Opinion
L & T 79213/2015
01-08-2016
Stardom HDFC, Petitioner-Landlord, v. Mona Marlowe, Respondent-Tenant, "JOHN DOE" and/or "JANE DOE" Respondents-Undertenants.
SPERBER DENNENBERG & KAHAN, PC Attorneys for Petitioner By: Eric Kahan, Esq. 48 West 37th Street - 16th Floor New York, New York 10018 MONA MARLOWE Respondent Pro Se 330 West 51st Street, Apt. B-12 New York, New York 10019
SPERBER DENNENBERG & KAHAN, PC Attorneys for Petitioner By: Eric Kahan, Esq. 48 West 37th Street - 16th Floor New York, New York 10018 MONA MARLOWE Respondent Pro Se 330 West 51st Street, Apt. B-12 New York, New York 10019 Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by STARDOM HDFC (Petitioner) against MONA MARLOWE (Respondent), the rent stabilized tenant of record of 330 West 51st Street Street, Apt. B-12, New York, New York 10009 (Subject Premises) an SRO, based on the allegation Respondent had refused to relocate to substantially similar unit pursuant to Section 2524.3(g) of the Rent Stabilization Code.
PROCEDURAL HISTORY
Petitioner issued a Twenty Day Notice to relocate dated August 18, 2015. The notice
was served by mail on August 20, 2015 and provided that Respondent had until September 14, 2015 to relocate to Unit BD at 332 West 51st Street. Petitioner issued notice of Termination dated September 16, 2015, terminating Respondent's tenancy effective September 30, 2015. The Notice of Petition was issued by the clerk on October 6, 2015, and the proceeding was initially returnable October 22, 2015. The proceeding was adjourned to December 3, 3015 for all purposes. On December 3, 2015, Respondent filed an answer Pro Se.
Respondent asserted: that she was being harassed by Petitioner; that Petitioner was simultaneously prosecuting a nonpayment proceeding under Index Number 75637/2015 pursuant to which she had received a Marshal's notice; and that Petitioner owed her money due to rent overcharges and previous rent abatements.
Respondent's answer further provides:
I refused to relocate and SRO is not the min 150 sq ft (the law) - will go to Mayor, Senator, FBI, State Assembly, Public Advocate ... My mail is not coming ... illegal construction and fraudulent charges. Life in Danger.
On January 7, 2016, the proceeding was assigned to Part R for trial. The trial took place on said date and the court reserved decision.
RELATED NON PAYMENT PROCEEDING
Petitioner commenced a nonpayment proceeding against Respondent under index Number 75637/2015. The court takes judicial notice of the contents of said file and considers same to part of the record herein. Petitioner issued a rent demand dated July 29, 2015, for two months rent for June and July at $850 per month. The petition is dated August 31, 2015 and seeks rent for June through August 2015.
Respondent appeared through counsel and filed an answer date September 9, 2015, asserting defense including defective pleadings, and breach of quiet enjoyment. The proceeding was originally returnable September 28, 2015. It was adjourned by counsel to November 4, 2015.
On November 4, 2015, Petitioner moved for an order striking Respondent's affirmative defenses and counterclaims and awarding Petitioner summary judgment. Petitioner sought in its motion a judgment against Respondent for arrears for June through October 2015 totaling $4250.00. The motion was granted by the court (Stoller, J) on default, and a judgment was entered for $4250.00, issuance of the warrant was stayed five days for payment. The granting of the motion implicitly amended the petition to include all rent due and owing through October 2015. The warrant of eviction issued on November 12, 2015.
On December 14, 2015, Respondent moved for an order allowing her to proceed pro se and seeking to vacate the judgment and warrant. The motion was granted by the court (Stoller, J). The decision provided in pertinent part:
The Court grants Respondent's motion solely to the extent of vacating the default judgment against her, but with the provision that Petitioner's prior motion for summary judgment is granted to the extent of awarding Petitioner partial summary judgment as to its entire prima facie case, including that Respondent owes $4250.00 through October 2015, and the Court awards Petitioner's motion for summary judgment to the extent of dismissing the first through sixth defenses raised in Respondent's answer. The Court adjourns this matter for trial, solely on the issue of whether Respondent is entitled to relief on the seventh affirmative defense raised in the answer, and if so, how much. The Court also vacates the judgment conditioned on Petitioner's having leave to amend the petition to date on the date of the trial.
The Court grant's Petitioner's application to direct payment of $3,400.00 to Petitioner on or before December 21, 2015 pursuant to RPAPL §745(2), without prejudice to Respondent's defenses, meaning that if Respondent does not make this payment, Respondent's answer will be stricken and the Court will enter judgment against Respondent.
The seventh affirmative defense asserted breach of quiet enjoyment based on the construction in the subject building. The court set the matter down for a trial on the limited issue on January 7, 2016.
On January 5, 2016, Petitioner moved by Order to Show Cause for an order striking Respondent's answer and granting Petitioner a judgment for all rent due through December 2015 in the amount of $5950.00. An order was issued granting the motion on default on January 5, 2015. A subsequent order was issued on January 7, 2016, specifying that both a money judgment and a final judgment of possession were issued against Respondent in the amount of $5950.00 and staying issuance of the warrant through January 12, 2016 for payment of same. FINDINGS OF FACT
Petitioner is the owner of the Subject Building pursuant to a deed dated December 29, 2011 (Ex 1). The deed for the building includes both 330 West 51st Street and 332 West 51st Street .There is a valid MDR on file with HPD (Ex 2).
Rapal Markwat (RM) testified for Petitioner. RM is project manager and property manager for the subject building. The building is currently going through a renovation and construction project. The project is being done in two phases, and will involve combining the buildings at 330 and 332. The Subject Premises is an SRO unit. The purpose of the project is to preserve affordable and supportive housing in the Clinton neighborhood of Manhattan, and the housing will be geared to low income New Yorkers and formerly homeless New Yorkers. The project is funded by a City agency.
On April 13, 2015, DOB issued a work permit for the renovation and combination of the two buildings (Ex 3A). An additional work permit was issued by DOB on March 6, 2015, for mechanical work, plumbing and boiler installation in conjunction with the combination and renovation of the two buildings (Ex 3B).
Petitioner's application to do the work was approved by DOB on July 15, 2014 (Ex 4). The application indicates that there will be a change in the number of units in the building from 140 to 112. Floor plans for the project were also submitted into evidence (Ex 5). These floor plans shows the lay out of existing conditions pre-construction in both buildings.
On July 28, 2015, Petitioner wrote to Respondent asking that she temporarily relocate from the Subject Premises to a second floor unit in the front of the building in 352 West 51st Street in order for Petitioner to proceed with the renovations (Ex A). Petitioner offered to allow Respondent to stay rent free in the relocation unit until the renovated unit was ready for occupancy, but threatened if Respondent did not voluntarily vacate that Petitioner would "resume" the holdover proceeding.
RM testified that when project started other tenants were relocated, and that Respondent is the only one who has refused to relocate and the sole remaining occupant in the subject building.
RMs duties include supervising the day to day operations of occupied area in the project as well as ongoing construction through meetings with the contractor, architect and funding agency on a weekly basis. RM testified that the Subject Premises and the proposed relocation unit were approximately the same size and type of units both located on the second floor.
Respondent did not relocate.
RM testified that Petitioner made multiple attempts to speak with Respondent about relocating through written notices, by having SRO attorneys try and contact Respondent, and through Carlos Vargas, who works in the office with RM as a project assistant.
RM testified that Respondent did not respond to any of these efforts.
Respondent testified on her own behalf. Respondent's testimony was not credible or coherent. Respondent testified that when she received the relocation notice annexed to the Petition she would have been more than happy to look at the proposed relocation unit, but never did because Petitioner did not contact her to set it up.
Respondent testified that she does not object to relocating, and only failed to relocate because Petitioner never contacted her to show her unit BD. Respondent acknowledged she made no effort to see BD. Additionally, Respondent's testimony is belied by her answer filed in this proceeding, which explicitly states she refused to relocate to the proposed unit. Respondent had numerous opportunities to request that she be shown Unit BD, but even through the date of the trial Respondent never made any effort in this regard, because Respondent had no intention of relocating as indicated in her pleading. DISCUSSION
§ 2524.3(g) of the Rent Stabilization Code provides in pertinent part that any eviction proceeding against a rent stabilized tenant may be commenced after service of a termination notice:
For housing accommodations in hotels, the tenant has refused, after at least 20 days written notice, and an additional five days if the written notice is served by mail, to move to a substantially similar housing accommodation in the same building at the same legal regulated rent when there is a rehabilitation as set forth in section 2524.5(a)(3) of this Part, provided:
(1) that the owner has an approved plan to reconstruct, renovate or improve said housing accommodation or the building in which it is located; and
(2) that the move is reasonably necessary to permit such reconstruction, renovation or improvement; and
(3) that the owner moves the tenant's belongings to the other housing accommodation at the owner's cost and expense; and
(4) that the owner offers the tenant the right of reoccupancy of the reconstructed, renovated, or improved housing accommodation at the same legal rent unless such rent is otherwise provided for pursuant to section 2524.5(a)(3) of this Part (Other grounds for eviction).
§2524.5(a)(3) of the Rent Stabilization Code defines the applicable renovation as one where:
The owner will eliminate inadequate, unsafe or unsanitary conditions and demolish or rehabilitate the dwelling unit pursuant to the provisions of article VIII, VIII-A, XIV, XV or XVII of the PHFL, the Housing New York Program Act, or sections 8 and 17 of the U.S. Housing act of 1937 (National Housing Act)... .
Petitioner did establish at trial many of the elements required by statute. However, one of the defenses in Respondent's answer raised the issue of Petitioner's simultaneous prosecution of this proceeding and the nonpayment proceeding.
The notice of termination herein terminated Respondent's tenancy effective September 30, 2015. However, Petitioner continued to prosecute the nonpayment proceeding and twice sought to amend the petition once to include rent due through October 2015, which was granted and upon which judgment was entered, and then again seeking and obtaining a judgment for rent arrears through December 2015, necessarily amending the petition to include all rents due through said date.
These actions reaffirmed Respondent's tenancy and vitiated the termination notice herein (Shahid v Carillo 18 Misc 3d 136(A); 200 Eleventh Associates v Lamontagne 14 Misc 3d 139(A); Ansonia Associates v Pearlstein 122 Misc 2d 566).
Based on the foregoing the petition is dismissed.
This constitutes the decision and order of the Court.
Parties may pick up exhibits, within thirty days of the date of this decision, from Window 9 in the clerk's office on the second floor of the courthouse. After thirty days, the exhibits may be shredded, in accordance with administrative directives.
Dated: New York, New York January 8, 2016
__________________ Sabrina B. Kraus, JHC TO:
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OCA e-submission: no Judge E-Mail