Opinion
Index No.: L&T 52496/2016
07-11-2016
PB 165 WILLIAM STREET HOLDINGS LLC, Petitioner-Landlord v. DAN SERO-BOIM a/k/a DAN SERO-BOIN 165 William Street - Apt. 8 New York, New York 10038 Respondent- Tenant ANASTACIA KURYLO, MICHAEL KURYLO and "John Doe" & "Jane Doe" Respondents-Undertenants
TO: BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Petitioner By: William E. Baney, Esq. 270 Madison Avenue New York, New York 10016 212.867.0709 WEEN & KOZEK, PLLC Attorneys for Respondent By: Michael Kozek, Esq. 150 Broadway, 19th Floor New York, New York 10038 212.964.1822
DECISION & ORDER
BACKGROUND
This summary holdover proceeding was commenced by PB 165 WILLIAM STREET HOLDINGS LLC (Petitioner) against DAN SERO-BOIM a/k/a DAN SERO-BOIN (Tenant), the rent stabilized tenant of record, (Respondent), and ANASTACIA KURYLO (AK) and MICHAEL KURYLO (collectively "Respondents") seeking to recover possession of 165 William Street - Apt. 8, New York, New York 10038 (Subject Premises) based on the allegation that Tenant was not primarily residing in the Subject Premises. Respondents, the daughter and son-in-law of Tenant, have appeared and asserted defenses including illusory tenancy, and that Petitioner and its predecessors had recognized Respondents as tenants or co-tenants.
THE PENDING MOTIONS
On May 10, 2016, Petitioner moved for summary judgment and related relief. On May 27, 2016, Respondents cross-moved for summary judgment. On July 8, 2016, the court heard oral argument and reserved decision. The motions are consolidated herein for determination and granted to the extent provided below.
SUMMARY OF FACTS ALLEGED
AK asserts that she has lived in the Subject Premises for most of her life, and that she has continuously resided there since 1996. AK states that Tenant moved out many years ago but does not state when. There is some allegation that there was co-occupancy after 1996 date, but no specific details are provided. There is a general statement that Respondents worked in some capacity with Tenant shortly after 1996.
AK made payments directly to Petitioner for certain periods, and was billed as a tenant or co-tenant by Petitioner. AK wanted to be added as a tenant of record to the lease, but as late as 2014, Tenant would not agree to same. Tenant continued to execute and return renewals through December 2013, for a term through December 2015. Tenant has not appeared in this proceeding. Petitioner asserts that tenant is residing in Florida.
DISCUSSION
Petitioner's motion for summary judgment as to Tenant is denied. The court notes that Tenant was not served with the motion papers at the alleged address where he resides. There are other issues herein which will require a trial, and Tenant asserted in writing to AK, as late as 2014, that they were occupying the Subject Premises together. Petitioner's request for a judgment as to Tenant should be made at the trial.
Petitioner's motion to dismiss Respondent's first affirmative defense is granted. A rent-stabilized tenancy can not be created by waiver or estoppel (Gregory v Colonial DPC Corp III 234 AD2d 419; Riverside Holdings LLC v Murray 2002 NY Slip Op 50176(U)). The fact that Petitioner was aware that the Subject Premises were occupied by the immediate family members of the tenant of record does not warrant a different result (Riverside Holdings LLC v Thomas NYLJ May 1, 2002). This finding is further supported by Tenant's express refusal to agree to allow Respondent to be added as a co-tenant on the lease. Moreover, Petitioner could not have created a new tenancy with Respondents prior to surrender or termination of Tenant's tenancy, neither one of which occurred. For the same reasons, Respondents' motion for summary judgment on this defense is denied.
Petitioner's motion to dismiss Respondent's first objection in point of law which asserts failure to state a cause of action is denied, as such defense is not subject to dismissal on a pre-trial motion as it may be asserted at any time even if not pled (Riland v Frederick Todman & Co. 56 AD2d 350).
Petitioner's motion to dismiss Respondents' second objection in point of law is granted and there is no requirement to serve undertenants with the underlying notice of non-renewal [West End Assoc. v. McGlone 32 Misc.3d 145(A)].
The court finds that there are questions of fact requiring a trial as pertains to Respondents' illusory defense. Petitioner has failed to establish a right to summary dismissal of said defense. It appears that Tenant may have intentionally prevented his daughter from being in a position to assert succession or become a co-tenant in order to exclusively preserve his own rights. However, the details as to these issues are not clear. There is no date as to when Tenant permanently vacated and it is unclear what if any period Respondents and Tenant lived together in the Subject Premises.
Petitioner's motion for discovery is denied to the extent of requiring Respondents to produce the documents requested. Petitioner has failed to establish ample need for the production of said documents, none of which are in Respondents' exclusive custody and control. Petitioner's request to depose Respondents is granted. Respondents shall appear for a deposition within 45 days. Respondents to pay use and occupancy at the last lease rate pendente lite from August 2016 forward by the 10 of each month, without prejudice to either parties' rights and claims.
The proceeding is marked off calendar pending completion of discovery. The proceeding may be restored by stipulation or motion on completion of discovery.
This constitutes the decision and order of the Court. Dated: New York, New York
July 11, 2016
/s/_________
Sabrina B. Kraus, JHC TO: BELKIN BURDEN WENIG & GOLDMAN, LLP
Attorneys for Petitioner
By: William E. Baney, Esq.
270 Madison Avenue
New York, New York 10016
212.867.0709
WEEN & KOZEK, PLLC
Attorneys for Respondent
By: Michael Kozek, Esq.
150 Broadway, 19 Floor
New York, New York 10038
212.964.1822