Opinion
83676/2015
09-19-2016
East Village Re Holdings, LLC, Petitioner, v. Kelly McGowan, et al., Respondents.
Kossoff PLLC, New York City, for Petitioner. John T. Maher, New York City, for Respondents Kelly McGowan and Hamid Razik
Kossoff PLLC, New York City, for Petitioner. John T. Maher, New York City, for Respondents Kelly McGowan and Hamid Razik Michael L. Weisberg, J.
This is a holdover summary eviction proceeding premised on the allegation that Respondent Kelly McGowan has sublet or assigned her rent stabilized apartment without the permission of Petitioner. The apartment is located in the East Village; the registered legal regulated rent is $681.40. Petitioner alleges in its predicate notice to cure that 1) McGowan is "currently residing either at [address], Wurtsboro, NY 12790 and/or elsewhere other than at the premises involved;" and 2) McGowan has "permitted Hamid Razik, John Doe,' Jane Doe' and/or other individuals to use or occupy the premises involved and/or sublet the same or assigned [her] rights of tenancy to [the same individuals] without first obtaining your landlord's written consent ." No other facts are alleged.
Respondents have moved pre-answer to dismiss the petition on the ground, among others, that the predicate notice contains insufficient facts. Petitioner has cross-moved for an order granting it leave to conduct discovery and directing payment of use and occupancy. The motions are consolidated herein for disposition. A predicate notice served pursuant to the Rent Stabilization Code must state the facts necessary to establish the ground for eviction (69 E.M. LLC v Mejia, 49 Misc 3d 152[A], 2015 NY Slip Op 51765[U] [App Term, 1st Dept 2015]; Rent Stabilization Code [9 NYCRR] § 2524.2[b]). The facts must be pleaded with sufficient specificity: "broad, unparticularized allegations" that are "generic and conclusory" neither satisfy the level of specificity required by section 2524.2(b) nor do they enable the tenant to prepare a defense (69 E.M. LLC, 49 Misc 3d 152[A], citing Berkeley Assoc. Co. v. Camlakides, 173 AD2d 193 [1st Dept 1991], affd for reasons stated below 78 NY2d 1098 [1991]; see also London Terrace Gardens, L.P. v Heller, 40 Misc 3d 135[A], 2009 NY Slip Op 52858[U] [App Term, 1st Dept 2009] [generic and conclusory allegations did not satisfy requirement to set forth facts necessary to establish grounds for claim of nonprimary residence]). The Appellate Term has written that the "salutary" purpose of requiring specific facts is "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts" (London Terrace Gardens, L.P., 40 Misc 3d 135[A]). The seriousness with which that court reviews predicate notices to ensure that this purpose is not undermined is illustrated by the court's recent decision in 128 Second Realty LLC v Dobrowolski (51 Misc 3d 147[A], 2016 NY Slip Op 50772[U] [App Term, 1st Dept 2016]). In 128 Second Realty the landlord alleged that the tenant used his rent stabilized apartment as an unlawful hotel for at least the preceding six months. The factual allegations contained in the notice of termination on which the landlord based its claim were that: on numerous occasions, unidentified individuals have been observed entering the premises involved, carrying bags, luggage, and/or other items, and staying for short period of time, namely for approximately five nights, causing the premises involved, a Class "A" apartment, to be used on a transient basis . But the issue for the court below was not whether the predicate notice contained sufficiently specific facts. The tenant had actually argued that the petition failed to state a cause of action because no violations had been placed by the City of New York for the alleged illegal use. The lower court declined to dismiss, holding that violations were not necessary to establish a cause of action for using an apartment as a hotel room (128 Second Realty LLC v Dobrowolski, Civ Ct, NY County, Aug. 5, 2015, Milin, J., index No. LT52389/15).
McGowan acknowledges that she owns the property in Wurtsboro, but alleges it is a summer home only. She also acknowledges that Hamid Razik lives in the apartment, but alleges that he is her roommate. --------
The Appellate Term modified the lower court's order and dismissed the petition. It did so not because of the absence of violations, but because the facts alleged in the predicate notice were insufficiently specific. The court characterized the landlord's allegations as "vague and conclusory" and "note[d] the absence of any specific factual allegations which would support the landlord's claims that tenant is utilizing the stabilized apartment as an unlawful hotel' or causing the apartment to be utilized on a transient basis' in violation of the law" (128 Second Realty LLC, 2016 NY Slip Op 50772[U], *1-2). As Justice Shulman wrote in a concurring opinion, "this decision's message makes clear that a more thorough facts investigation should be undertaken before starting this nuisance-type eviction proceeding" (id. at *2).
Here, in an affidavit annexed to Petitioner's motion, Petitioner's managing agent does in fact claim to have undertaken a "comprehensive investigation" through which "I became aware that Respondent has not been residing at the subject premises and resides at either [the Wurtsboro address] or elsewhere unknown to Petitioner. Based on the foregoing, I authorized our attorneys to commence the instant holdover proceeding." But either the investigation revealed very little information or Petitioner has declined to share the information with Respondents and the court, as no additional details regarding what the comprehensive investigation entailed or revealed are provided in the affidavit or predicate notice. Petitioner alleges in its predicate notice that McGowan is living at an address in Wurtsboro "and/or somewhere else," but in any event not in the subject apartment. Petitioner does not allege any facts to support this claim. Petitioner also alleges that Razik and other individuals are living in the apartment and that McGowan is subletting to them. But again, Petitioner does not allege any facts to support these claims (especially the claim that Razik's occupancy rises to the level of sublet). The notice contains no other factual allegations. The comprehensive investigation appears to have left Petitioner in little better position than 128 Second Realty LLC when it comes to its ability to allege specific facts in support of its cause of action.
The paucity of specific facts in the notice is all the more glaring after reviewing Petitioner's burden of proof when alleging illegal sublet. Evidence that someone other than the tenant occupies an apartment, without more, does not establish a sublet (520 E. 81st St. Assoc. v Roughton-Hester, 157 AD2d 199, 201 [1st Dept 1990]; see also 445/86 Owners Corp. v Haydon, 300 AD2d 87, 88 [1st Dept 2002] [reversing summary judgment for landlord where "there is no evidence that such occupancy [by occupant] is by virtue of a right that cannot be revoked for a fixed period of time."]; but see Kimmel v Estate of Ling Kai K'Ung, NYLJ, Aug. 6, 1993 at 21, col. 5 [App Term, 1st Dept 1993] ["where, as here, a person other than the tenant is shown to be in possession of leasehold premises, the law will presume the existence of an assignment is not required."]). Likewise, to prove illegal sublet or assignment, a landlord must do more than simply demonstrate that the apartment is or may not be the tenant's primary residence (see 235 W. 71st St. LLC v Checkak, 16 AD3d 242 [1st Dept 2005] ["The only evidence proffered by petitioner was that the apartment may not be [the tenant's] primary residence. The proper procedure for terminating this tenancy was not initiated. The petition was thus properly dismissed."]).
The combined message of London Terrace and 128 Second Realty LLC could not be clearer. A holdover summary eviction proceeding must be based on concrete facts, not speculation or surmise, as evidenced by sufficient specific factual allegations in the predicate notice. If a landlord has concrete facts to support its claims, but fails to include them in the predicate notice out of expediency or the hope of gaining some advantage, it does so at its own peril. But if a landlord does not have concrete facts to support its claims, then it must refrain from commencing litigation until after it has conducted a thorough investigation. The court is not a place to throw claims against a wall just to see what sticks.
Because Petitioner has failed to set forth sufficient specific factual allegations in support of its claim that McGowan has sublet or assigned her apartment, the petition is dismissed. The court does not address the merits of Respondents' remaining claims. Petitioner's motion is denied as moot. Dated: September 19, 2016 ___________________________
Michael L. Weisberg