Opinion
Index No. 523059/2021
11-27-2023
ROCK-PARK 94 LLC Plaintiff, v. CAMBA, INC. and JEANNA THELWELL, Defendants.
Unpublished Opinion
DECISION, ORDER &JUDGMENT
HON. FRANCOIS A. RIVERA JUDGE
By notice of motion, under motion sequence one, filed on December 29, 2022, defendant Jeanna Thelwell sought an order and judgment: (1) pursuant to CPLR 602, consolidating several civil actions involving common questions of fact and law; and (2) pursuant to CPLR 3211 (a) (7) dismissing plaintiff Rock-Park 94 LLC claims as asserted against defendant Jeanna Thelwell. This motion was opposed by the plaintiff Rock-Park 94 LLC.
The movant seeks to consolidate the following actions: 55 Lenox LLC v CAMBA Inc. et al., 523050/2021;80Lenox LLC v CAMBA Inc. et al., 523051/2021; 80 Lenox LLC v CAMBA Inc. et al., 523052/2021; West Sterling 131 LLC v CAMBA Inc. et al., 523053/2021; West Sterling 131 LLC v CAMBA Inc. et al., 523055/2021; West Sterling 131 LLC v CAMBA Inc. et al., 523056/2021; RP82 LLC v CAMBA Inc. et al., 523057/2021; Rock-Park 94 LLC v CAMBA Inc. et al., 532058/2021; Rock-Park 94 LLC v CAMBA Inc. et al., 523059/2021; and Rock-Park 94 LLC v CAMBA Inc. et al., 523061/2021.
NYSCEF document numbers 59 through and including 74 and number 82 were considered on motion sequence one.
By notice of motion, under motion sequence two, filed on December 30, 2022, defendant CAMB A, Inc. sought an order: (1) pursuant to CPLR 602, consolidating a number of civil actions involving common questions of fact and law (see fn 1); and (2) pursuant to CPLR 3211 (a) (7) dismissing the complaint of plaintiff Rock-Park 94 LLC. This motion was opposed by plaintiff Rock-Park 94 LLC.
NYSCEF document numbers 20 through and including 58, numbers 75 through and j including 81, and numbers 66 and 68 were considered on motion sequence two.
BACKGROUND
Rock-Park 94 LLC (hereinafter plaintiff) filed the instant complaint against CAMBA, Inc. (hereinafter CAMBA) and John Doe on September 9, 2021. CAMBA is a nonprofit that rents an apartment to provide supportive housing. The complaint contained four causes of action: a request for a declaratory judgment that the premises were not rent stabilized; a request for a judgment of ejectment; a request for a judgment for use and occupancy; and a request for a judgment for attorneys' fees against CAMBA.
CAMBA answered the complaint on October 15, 2021. On January 14, 2022, the parties filed a stipulation to, inter alia, amend the caption to include occupant Jeanna Thelwell (hereinafter Thelwell) as a defendant. Thelwell answered the complaint on January 14,2022.
The plaintiff replied to CAMBA and Thelwell's counterclaims on November 4, 2021, i and June 17, 2022, respectively.
MOTION PAPERS
In December 2022, defendants each moved to consolidate this action with nine other related actions seeking identical relief against CAMBA and the apartment occupants with respect to nine other apartments and to dismiss each complaint. The motion filed by CAMBA largely replicated the arguments in the motion filed by Thelwell. Thelwell's motion papers, under motion sequence one, include an affirmation of counsel, memoranda of law, and 26 annexed exhibits labeled A through Z and eight annexed exhibits labeled AA through HH, which include the pleadings and notices of termination in each of the ten cases.
The captions for the ten cases are as follows: 55 Lenox LLC v CAMBA, Inc. and Deydalia Quijada, 523050/2021; Rock-Park 94 LLC v CAMBA, Inc. and Towanda Daniels, 523051/2021; Rock-Park 94 LLC v CAMBA, Inc. and Jeanna Thelwell, 523052/21; West Sterling 131 LLC v CAMBA, Inc. and John Doe 523053/2021; West Sterling 131 LLC v CAMBA, Inc. and Que Jackson-Munoz, 523055/2021; West Sterling 131 LLC v CAMBA, Inc. and Melissa Watts, 523056/2021; RP82 LLC v CAMBA, Inc. and Jaclyn Vazquez, 523057/2021; Rock-Park 94 LLC v CAMBA, Inc. and John Doe, 523058/2021; Rock-Park 94 LLC v CAMBA, Inc. and Jeanna Thelwell, 523059/2021; and Rock-Park 94 LLC v CAMBA, Inc. and John Doe, 523061/2021. The Legal Aid Society appeared as counsel in the seven cases where the occupants were added as defendants and filed motions raising identical arguments on behalf of the occupants in these seven cases. CAMBA also filed identical motions in all ten cases.
The plaintiffs opposition papers to Thelwell's motion papers include an affirmation of counsel, a memorandum of law, and four annexed exhibits including a copy of Rent Stabilization Code Section 2520.11, the summons, complaint, and answers filed in the instant action.
CAMBA's motion papers, under motion sequence two, include an affirmation of counsel, a memorandum of law, and four annexed exhibits labeled A through D which include the pleadings and notices of termination in each of the ten cases.
The plaintiff's opposition papers to CAMBA's papers include an affirmation of counsel, a memorandum of law, and four annexed exhibits including a copy of Rent Stabilization Code Section 2520.11, the summons, complaint, and answers filed in the instant action.
The defendants Thelwell and CAMBA each filed a memorandum of law in reply to the plaintiffs opposition to their respective motions.
At oral argument, the Court indicated that it would reserve decision on that portion of the motions seeking consolidation until after it had rendered decision on the motions to dismiss. The parties assented to this proposal.
LAW AND APPLICATION
Defendants move to dismiss the complaint pursuant to CPLR 3211 (a) (7). "When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action" (Bokhour v GTI Retail Holdings, Inc., 94 A.D.3d 682, 682 [2d Dept 2012]). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id.). "However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference" (Kupersmith v Winged Foot Golf Club, Inc., 38 A.D.3d 847, 847 [2d Dept 2007], citing McKenzie v Meridian Capital Group, LLC, 35 A.D.3d 676 [2d Dept 2006]).
Apartments in New York City in buildings constructed before 1974 are subject to rent stabilization unless an exemption applies (see Rent Stabilization Code [9 NYCRR] § 2520.11). Rent stabilized tenancies may only be terminated by following the procedures set out in the Rent Stabilization Code (see 9 NYCRR § 2524.2). The termination notice must state the ground under section 2524.3 or 2524.4 of the Rent Stabilization Code, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession" (9 NYCRR § 2524.2 [b]). The failure to serve a proper termination notice is a basis for dismissal of the landlord's claim for possession (see Matter of Gracecor Realty Co. v Hargrove, 90 N.Y.2d 350, 354 [1997]; Commercial Hotel, Inc. v White, 194 Mise 2d 26 [App Term, 2d Dept 2002]).
The plaintiff has alleged two bases for exemption: RSC § 2520.11 (f) and that CAMBA is a corporation. Neither is a valid basis for exemption. RSC § 2520.11 (f) provides an exemption from rent stabilization as between certain nonprofit institutions and individuals affiliated with the nonprofit. It does not provide an exemption when a nonprofit sign a lease with a for-profit landlord (2363 ACP Pineapple, LLC v Iris House, Inc., 55 Mise 3d 7 [App Term, 1st Dept 2017], citing 520 E. 81st St. Assoc, v Lenox Hill Hosp., 38 N.Y.2d 525, 528 [1976]). These cases and others also make clear that a corporation can hold a rent-stabilized tenancy.
The plaintiff argues that there is a factual allegation that prevents dismissal, due to CAM BA's acknowledgement in the lease that the apartment was exempt from rent stabilization. The plaintiffs complaint alleges that the subject property is exempt from the rent stabilization law because the subject lease of the property contained language expressing the parties' waiver from the rent stabilization law. Facts admitted by a party's pleadings constitute formal judicial admissions (Zegarowicz v Ripatti, 77 A.D.3d 650, 653 [2d Dept. 2010J, citing Falkowski v. 81 & 3 of Watertown, Inc., 288 A.D.2d 890, 891 [4th Dept. 2001]; Jerome Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed. 1995]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (Zegarowicz, 77 A.D.3d at 653, citing Coffin v Grand Rapids Hydraulic Co., 136 NY 655 [1893]). It is therefore a conclusive fact, that the plaintiff was relying on a waiver clause in the lease agreement to render the subject property exempt from the rent stabilization law. In other words, there is no issue of fact on the plaintiffs reliance of this lease provision in support of its contention that the rent stabilization law does not apply. However, this waiver language in the subject lease is null and void, as it is contrary to law and public policy to waive rights under rent stabilization (9 NYCRR § 2520.13; Drucker v Mauro, 30 A.D.3d 37, 39 [1st Dept 2006]). The legal conclusion that plaintiff asserts is not entitled to any favorable inference under CPLR 3211 (a)(7).
The plaintiffs claimed exemptions are invalid; the apartment is subject to rent stabilization. Therefore, the plaintiffs claim for ejectment is dismissed because it has failed to serve the notice required by the Rent Stabilization Code before bringing such a claim (Com. Hotel, Inc. v. White, 194 Mise. 2d 26, 27 [App. Term 2002]).
Similarly, the plaintiff is not entitled to a declaratory judgment that the apartment is not subject to rent stabilization, because it is subject to rent stabilization. Furthermore, because plaintiffs claim for ejectment are hereby dismissed, it cannot prevail on its claims for use and occupancy or attorneys' fees, which are ancillary to the claim for ejectment. Therefore, those claims are dismissed as well.
CONCLUSION
The branch of defendant Jeanna Thelwell's motion for an order and judgment pursuant to CPLR 3211 (a) (7) dismissing plaintiff Rock-Park 94 LLC claims as asserted against defendant Jeanna Thelwell is granted.
Accordingly, the branch of defendant Jeanna Thelwell's motion for an order pursuant to CPLR 602 to consolidate several civil actions involving common questions of fact and law is denied as moot.
The branch of defendant CAMB A Inc.'s motion for an order pursuant to CPLR 3211 (a) (7) to dismiss the complaint of plaintiff Rock*Park 94 LLC is granted.
Accordingly, the branch of defendant CAMBA Inc.'s motion for an order pursuant to CPLR 602 to consolidate several civil actions involving common questions of fact and law is denied as moot.
It is the Decision, Order and Judgment of this Court that the action is dismissed. J.S.C.