Opinion
106042/06.
Decided on December 24, 2007.
The petitioners were represented by Ivan B. Okun, Esq., Of Counsel, Kucker Bruh, LLP, New York, New York.
The respondents were represented by Marc Aronson, Esq., Brooklyn, New york.
The petitioners commenced this personal use holdover proceeding alleging that they need the subject premises, located at 325 First Street, Apartment B4, Brooklyn, New York 11215, for their son, Nicholas, who was planning to occupy the apartment as his primary residence with his spouse after their wedding on October 7, 2006.
PROCEDURAL BACKGROUND
On or about August 7, 2006, the petitioners served a "Notice of Intention of Non-Renewal of Lease and Intention to Commence an Action or Proceeding". The notice, dated August 4, 2006, informed the tenant, inter alia, that upon the expiration of her lease on November 30, 2006 the petitioners desired to withdraw the premises from the rental market, that the tenant of the adjoining apartment, B2, would be vacating on August 31, 2006, and that they planned to structurally combine the two apartments so that their son and his future spouse will have "a substantially larger apartment in which to reside".
This "Golub" notice was served by regular mail during the "window period" of no less than 90 days and not more than 150 days prior to the expiration of the current lease. Thereafter, on or about December 13, 2006, the petitioners served the "Notice of Petition and Petition" on the respondents.
Golub v. Frank, 65 NY2d 900; see, Trojan v. Wisniewska ,8 Misc 3d 382 [Heymann, J.] for an analysis of the relevant statutes regarding personal use holdover proceedings.
The matter first appeared on the Court's calendar on December 29, 2006 and was adjourned on consent to January 25, 2007. On January 25, 2007, the matter was adjourned to March 1, 2007 and the respondents agreed to serve an Answer by February 5, 2007. On February 5, 2007, the respondents' attorney served a "Notice of Appearance and Answer" containing twelve (12) affirmative defenses and three (3) counterclaims.
On March 1, 2007, a stipulation, dated February 28, 2007, was submitted to the Court which provided that the petitioners' attorney agreed to file motion papers by March 16, 2007, the respondents' attorney to respond by March 26, 2007 and the proceeding would be adjourned to April 10, 2007.
On April 10, 2007, the respondents requested another adjournment to May 7, 2007 to file opposition papers to the petitioners' motion to strike by April 24, 2007. The respondents agreed to pay Use and Occupancy [U O] in the amount of $637.46, pendente lite, commencing on April 17, 2007 and thereafter by the 5th day of each month as it comes due.
On May 7, 2007, by Court Order, the petitioners' motion to strike was adjourned to May 29, 2007 to provide the respondents an opportunity to submit written opposition by May 11, 2007 and the petitioners an opportunity to reply by May 18, 2007. If the respondents failed to respond, the petitioners' motion would be granted on default. The respondents agreed to pay $4462.22 (November 2006 — May 2007 U O at 637.46 per month) by May 14, 2007.
On May 29, 2007, this proceeding was "marked off cal[endar]" on the following terms: the branch of the respondents' cross-motion seeking discovery was granted to the extent of ordering depositions of George N. Malfis and his son, Nicholas G. Malfis, within thirty (30) days. The petitioners' motion to strike various affirmative defenses and counterclaims and the balance of the respondents' cross-motion in opposition thereto were then submitted to the Court.
As a result of the notation "marked off cal" on the file, the clerk inadvertently returned the entire file to the record room where it remained until the attorney for the petitioners contacted the Court to inquire as to whether a decision on the motions had been rendered. The file was immediately retrieved and disposed of as set forth herein.
The petitioners' motion seeks an Order a) to strike the respondents' Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and Twelfth Affirmative Defenses; b) to sever the First and Second Counterclaims and c) directing the respondents to tender ongoing U O during the pendency of this proceeding.
The respondents' cross-moved for an Order a) granting discovery, including depositions of the petitioner and his son, b) if the Court finds that any affirmative defenses in the respondents' Answer are insufficiently pleaded, granting them leave to serve an Amended Answer and c) denying the petitioners' motion to strike.
In addition to a "general denial", the respondents raise the following Affirmative Defenses:
FIRST: "Bad faith."
SECOND: "Notice defective on its face. Failure to provide sufficient facts. Allegations only on information and belief."
THIRD: "Insufficient time provided in Notice. Improper expiration date."
FOURTH: "Failure to serve a proper notice of termination or any predicate notice prior to holdover petition.
FIFTH: "Respondents are the proper rent stabilized or rent controlled tenant [sic] of the subject premises."
SIXTH: "Respondent is entitled to a renewal lease. Petitioner may not bring the instant holdover proceeding. Petitioner is not in compliance with Rent Stabilization, because lease has not been offered or provided, and therefore may not maintain this proceeding.
SEVENTH: "Respondent has been the tenant in the apartment for more than twenty years. Petitioner may not maintain this proceeding. Proceeding must be dismissed."
EIGHTH: "Bad faith. Landlord has sent same purported owner occupancy notices to other tenants in the building.
NINTH: "Laches. Waiver. Respondent has paid and Landlord accepted rent from respondent for over twenty years."
TENTH: "Improper verification of petition."
ELEVENTH: "Insufficient time provided in Notice of Termination."
TWELFTH: "Fail to name and serve a necessary party."
The respondents' Counterclaims read in relevant part as follows:
FIRST: "That Petitioner has commenced this proceeding in bad faith against Respondents, in an attempt to force a family out of their apartment."
SECOND: "Petitioner's action constitutes harassment and nuisance against Respondent's use and enjoyment of the premises, and is malicious prosecution and abuse of process."
THIRD: "That as a direct result of Petitioner's action, respondent prays for reasonable attorney's fees, as well as costs and disbursements in defending this proceeding."
As to the FIRST and SECOND Counterclaims the respondents are seeking "exemplary and punitive damages."
DISCUSSION AND CONCLUSIONS OF LAW
The above Affirmative Defenses bring to the fore many of the issues that could be raised in owner-use holdover proceedings and gives the Court the opportunity to highlight some of the case law and statutes on these issues.
At the outset, it should be noted that the Affirmative Defenses, as set forth in seriatum above, are conclusory in nature, devoid of any fact-specific information to support said conclusions.
The respondents' allegations that the petitioners failed to serve a proper notice of termination and predicate notice is without merit. The Court finds, as a matter of law, that the predicate "Golub" notice was more than sufficient to apprise the respondents of the petitioners' desire not to renew their lease, the basis for the non-renewal and that if the respondents do not vacate by a date certain, the petitioners will commence a formal eviction proceeding. Moreover, as this Court stated in Trojan v. Wisniewska , 8 Misc 3d 382, 389, "contrary to conventional wisdom", 30 day termination notices are not required in personal use holdover proceedings.
The Court finds no basis to the respondents claim that this proceeding was commenced in bad faith. In Borg v. Santos, 2007 NY SlipOp 27356, ____ Misc 3d ____, this Court stated that "the burden is on the petitioner to prove that his intention to use the respondent's apartment for his own use, or in this case, for use by a family member, is genuine." On its face, the notice in this proceeding appears to be made in good faith, and, to demonstrate that good faith, the petitioners consented to be deposed regarding their son's use of the subject premises as his primary residence. In addition, the respondents will have a full opportunity to cross-examine the petitioners and their witnesses at trial.
The respondents' defense that the petitioners must provide them with a renewal lease is in direct contradiction to the statutory exemption for personal use and occupancy holdover proceedings. Rent Stabilization Code [RSC] § 2524.4 states in relevant part:
Grounds for refusal to renew lease. . . without order of the DHCR.The owner shall not be required to offer a renewal lease to a tenant . . . and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required pursuant to section 2524.2 of this Part (Termination Notices) only on one or more of the following grounds:
(a) Occupancy by owner or member of owner's immediate family.
(1) An owner who seeks to recover possession of a housing accommodation for such owner'spersonal use and occupancy as his or her primary residence in the City of New York and/or forthe use and occupancy of a member of his or her immediate family as his or her primaryresidence in the City of New York . . . (Emphasis added)
Respondents' assertions that the defenses of laches and waiver warrant dismissal, based upon the timing of the commencement of the proceeding and the acceptance of rent for a period of twenty years, are without merit. Clearly, in this type of proceeding, there can be no laches as the facts and circumstances surrounding the basis for a landlord seeking to regain possession of his or her premises for personal use, or for another member of the family, is not an ongoing situation and only comes into play when triggered by certain events (i.e.: the marriage of a child who needs and/or desires the apartment as a primary residence, as in the case at bar). Unlike nonpayment proceedings where a landlord may have a valid claim for rent due and owing and then waits an inordinate period of time before commencing an action to recover same, thus allowing the rent to become "stale" and thereby prejudicing the tenant who might not be able to pay the accumulated rent arrears, no such prejudice exists in holdover proceedings. Since the basis for the holdover is recovery of possession of the premises by the landlord, the longer it takes the landlord to commence such proceeding the more time the tenant has to remain in said premises. Moreover, in personal/owner use and occupancy holdovers, the landlord is prohibited from commencing such proceeding prior to the expiration of the lease term and, as noted above, must serve the "Golub" notice of intent not to renew the lease within the prescribed "window period" only. (See, RSC § 2524.2) Notification prior thereto or subsequent thereto would vitiate the predicate notice and any subsequent proceeding, requiring the landlord to start the entire process all over again, one or two years hence, upon the expiration of the tenant's new lease renewal.
The acceptance of the respondents' rent for twenty years is not a bar to this proceeding. As this Court held in Glenbriar Company v. Nesbitt, 174 Misc 2d 547, the collection of rent, or even the commencement of a non-payment proceeding to obtain a judgment for rent due for any period up to the termination of the tenancy, inclusive of the 90 — 150 days "window period" after service of a "Golub" notice, is permissible and "not inconsistent with the intent to terminate the tenancy". Therefore, neither the defense of laches nor waiver are applicable under the circumstances of this case.
The respondents' claim that the petitioners cannot maintain this proceeding because the respondents have resided in the subject premises for more than twenty years is misplaced. A long term tenancy of twenty years or more automatically protects tenants in rent controlled premises only and has no impact with respect to this rent stabilized tenancy. (See, Residential Landlord-Tenant Law in New York, § 8:190) If it was alleged and proven that either or both of the respondents were senior citizens and/or disabled as defined in RSC §§ 2520.6(p) (q), respectively, then no eviction could occur unless the petitioners offered the respondents equivalent or superior housing at the same or lower regulated rent in a closely proximate area. RSC § 2524.4(a)(2); Borg v. Santos, 2007 NY SlipOp 27356, ____ Misc 3d ____, supra. No such claims or defenses have been forthcoming in the instant matter.
The respondents argue that the petitioners have acted in bad faith because similar notices were sent to other tenants in the subject building. That is not a defense to this proceeding. The petitioners made it clear in their "Golub" notice that they intended to combine the respondents' apartment with that of the adjoining tenant's apartment. It has recently been held that an owner has the right to recover an unlimited number of stabilized units for personal use and occupancy without DHCR approval as long as good faith and intent to use the premises as a primary residence is established. Pultz v. Economakis , 40 AD3d 24 (App.Div., 1st Dept. 2007)
The Court finds no merit to the respondents' argument that the notice of intent not to renew their lease did not provide sufficient time and that an improper expiration date was set forth in the notice. Regardless of whether the correct end of lease date is November 9, 2006 as claimed by the respondents, or November 30, 2006 as alleged by the petitioners, the notice was still timely served within the "window period". In any event, if the lease terminated on November 9, 2006 then the additional 21 days provided in the notice would inure to the benefit of the respondents, thus, there is no prejudice if such error did, in fact, occur.
The verification of the petition was properly signed by the petitioners' attorney as allowed by RPAPL § 741.
Finally, the respondents fail to state what necessary party, in addition to the named petitioners should have been served in this proceeding.
Based on the foregoing, the Court finds that the petitioners' motion to strike and to direct payment of ongoing U O is granted as follows:
The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Affirmative Defenses are stricken. The First and Second Counterclaims are severed. The respondents are directed to continue paying U O in the amount of $637.46 per month, without prejudice, as previously stipulated to.
The respondents' Cross-motion seeking discovery is granted to the extent that the parties, as noted above, were directed to conduct depositions within 30 days of this Court's Order of May 29, 2007. Therefore, as that time has long since passed, and there being no subsequent motions or requests by the respondents seeking such relief, the Court will conclude that any discovery sought by the respondents has been completed.
Regarding the respondents' second branch of the Cross-motion to serve an Amended Answer if the Court finds the original Answer is insufficient is denied. Respondent had ample time at the outset of this proceeding to prepare an answer that contained factual allegations to support the contentions raised therein. As petitioners state in their Affirmation in Reply, paragraph 15, and as this Court recently held in Griffin Units LLC v. Walker, 2007 NY SlipOp 52053 (U), "there are no do-overs' in this case.
The third branch of the Cross-motion to deny the petitioners' motion to strike the Affirmative Defenses and Counterclaims is disposed of as set forth above.
Accordingly, this matter will be restored to the Court's calendar for trial on January 21, 2008. All parties are directed to appear in Part C at 9:30 A.M. at which time the matter will be transferred to Part X for trial.
This constitutes the Decision and Order of the Court.