellants' bare, conclusory allegations denying that such illegal activities took place at the apartment were insufficient to raise any triable issue of fact.
Civil Court providently exercised its discretion in denying respondent-undertenant's motion for leave to amend her answer, since her proposed defenses lack merit (see 36 E. 57th St. LLC v. Falic, 117 A.D.3d 434, 985 N.Y.S.2d 489 [2014], lv dismissed 24 N.Y.3d 938, 993 N.Y.S.2d 549, 17 N.E.3d 1148 [2014] ). Even assuming respondent-undertenant had standing to assert a statute of limitations defense to the holdover petition (cf. Island Ventures v. Cohen , 90 A.D.2d 514, 454 N.Y.S.2d 1020 [1982]; see also 54 Featherco v. Correa , NYLJ, July 30, 1997, at 21, col. 1, [App. Term., 1st Dept. 1997], affd 251 A.D.2d 23, 673 N.Y.S.2d 658 [1988] ), the relied upon one-year statute of limitations contained in CPLR 215(4) is inapplicable. CPLR 215(4) provides for a one-year statute of limitations for:
"an action to enforce a penalty or forfeiture created by statute and given wholly or partly to any person who will prosecute; if the action is not commenced within the year by a private person, it may be commenced on behalf of the state, within three years after the commission of the offense, by the attorney-general or the district attorney of the county where the offense was committed..."
"The words ‘penalty or forfeiture’ when used in a Statute of Limitations refer to something imposed in a punitive way for an infraction of a public law and do not include a liability created for the purpose of redressing a private injury, even though the wrongful act be a public wrong and punishable as such" ( Sicolo v. Prudential Sav. Bank of Brooklyn, N.Y. , 5 N.Y.2d 254, 258, 184 N.Y.S.2d 100, 157 N.E.2d 284 [1959] ; see Sperry v. Crompton Corp. , 8 N.Y.3d 204, 213, 831 N.Y.S.2d 760, 863 N.E.2d 1012 [2007] ). The eviction sought in this proceeding is not a penalty or forfeiture, since it is not "impressed for punishment" ( Sicolo v. Prudential Sav. Bank of Brooklyn, N.Y. , 5 N.Y.2d at 258, 184 N.Y.S.2d 100, 157 N.E.2d 284 ). "Rather, tenant's eviction from the premises under the statute ( RPAPL 711[5] ) clearly was intended to protect the health, welfare and safety of the public residing in the same community as well as the tenants who reside in the same building ... and thus served a legitimate civil and remedial purpose" ( City of New York v. Wright , 162 Misc. 2d 572, 573, 618 N.Y.S.2d 938 [1994], affd 222 A.D.2d 374, 636 N.Y.S.2d 33 [1995], appeal dismissed 87 N.Y.2d 1054, 644 N.Y.S.2d 146, 666 N.E.2d 1060 [1996] ).
Moreover, CPLR 215(4) is also inapplicable because it is a special limitation provision governing statutorily created penalties and forfeitures given to a common informer ("any person who will prosecute"). The informer has one year to commence an action for the penalty. If he does not do so, the State may bring the action, subject to an additional two-year limitation (see Weinstein, Korn Miller, 1–215 NY Civ. Prac. CPLR ¶ 215.12 [2018]; 2A Carmody–Wait 2d § 13:190 ). The statute is applied in citizen-taxpayer actions to enforce public rights (see Matter of New York State Assn. of Plumbing–Heating–Cooling Contrs. v. Egan , 65 N.Y.2d 793, 493 N.Y.S.2d 112, 482 N.E.2d 908 [1985] [citizen taxpayer action under the State Finance Law for the return of illegally expended state funds]; Clowes v. Pulver , 258 A.D.2d 50, 691 N.Y.S.2d 649 [1999], lv dismissed 94 N.Y.2d 858, 704 N.Y.S.2d 533, 725 N.E.2d 1095 [1999] [citizen-taxpayer action under General Municipal Law to recover funds improperly paid for work performed on behalf of the County] ), and is not properly applied to a summary proceeding commenced by landlord in its proprietary capacity. Lower court cases such as New York City Hous. Auth. v. Pretto , 8 Misc. 3d 708, 795 N.Y.S.2d 871 (Civ. Ct., Bronx County 2005), which hold that the CPLR 215(4) one-year statute of limitations applies in an illegal use eviction proceeding should not be followed.
We have considered appellants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.