Opinion
93325/09.
Decided August 5, 2011.
Upon the foregoing papers, it is hereby ordered that defendant's motion is granted and plaintiff's motion is denied.
Robert Silversmith, Esq., Silversmith Veraja, LLP, New York, New York, Attorney for Petitioner.
Bethany Li, Esq., Asian American Legal Defense and Education Fund, New York, New York, Attorney for Respondent Susan Mui.
Anyekache Hercules, Brooklyn, New York, Guardian Ad Litem for Foon Mui.
United Jewish Council Senior Center, New York, New York, Foon Mui.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion by petitioner to strike defenses and for summary judgment.
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Opposition 2
Reply 3
Memorandum of Law 4
Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:
Patmund Realty Corp. ("petitioner") commenced this holdover proceeding based on its contention that the statutory rent-controlled tenant, Foon Mui ("tenant of record"), illegally altered the subject apartment and that he was not using it as his primary residence. Susan Mui ("respondent"), the tenant of record's daughter sued as "Jane Doe," answered the petition and asserted several defenses, affirmative defenses and counterclaims; including a claim of succession rights under the Rent Stabilization Code ("RSC"). The tenant of record failed to answer the petition. Petitioner now moves for summary judgment on its nonprimary residence claim against the tenant of record and respondent's succession claim. In the alternative, petitioner seeks to strike respondent's first defense, second defense and first affirmative defense (hereinafter collectively referred to as "succession defense").
By stipulation dated November 13, 2009, Asian American Legal Defense and Education Fund appeared on behalf of the tenant of record only. On December 10, 2010, the same counsel filed an answer only on behalf of respondent. At the request of the court, counsel has clarified on the record that her office only represents respondent.
Initially, the court notes that this case presents various procedural aberrations. In regard to the tenant of record, petitioner seeks summary judgment against him. However, petitioner did not serve the tenant of record with the motion, nor has issue been joined relating to him ( see Gluck v Wiroslaw, 113 Misc 2d 499, 500 [Civ Ct, NY County 1982] [in a holdover proceeding, when not otherwise provided for, the time to file an answer is extended when the case is adjourned]). After the motion was filed, it came to the court's attention that the tenant of record is 92 years old, does not speak English, and has difficulty ambulating. Based in part on the above, the court sua sponte appointed a guardian ad litem to protect whatever interests the tenant of record may have in this proceeding. After the guardian was appointed, petitioner was afforded an opportunity to properly re-serve the motion for summary judgment but declined. Accordingly, the motion for summary judgment against the tenant of record is denied without prejudice as premature and improperly served.
The other preliminary issue which the court need address is that respondent's answer asserts a succession claim under the RSC despite the parties agreeing that the apartment is subject to rent control. Notably, petitioner does not seek to strike respondent's succession claim on that ground. Thus, as the parties have treated respondent's answer as if it asserted a succession claim pursuant to the New York City Rent and Eviction Regulations ("Rent Control Law"), the court will do so as well for the purpose of deciding this motion. While the differences between the two regulatory frameworks are somewhat nuanced, in light of the issues raised in this proceeding, the court finds it important to note that it is following the course chartered by the parties. The court now turns to the substance of petitioner's motion.
Summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]). "The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'"( JMD Holding Corp. v Cong Fin Corp. , 4 NY3d 373 , 384 quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also Zuckerman v City of New York, 49 NY2d 557, 562). In considering such a motion, the court's responsibility is to determine whether a material issue of fact exists, not to determine said issue ( see Esteve v Abad, 271 AD 725, 727 [1st Dept 1947] ["the court is not authorized to try the issues but it must determine whether there is an issue to be tried"]).
Petitioner's motion for summary judgment is largely premised on respondent's admission that the tenant of record moved into a facility for senior citizens on or about March 2007 and that he did not inform the landlord about his move until sometime in 2009. In support, petitioner relies on First Department case law which holds that an occupant may be unable to prevail on a claim of succession rights to a rent-stabilized tenancy if, inter alia, the claim is not timely asserted and/or the party's actions frustrate a landlord's ability to defend against it ( see Metropolitan Life Ins. Co. v Butler, 2002 NY Slip Op 50014[U] [App Term, 1st Dept 2002] [noting that the "tenants of record cannot be said to have permanently vacated the apartment premises until the spring of 1999, since they never surrendered possession and continued to execute renewal leases extending through September 1999 . . . During the immediately preceding two year period, there was no showing that respondent lived in the premises with the tenants, since the tenants were concededly not residing there primarily"]; 72A Realty Assoc. v Kutno , 15 Misc 3d 100 , 102 [App Term, 1st Dept 2007]; 72A Realty Assoc. v Healey , 26 Misc 3d 132[A] [App Term, 1st Dept 2010]; Third Lenox Terrace Assoc. v Edwards, 23 Misc 3d 126[A] [App Term, 1st Dept 2009]; Clinton Realty Assoc. LLC v De Los Angeles, 29 Misc 3d 142[A] [App Term, 1st Dept 2010]; East 96th Street Co., LLC v Santos, 12 Misc 3d 133[A] [App Term, 1st Dept 2006]).
The cases relied upon by petitioner in support of its motion, however, are not applicable to the instant case as they all involve rent-stabilized tenancies, not those subject to rent control. Under the RSC, a successor tenant is expected to assert his or her claim at the time the first lease renewal is offered after the tenant of record vacates ( see 9 NYCRR § 2523.5[b]). As noted in Hughes v Lenox Hills Hosp.:"[the] language [of the Code] suggests that, in the ordinary course of events, a family member, who remains in the apartment following the departure of the named tenant, will receive a renewal notice towards the end of the lease term, directed to the named tenant; the recipient will thereupon inform the landlord of the tenant's departure as well as his status as a family member; and, assuming there is no dispute regarding his status, the surviving family member will receive a renewal lease designating him tenant of record" ( 226 AD2d 4, 13-14 [1st Dept 1996]). However, said requirement cannot be read into the Rent Control Laws as the tenant of record under those regulations is designated as such solely by statute, not by lease. Thus, there is no formal mechanism — i.e., the renewal of a lease — designated to address the transition to the successor tenancy under the Rent Control Laws. This distinction is notably highlighted by the different definitions of "tenant" found in the RSC and Rent Control Laws. The RSC defines "tenant" as "[a]ny person or persons named on a lease as lessee or lessess, who is or are a party or parties to a rental agreement and obligated to pay rent for the use and occupancy of a housing accommodation" ( 9 NYCRR § 2520.6[d]). In contrast, the Rent Control Laws utilize a much broader definition of "tenant," encompassing a "tenant, subtenant, lessee, sublessee or other person entitled to the possession or to the use or occupancy of any housing accommodation" ( 9 NYCRR § 2200.2[o]; 9 NYCRR § 26-403[m]). In this instance, respondent, as a family member, is protected under Rent Control Law § 2200.2(o) and thus not subject to eviction based on the tenant of record's permanent vacatur if she resided with the him in the subject premises "as a primary residence for a period of no less than two (2) years" as delineated by Rent Control Law § 2204.6(d). The court further notes that while the succession to the tenancy may still be subject to ratification by a court, respondent's claim ultimately relates back to the date of vacatur ( cf. 245 Realty Assoc. v Sussis, 245 AD2d 29, 33 [1st Dept 1998]).
The specific cases cited by petitioner are as follows: 72A Realty Assoc., 15 Misc 3d 100 (App Term, 1st Dept 2007); Metropolitan Life Ins. Co. v Butler, 2002 NY Slip Op 50014(U) (App Term, 1st Dept 2002); 360 W. 55th St. L.P. v Anvar , 13 Misc 3d 7 (App Term, 1st Dept 2006); Third Lenox Terrace Assoc. v Edwards, 23 Misc 3d 126(A) (App Term, 1st Dept 2009); South Pierre Assoc. v Mankowitz , 17 Misc 3d 53 (App Term, 1st Dept 2007). As discussed above and herein, these cases all involve rent-stabilized tenancies in which the tenant or undertenant acted in a manner which distorted the fact that the prime tenant no longer primarily resided in the premises.
In support of its motion, petitioner places great emphasis on its contention that the tenant of record never "permanently vacated" the premises. Petitioner argues that any succession claim must fail as a matter of law since it is uncontested that the tenant of record did not reside at the subject premises for approximately two years before he told the landlord of his absence. According to petitioner, under these circumstances, the permanent vacate date cannot be deemed to have occurred until 2009 or later and thus respondent and the tenant of record could not have contemporaneously resided at the subject premises for the preceding two years. While this analysis has been applied in the paradigm of rent stabilization, petitioner offers no support for its application to a rent-controlled tenancy. Rather, as noted by the Appellate Division, "there is no provision in the [Rent Control Laws] setting forth any guidelines or mandates involving a successor tenant as to what action an owner, or for that matter a tenant, must take with respect to changing the identification information pertaining to the tenancy . . . A family member who qualifies merely succeeds to the decedent tenant's rights if that is his or her choice" ( Matter of Klein v New York State Div. of Hous. Community Renewal , 17 AD3d 186 , 188-189 [1st Dept 2005]; compare 245 Realty Assoc., 243 AD2d at 35 [right to succession does not automatically vest in the context of a rent-stabilized tenancy, rather the putative tenant has the right to have the issue addressed at the time the renewal lease is offered]).
Petitioner also highlights that the tenant of record maintained a limited connection to the subject premises after he moved to the senior citizen home in that he continued to receive some mail there and kept a utility account in his name. Respondent states that since her father does not speak English, she would receive his mail and then read it to him when she regularly visited him at the senior center which is located near the subject premises. The nature of these acts alone, which are limited in nature, do not conclusively make out a claim for summary judgment in favor of petitioner. Furthermore, for purposes of this summary judgment motion, the court does not find great weight to the fact that a sole utility bill remained in the tenant or record's name after his vacatur ( cf. Matter of Herzog v Joy, 74 AD2d 372, 376 [1st Dept 1980] affd 53 NY2d 821 [1981] [holding that a successor tenant to a rent-controlled tenancy is entitled to possession "irrespective of who pays the rent, as long as it is paid"]).
Furthermore, the court notes that the cases cited in support of petitioner's claim for summary judgment all involve situations where the rent-stabilized tenant of record continued to sign renewal leases and pay rent in his or her name for an extended period of time after he or she ceased to primarily reside at the premises. None of these cases mention rent control or involve only a two-year delay in informing the landlord of the change in occupancy. Thus, absent evidence to the contrary, the relevant two-year period under Rent Control Law § 2204(d) for succession right analysis would be the period immediately preceding the tenant of record moving to the senior citizen home ( cf. Shadick v 430 Realty Co., 250 AD2d 417, 418 [1st Dept 1998]). This is not to say that respondent and/or the tenant of record's actions could not undermine the succession claim, it is simply that in the context of this motion for summary judgment, petitioner has not established as a matter of law that no viable succession claim can proceed ( see Myers by Myers v Fir Cab Corp., 64 NY2d 806 [where "competing inferences may reasonably be drawn" from the offered proof, summary judgment is inappropriate]).
However, assuming arguendo that the same principles relied upon in the cases cited by petitioner are applicable to succession claims under the Rent Control Laws, petitioner's motion would still fail as an issue of fact would exist as to whether the two-year delay in alerting petitioner of respondent's intention to succeed to the tenancy serves as a bar to prevailing on said claim. As noted above, all of the cases cited by petitioner involve situations where the tenant of record continued to sign renewal leases, or the occupant claiming succession rights forged the renewal leases in the name of the tenant of record, for periods in excess of two years ( see 72A Realty Assoc., 15 Misc 3d at 101-102; Metropolitan Life Ins. Co., 2002 NY Slip Op 50014[U]; 360 W. 55th St. L.P., 13 Misc 3d at 8; Third Lenox Terrace Assoc., 23 Misc 3d 126[A]; South Pierre Assoc., 17 Misc 3d at 54). Here, although the tenant of record did not notify the landlord of his vacatur until approximately two years after he moved to the senior citizen home, there is no allegation of fraud. Rather, it is uncontested that the tenant of record informed petitioner on his own accord and that respondent, not the tenant of record, regularly delivered and paid rent directly to the landlord. The two-year delay in this instance, which is alleged to have been made due to ignorance, may certainly be excusable ( cf. Riverton Assoc. v Knibb , 11 Misc 3d 14 , 15 [App Term, 1st Dept 2005] [succession claim to rent-stabilized tenancy was not forfeited by two-year delay in asserting said claim despite forging of a renewal lease in the name of the deceased tenant of record during that time]; see also 354 East 66th Street Realty Corp. v Curry , 26 Misc 3d 130[A] [App Term, 1st Dept 2010] [15 month delay in asserting succession claim during period of which landlord knew that the tenant of record was in a nursing home did not amount to a waiver of said claim]).
Petitioner also argues that it is entitled to summary judgment on respondent's succession claim on the basis that she did not primarily reside at the premises for the two years prior to the tenant of record vacating. Assuming that the vacatur date is 2007, the date at which the parties allege the tenant of record moved to the senior citizen home, the relevant period would be 2005-2007. Petitioner alleges that respondent did not primarily reside at the subject premises as she owned a home in Queens at that time and listed that address as her residence on her mortgage documents. Respondent, in turn, claims that she bought the Queens home for her children in 1999. She states that she moved into the subject premises with her father in 1964 and that she has primarily resided in the premises during the relevant time period. In support, she offers voluminous documentation showing her address as the subject premises from 2005 to present; including her driver's license, tax returns, bank statements, cell phone bills, employment correspondence, paychecks and car registrations. She also submits affidavits from neighbors and a co-worker corroborating her claim that she resides at the subject premise for at least the last several years. A "tenant's declaration of residence on a tax-related document, while one of many factors to be considered in determining primary residence, is not dispositive as a matter of law, especially in the context of a motion for summary judgment'" ( 111 Realty Co. v Sulkowska, 21 Misc 3d 53, 54 [App Term, 1st Dept 2008] quoting West 157th St. Assoc. v Sassoonian, 156 AD2d 137, 139). In light of the foregoing, any prima facie showing by petitioner of entitlement to summary judgment has certainly been rebutted by respondent — leaving an issue of fact for trial as to, inter alia, respondent's use of the premises prior to the tenant of record's vacatur.
Accordingly, petitioner's motion for summary judgment and to strike respondent's succession defense is denied. The tenant of record, through his guardian, is directed to serve and file an answer within ten (10) days of service of a copy of this order with notice of entry or it will be deemed a general denial. This matter is restored to the Part F calendar on September 19, 2011 at 9:30 am to be sent out forthwith to Part X for trial.
The foregoing constitutes the decision and order of this Court, copies of which are being sent to all parties.