Opinion
109605/10.
Decided April 25, 2011.
BRADLEY R. SIEGEL, ESQ., EAST MEADOW, NY, ATTORNEY FOR THE PLAINTIFF.
Upon the foregoing papers, the decision and order of the court is as follows:
This is an action for: (1) monetary damages based upon a tenant's alleged failure to provide access for repairs; (2) a judgment of possession; (3) permanent use and occupancy; and (4) attorney's fees. Plaintiff, Madeline D'Anthony Enterprises, Inc. ("D'Anthony"), is the owner of the building located at 279 Church Street, New York, New York (the "Building"). Defendant, Robert (Robbie) Sokolowsky ("Sokolowsky" or "tenant"), is leasing the 5th floor of the Building (the "Premises"). Green City Media a/k/a Green City Media.Com ("Green City") is the trade name of Sokolowsky.
Plaintiff initiated this action by serving defendants a summons and verified complaint, in which plaintiff asserts 8 causes of action for: monetary damages resulting from defendants' failure to provide access (COA1, COA2, COA3 and COA4); a judgment of possession (COA5); permanent use and occupancy (COA6); and attorney's fees (COA7 and COA8).
Defendants have asserted eight counter-claims against plaintiff for: a declaratory judgment that the Building is an interim multiple dwelling ("IMD") (CC1); breach of the warranty of habitability (CC2); negligence (CC3); constructive eviction (CC4); partial eviction (CC5); violation of Real Property Law § 235-d (CC6); attorney's fees for a prior civil court proceeding (CC7); and attorney's fees for this action (CC8).
Presently before the court is plaintiff's motion, brought by order to show cause, seeking (1) temporary use and occupancy; (2) enjoining defendants from accessing the deck adjacent to the 5th floor unit until plaintiff has completed repairs to stop reoccurring water leaks; (3) allowing plaintiff to access all parts of the 5th floor so that plaintiff may inspect and repair violation No. 3486325K, issued by the NYC Buildings Department, and make other repairs; and (4) to amend the complaint pursuant to CPLR § 3205(b).
Defendants oppose the preliminary injunction and cross-move for summary judgment dismissing the complaint, based on their first counterclaim (CC1) that defendants' tenancy is protected under Multiple Dwelling Law ("MDL") Article 7-C. Plaintiff then further cross-moved for summary judgment and other relief; however, the CPLR provides no bass to "cross-move" to a cross-motion. See generally CPLR Article 22. The alternative relief requested in such "cross-motion" will not be considered by the Court. The submission will, instead, be considered as a reply on the motion and in opposition to defendants' cross-motion.
Issue has been joined on the complaint and the counterclaims, and the filing of the note of issue has not yet occurred. CPLR § 3212(a); Myung Chun v. North American Mortgage Co., 285 AD2d 42 (1st Dept. 2001).
The court's decision and order is as follows:
Background
It is undisputed that Sokolowsky was the lessee of the 5th floor, pursuant to a Standard Form Loft Lease (the "Lease") dated September 1, 2007. The Lease was for a one-year term, renewable with an automatic conversion to a month-to-month tenancy. Paragraph 2 of the Lease provides that "Tenant shall use and occupy the demised premises for office [sic] provided such use is in accordance with the certificate of occupancy for the building, if any, and for no other purpose." Under the Lease, the owner retains a right of entry to the Premises.
The Lease states, in relevant part, that:
Access to Premises: 13. Owner or Owner's agents shall have the right . . . to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building, or which Owner may elect to perform in the demised premises after Tenant's failure to make repairs, or perform any work which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Tenant shall permit Owner to use, maintain and replace pipes and conduits in and through the demised premises, and to erect new pipes and conduits therein provided, wherever possible, they are within walls or otherwise concealed.
Discussion Use and Occupancy
Plaintiff seeks interim use and occupancy in its order to show cause. Plaintiff also seeks permanent use and occupancy under COA6. Defendants' defense to the claims for use and occupancy is that the Premises is an IMD, subject to the MDL, which requires there to be a valid Certificate of Occupancy before a landlord can be awarded any use and occupancy, temporary or permanent. In fact, this is the basis for the defendants' first counterclaim (CC1). Consequently, the issues of whether, as a matter of law, this is an IMD and whether the plaintiff has a right to collect use and occupancy, are considered together.
The purpose of the Loft Law is to legalize de facto multiple dwellings that are not up to code. See Matter of Lower Manhattan Loft Tenants v. New York City Loft Bd., 66 NY2d 298, 302-03 (1985). The law is intended "to confer rent stabilized status on legalized interim multiple dwellings" ( 91 Fifth Ave. Corp. v. NYC Loft Bd., 249 AD2d 248, 249, appeal dismissed 92 NY2d 918). Jo-Fra Properties, Inc. v. Bobbe , 81 AD3d 29 (1st Dept. 2010).
With the enactment of the Loft Law in 1982, owners of interim multiple dwellings were given a timetable in which they could obtain a certificate of occupancy. MDL § 284(1)(i). If they complied with that timetable, they were entitled to collect rent, even if they had not yet obtained a certificate of occupancy (§ 285); otherwise, the lack of a proper certificate of occupancy would preclude a right to collect rent for those properties (§ 302[1][b]; see Cromwell v. Le Sannom Bldg. Corp., 171 AD2d 458; County Dollar Corp. v. Douglas, 161 AD2d 370). Jo-Fra Properties, Inc. v. Bobbe, supra.
In the same respect, under the MDL, "if any dwelling or structure [is] occupied in whole or in part for human habitation in violation of section three hundred one . . . no rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent." MDL § 302.
Here, plaintiff does not dispute the fact that it has not obtained a certificate of occupancy, despite numerous violations from the DOB stating that the building is illegally being occupied as a multiple dwelling in a commercial district (violation # 34285446H, dated 6/27/09; violation # 34740969Z, dated 2/25/09; violation # 34740966N, dated 2/25/09; violation # 34740968R, dated 2/25/09; and violation # 34740965L, dated 2/25/09).
Plaintiff argues, instead, that defendants' tenancy is not protected pursuant to the MDL and that the Premises is not an IMD. Plaintiff further contends, inter alia, that the issue of whether the MDL applies to the Building is best determined by the Loft Board; that it still has time to comply or file a hardship application; and, finally, there are issues of fact regarding whether three families lived independently in the Building during the relevant window period, which is the factual predicate for an IMD.
At the outset, the Court rejects the contention that only the Loft Board should be determining the parties' dispute. The issue of whether this is an IMD is squarely before the Court at this time and needs resolution before the issues of entitlement to use and occupancy, raised by plaintiff, can be determined. The only real dispute about whether this is an IMD concerns whether three families lived independently from one another for a period of twelve consecutive months commencing January 1, 2008. Defendants claim that this condition has been satisfied; plaintiff says it has not been satisfied.
Interim multiple dwelling is defined in Section 281 of the MDL, as follows:
§ 281. Definition of "interim multiple dwelling"
1. Except as provided in subdivision two of this section, the term "interim multiple dwelling" means any building or structure or portion thereof located in a city of more than one million persons which (i) at any time was occupied for manufacturing, commercial, or warehouse purposes; and (ii) lacks a certificate of compliance or occupancy pursuant to section three hundred one of this chapter; and (iii) on December first, nineteen hundred eighty-one was occupied for residential purposes since April first, nineteen hundred eighty as the residence or home of any three or more families living independently of one another.
. . .
5. Notwithstanding the provisions of paragraphs (i), (iii) and (iv) of subdivision two of this section, but subject to paragraphs (i) and (ii) of subdivision one of this section and paragraph (ii) of subdivision two of this section, the term "interim multiple dwelling" shall include buildings, structures or portions thereof that are located in a city of more than one million persons which were occupied for residential purposes as the residence or home of any three or more families living independently from one another for a period of twelve consecutive months during the period commencing January first, two thousand eight, and ending December thirty-first, two thousand nine . . . (emphasis added).
The parties essentially have no factual dispute. This issue here is how the Court should determine "consecutive living" under the MDL. Defendants provide the affidavits of Kimberly Burns ("Burns") and Joseph X. Kushner ("Kushner"), taken from prior litigation. Burns stated that the 3rd floor unit was configured for residential use and that she resided there from November 1, 2006 through October 31, 2008. Burns further stated that the first floor contained a commercial unit and floors two through five contained one residential unit each. Kushner stated that he lived In the 4th floor unit with is wife and son from May 1, 2007 through April 30, 2008. Therefore, when defendants' Lease commenced on September 1, 2007, there were at least three or more families living independently of one another in the Building absent a certificate of occupancy, for twelve consecutive months.
The statute does not require that all three families occupy the premises for the same exact twelve months, only that over the relevant twelve-month period, three or more unrelated families occupied the premises for residential purposes.
The Court finds that the purpose of the Loft Law is to match actual use with the legal requirements applicable thereto; therefore, the law needs to be read expansively to include loft buildings where there was systematic residential use during the window periods. Here, at least three of the residential units were occupied for a period during a consecutive twelve-month period through 2008 (the relevant window period).
Furthermore, plaintiff's affirmative obligation to register the Buildings as an IMD is not avoidable by a claimed lack of knowledge of the tenants' residential tenancy. Jo-Fra Properties, Inc. v. Bobbe, supra. Additionally, its receipt of violations citing illegal residential use establishes plaintiff's awareness. Plaintiff's failure to take the steps necessary to obtain a certificate of occupancy for the Building precludes it from obtaining the use and occupancy award it seeks at this time.
To the extent that plaintiff argues it is presently entitled to an exemption from the Loft Board on the basis that obtaining a residential certificate of occupancy would cause unjustifiable hardship (MDL § 285[2]), the court finds this argument unpersuasive. Although plaintiff had nine months to file for unjustifiable hardship (until March 21, 2011), the Building must first be registered as an IMD. See 29 RCNY § 2-03(3). Plaintiff has not shown that it has made any attempts or taken any steps to obtain a certificate of occupancy or to register the Building as an IMD since its first violation issued in 2001. In fact, plaintiff disputed the fact that the MDL even applied to its Building in the first place. Based on the foregoing, the Court finds that the Building is an IMD pursuant to MDL Article 7-C and Sokolowsky is a protected occupant. Accordingly, defendants' first counterclaim for a declaration against plaintiff is granted and plaintiffs' motion for interim use and occupancy is denied.
Preliminary Injunction
The NYC Department of Buildings ("DOB") received a complaint on March 25, 2010 regarding improper drainage and/or failure to retain water at the Building. On March 29, 2010, the DOB was unable to gain access to the roof top at the time of inspection. The DOB issued violation # 3486325K on June 28, 2010 for "erecting full height partitions, plumbing waste water lines w/o a perm."
Plaintiff argues that it needs access to the 5th floor in order to inspect and repair the leaks which are causing damage to the 4th floor, the common areas of the Building, and the adjacent building. Plaintiff states that due to a leak in defendants' skylight, every time it rains, water pours into the Building, causing continuing and harmful damage to the walls, floors, and staircase. Plaintiff contends that it has no other means of accessing the 5th floor and cannot otherwise correct the violation. Plaintiff states that despite demanding access by telephone, email, and letter, defendants have continually denied plaintiff access to the 5th floor.
Defendants contend that plaintiff's requests for access are premature since the Building does not comply with the Loft Board requirements and lacks a residential Certificate of Occupancy. Defendants contend that violation # 3486325K was issued because plaintiff installed water and waste lines for kitchens and bathrooms on floors 2 through 5 without a permit.
In order to obtain a preliminary injunction, plaintiff must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction, and a balance of equities in their favor. See CPLR § 6301; Nobu Next Door, LLC v. Fine Arts Housing, Inc. , 4 NY3d 839 (2005); Aetna Insurance Co., Inc. v. Capasso, 75 NY2d 860 (1990); W.T. Grant Co. v. Srogi, 52 NY2d 496 (1981). Although the party seeking a preliminary injunction does not have to provide conclusive proof of its right to such relief, and a preliminary injunction can, in the court's discretion, even be issued where there are disputed facts ( Terrell v. Terrell, 279 AD2d 301 [1st Dept. 2001]), generally a preliminary injunction will be denied unless the relief is necessitated and justified from the undisputed facts ( O'Hara v. Corporate Audit Co., 161 AD2d 309 [1st Dept. 1990]).
In this context, "irreparable injury" means a continuing harm resulting in substantial prejudice caused by the acts sought to be restrained if permitted to continue pendente lite, and if granted, tailored to fit the circumstances so as to preserve the status quo to the extent possible. See generally, Second on Second Café, Inc. v. Hing Sing Trading, Inc. , 66 AD3d 255 (1st Dept. 2009).
Plaintiff has demonstrated a likelihood of success on the merits. It is unrefuted that defendants have not allowed, nor will they now permit, plaintiff to access to the 5th floor for inspection and repairs. Since the right of the owner to enter the Premises to make repairs or comply "with laws, regulations and other directions of governmental authorities," is a condition of the Lease, and that condition has not been satisfied, plaintiff has made a threshold showing of success on the merits.
Plaintiff has also shown a danger of irreparable injury in the absence of an injunction. It is undisputed that violation # 3486325K is currently outstanding. Additionally, defendants do not deny the fact that water is leaking and damaging the Building. Accordingly, failure to allow the plaintiff to access the 5th floor to inspect and repair the leak and cure the outstanding violation would result in the danger of irreparable injury.
Plaintiff has also shown a balance of equities in its favor. Defendants show no harm that would result by allowing plaintiff to access the premises, whereas plaintiff has demonstrated that failure to enter is and will continue to result to damage to the 4th floor, the common areas of the Building, and the adjacent building. The evidence shows that the defendants have a right to enter the apartments to make an inspection of the work while being performed. This is for the safety of all tenants and outweighs defendants' contention that repairs are premature. Plaintiff's motion for a preliminary injunction against defendants is, therefore, granted.
Notwithstanding that plaintiff should get immediate access to make repairs, no showing has been made to limit the defendants from access to the deck. That aspect of the relief sought by plaintiff is denied.
Amending the Complaint
Plaintiff moves to amend the complaint to add a 9th cause of action for an injunction directing defendants to provide plaintiff access to the entire 5th floor and from enjoining defendants from accessing the deck adjacent to the 5th floor unit until after the emergency repairs are completed. Plaintiff also moves to add a 10th cause of action for an injunction so that plaintiff can legalize "the Fifth Floor Work" and to enjoin defendants from interfering with or refusing to allow plaintiff access until the work is completed.
In the absence of prejudice or surprise resulting directly from the delay, leave to amend a pleading is freely given, pursuant to CPLR § 3025(b). Fahey v. County of Ontario, 44 NY2d 934 (1978). Moreover, leave should be granted when the denial of the motion would create a greater prejudice than granting it. Murray v. City of New York, 43 NY2d 400 (1977); Adams Drug Co. v. Knobel, 129 AD2d 401 (1st Dept. 1987). However, an order allowing the amendment should not be granted without considering the validity of the claim sought to be asserted. Thus, "the sufficiency or meritoriousness of a proposed pleading or matter" should be resolved at the outset "to obviate the possibility of needless time consuming litigation." Sharapata v. Town of Islip, 82 AD2d 350, 362 affd 56 NY2d 332 (1982). The moving party is required to show that the new claims have a colorable basis. NAB Construction Corp. v. Metropolitan Transportation Authority, 167 AD2d 301 (1st Dept. 1990).
Accordingly, plaintiff's motion to amend the complaint is granted. Plaintiff may serve the proposed Amended Summons and Verified Complaint in the form submitted to the court on this OSC (Exhibit "A"). Such service shall be made on all parties who have appeared in this action within 20 days.
Summary Judgment
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64 (1980). Only if this burden is met, will it then shift to the opposing party, who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. Although defendants have cross-moved for summary judgment dismissing the complaint, they have failed to make a prima facie showing that would eliminate any material issues of fact. Accordingly, defendants' motion for summary judgment dismissing the complaint is denied for the reasons that follow:
Defendants have not shown that there is no damage to the Building based on their failure to provide access to repair the leaks, therefore, COA1, COA2, COA3, and COA4 remain. Defendants have not shown that plaintiff, as a matter of law, is not entitled to a judgment of possession and/or that they are entitled to continued occupancy, therefore COA5 remains.
Although a landlord is barred from collecting rent for the period of non-compliance, once a landlord obtains a certificate of occupancy, s/he will be able to recover only those rents that accrue after s/he is in compliance. Lee v. Gasoi, 113 Misc 2d 760 affd 126 Misc 2d 719 affd 119 AD2d 1016 (1st Dept. 1986). However, if a tenant takes occupancy and is aware that the building lacked a certificate of occupancy, then the landlord can collect rent for the period of non-compliance once the landlord has actually complied. Lipkis v. Pikus, 99 Misc 2d 518 affd 72 AD2d 697 appeal dismissed 51 NY2d 874. Therefore, if plaintiff obtains a certificate of occupancy, it may be eligible to collect rent for the period of non-compliance, if defendants were aware when they first leased the premises that the building lacked a certificate of occupancy. These facts are undeveloped. Therefore, COA6 remains for now.
It is premature to determine whether plaintiff will ultimately be entitled to attorney's fees, therefore, COA7 and COA8 remain as well. Conclusion In accordance herewith, it is hereby: Ordered that plaintiff's OSC is DENIED with respect to receiving temporary use and occupancy; and it is further Ordered that plaintiff's OSC is GRANTED with respect to its request for a preliminary injunction for access. Defendants shall allow plaintiff access, in accordance with this Decision/Order, on May 25, 2011 between the hours of 8 a.m. — 5 p.m., unless the parties agree to another mutually convenient time. Access shall continue, day by day only on business days (non-holiday Monday through Friday), until the leak is corrected; and it is further
Ordered, Adjudged, and Declared that defendant, ROBERT (ROBBIE) SOKOLOWSKY and GREEN CITY MEDIA a/k/a GREEN CITY MEDIA.COM's cross-motion for summary judgment on their first counterclaim is hereby GRANTED and it is declared that the Building is an IMD pursuant to MDL Article 7-C and ROBERT (ROBBIE) SOKOLOWSKY is a protected occupant; and it is further
Ordered that defendants' motion for summary judgment dismissing the complaint is DENIED; and it is further Ordered that this since a preliminary conference has not yet been held in this case, it is hereby scheduled for June 9, 2011 at 9:30 a.m. in Part 10, 60 Centre Street, Room 232. No further notices will be sent; and it is further Ordered that any requested relief not expressly addressed herein has nonetheless been considered by the court and is denied; and it is further
Ordered that this shall constitute the decision and order of the court.