Opinion
Index No. 518837/2020
03-22-2021
PAZ RENTALS LLC, Plaintiff, v. DUNCAN BRYER, JOHN DOE & JANE DOE, Defendants.
NYSCEF DOC. NO. 27
DECISION/ORDER
Motion Seq. No. 1 and 2
Date Submitted: 3/22/2021 Recitation , as required by CPLR 2219 (a) , of the papers considered in the review of defendant Bryer's pre-answer motion to dismiss and plaintiff's cross motion for use and occupancy during the pendency of this action
| Papers | NYSCEF Doc. |
|---|---|
| Notice of Motion, Affirmations, Affidavits, and Exhibits Annexed | 5 - 14 |
| Notice of Cross Motion, Affirmations, Affidavits, and Exhibits | 17 - 22 |
| Affirmation in Opposition, Affidavits, and Exhibits Annexed | 23, 24 |
| Reply Affirmation | 25 |
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is an action for ejectment under Article 6 of the RPAPL, breach of contract, use and occupancy and attorneys' fees, with regard to Unit 4R of the premises known as and located at 57 Thames Street, Brooklyn, New York 11237. The property is Interim Multiple Dwelling No. 30106 pursuant to the property owner's 2015 registration with the NYC Loft Board (E-File Doc. 9). Defendant was not leasing the unit during the applicable "window period" and moved in, according to the lease (Doc 10), in 2018. This action was commenced in October 2020 in Supreme Court, presumably because of the overlapping and confusing stays which have been issued by various levels of government, staying eviction matters in NYC Civil Court during the Covid-19 Pandemic.
Defendant Bryer moves (MS #1) to dismiss the complaint. With regard to the cause of action for ejectment, he claims the predicate notice of termination was defective. He claims the causes of action for use and occupancy and for breach of contract (arrears in use and occupancy) must be dismissed because the owner is not in compliance with the Loft Law, and thus the Multiple Dwelling Law precludes the owner from collecting either rent or use and occupancy. Finally, defendant claims the plaintiff is not entitled to attorneys' fees in an ejectment action.
Defendant cross-moves for prospective use and occupancy (MS #2) at the monthly rate in the expired lease.
Discussion
"In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a) (7) 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail' " (Quinones v Schaap, 91 AD3d 739, 740 [2012], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275, 372 NE2d 17 [1977]). "The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference" (Hense v Baxter, 79 AD3d 814, 815, 914 NYS.2d 200 [2010]). However, if a condition precedent has not been complied with, the merit of the action is not relevant.
The court notes that the plaintiff is not the property owner. Plaintiff claims to be the net lessee of the building but provides nothing to support this claim. The lease between plaintiff and defendant states that plaintiff is the landlord, not the over tenant. The thirty-day notice of termination refers to Paz Rental [the correct name is Paz Rental LLC] as "sub-landlord." Counsel for plaintiff stated that the net lease expires in one year and is in the process of being negotiated and extended.
Defendant entered into a one-year lease for an illegal loft apartment, which expired on August 31, 2019. He did not renew the lease, nor did he move out. Apparently, he continued to pay rent and therefore became a month to month tenant. On July 15, 2020, almost a year after the lease expired, a Thirty Day Notice of Termination was signed by a principal of plaintiff, which states that defendant's month to month tenancy would be terminated effective August 31, 2020. He did not vacate, and this action was commenced on October 5, 2020.
Defendant claims he was entitled to sixty days' notice of termination, sometimes referred to as a "notice to quit", so the Notice was ineffective and the cause of action for ejectment must be dismissed. The lease is silent on the exact issue of a notice of termination which is unrelated to a default by the tenant that requires a notice to cure. If the lease had a specific provision, it would control. Plaintiff claims Real Property Law §232-a applies, which requires 30 days' notice to a month to month tenant. Defendant argues that RPL §226-c applies, not § 232-a, and thus 60 days' notice was required. The court finds that neither applies.
RPAPL Article 6 modified the common-law action of ejectment but did not replace it. "The common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute" (Alleyne v Townsley 110 AD2d 674 [2d Dept 1985]; Aponte v Santiago 165 Misc 2d 968 [Civ Ct, Bronx County 1995]). RPAPL Article 6 did not add any notice requirements, but neither did it abolish those notices required under common law. The common law does not require a notice to terminate a tenancy of a definite term, but it does require a notice to quit to remove a tenant of an indefinite term by an ejectment action (see Gerolemou v Soliz, 184 Misc 2d 579 [App Term, 2d Dept 2000]; Alleyne v Townsley, 110 AD2d 674 [1985]; Hsiu v Trujillo, 192 Misc 2d 147 [Sup Ct, Bronx County 2002]).
There have been some cases which have held that no notice is required before commencing an ejectment action (see Southside Dev. Co. v Mitchell, 156 AD2d 268 [1st Dept 1989]; O'Connor v Gallier, 7 Misc 3d 1016[A] [Sup Ct, Kings County 2005]; Aponte v Santiago, 165 Misc 2d 968 [Civ Ct, NY County 1995]). But a careful reading of these decisions indicates that no notice is required only if the termination is at the end of the lease term. No statute specifically abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (Alleyne, 110 AD2d at 675). But here, the termination did not occur until almost a year after the lease expired, and the over tenant accepted rent after the lease expired, and thus a notice was required.
To clarify, RPAPL Article 6, which partially codified the common-law action for ejectment, contains no requirement for a notice to quit or notice to terminate. However, at common law, notice was required in cases of "indefinite tenancies," but not in cases of tenancies of fixed and definite terms. This has been uniformly interpreted to mean that a month to month tenancy is indefinite and must be terminated, so the party terminating the tenancy can make its decision to terminate clear and known to the other party (see Kosa v Legg, 12 Misc 3d 369, 372 [Sup Ct, Kings County 2006]).
Real Property Law § 232-a provides for a 30-day notice of termination in the case of a month-to-month tenant. However, Real Property Law § 232-a by its express terms (and legislative history) applies only to a predicate notice for summary proceedings. Summary proceedings are governed by Article 7 of the RPAPL. This statute requires the notice of termination to specifically state that if the tenant does not move out by the day the notice indicates the term expires, the landlord will commence summary proceedings (see RPL § 232-a [emphasis added]). It makes no provision for a landlord commencing an action for ejectment and has been held to be inapplicable to ejectment actions.
At present, under the common law, the proper notice to terminate a month to month tenancy prior to commencing an ejectment action is six months. The Legislature has not adopted any notice requirements for removing month-to-month tenants in ejectment actions, nor has it specifically abolished the common-law six-month notice requirement for ejectment actions in cases involving month to month tenants. The only possible conclusion is that an owner who wishes to begin an ejectment action but who has accepted rent after the lease expired is required to give the tenant six-months' notice to vacate.
To repeat, when a fixed term expires and the landlord does not extend it by thereafter accepting rent, no notice is required. Where the landlord accepts rent after the lease has expired this thereby creates a month to month tenancy, and six months' notice is required (see 430 Broome St. Realty Corp. v Bonnouvrier, 17 Misc 3d 1128[A] [Sup Ct NY County 2007]; 47 Thames Realty, LLC v Kreiling, 16 Misc 3d 1112[A] [Sup Ct Kings County 2007]; Kosa v Legg, 12 Misc 3d 369, 383 [Sup Ct Kings County 2006]).
Here, paragraph 13 of plaintiff's counsel's affirmation (Doc 19) states that "To date, Defendant Bryer is liable for the total Rent, Electricity, Water, and Fios charges owed from March 2020 through October 2020 which collectively total $16,503.09." This can only mean that the over tenant accepted rent from defendant after the lease expired on August 31, 2019, specifically, from September 1, 2019 to February 28, 2020. This created a month to month tenancy and required a notice of termination. As the predicate notice that the plaintiff sent, a condition precedent to an ejectment action, was defective, the cause of action for ejectment must be dismissed.
The causes of action for breach of contract and use and occupancy must also be dismissed. First, as defendant's counsel points out in his affirmation (E-File Doc 24, Footnote 2), "plaintiff has not supplied any proof that it is, as it claims, the tenant of the fourth floor." The plaintiff's lease with the property owner, if there is one, is not recorded and is not in the record for this action. At oral argument, plaintiff's counsel stated that defendant did not raise this issue (not correct), so the court should not. He opined (incorrectly) that proof of standing was not required to oppose a pre-answer motion to dismiss which raises the issue.
Second, defendant avers that in the six years since the building was registered by the property owner with the Loft Board as an Interim Multiple Dwelling, no plans have been filed with the NYC Department of Buildings to legalize the building and obtain a certificate of occupancy (see Chazon LLC v Maugenest, 19 NY3d 410, 416 [2012]). The owner's failure to meet even the first "milestone" towards legalization, the filing of plans to obtain a permit, bars the collection of rent and use and occupancy. It is undisputed that plaintiff has failed to bring the building, which is an interim multiple dwelling under the Loft Law, into compliance with that law. As such, plaintiff cannot prevail on its causes of action for breach of the contract to pay rent and for use and occupancy as a matter of law (see Aurora Assoc. LLC v Hennen, 157 AD3d 608, 609 [1st Dept 2018]; Multiple Dwelling Law §§ 302 [1] [b]; 285 [1]; 281[5]).
Accordingly, defendant Bryer's motion to dismiss the complaint is granted and the complaint is dismissed. Plaintiff's cross motion for use and occupancy is denied.
This constitutes the decision and order of the court. Dated: March 22, 2021
ENTER:
/s/ _________
Hon. Debra Silber, J.S.C.