Opinion
900619/2017
06-26-2017
Royal Terrace Associates LP, Petitioner v. Bhagwandai Singh "JANE DOE" and "JOHN DOE", Respondent
ALLISON HEILBRAUN, ESQ. Attorneys for Petitioner 73 Market Street, Suite 376 Yonkers, NY 10710 914.237.3348 BHAGWANDAI SINGH Respondent Pro Se
ALLISON HEILBRAUN, ESQ. Attorneys for Petitioner 73 Market Street, Suite 376 Yonkers, NY 10710 914.237.3348 BHAGWANDAI SINGH Respondent Pro Se Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by ROYAL TERRACE ASSOCIATES LP(Petitioner) against BHAGWANDAI SINGH (Respondent) seeking to recover possession of Parking Space #1, at 2020 Grand Concourse, Bronx, NY 10471 (Subject Premises) based on the allegations that Respondent is no longer entitled to possession of the space.
PROCEDURAL HISTORY
Petitioner issued a thirty day notice of termination (Notice) dated February 2, 2017. The notice alleges that: Respondent has no valid lease for the parking space; and the car parked there is not registered, has no valid inspection and does not possess license plates; and the car is not "road worthy" but is being used as a storage unit. The Notice further asserts that the demised premises are not subject to the Rent Stabilization Law or Rent Control Law by reason that they are "commercial in nature and contained within a parking garage."
The Notice was served by personal delivery on February 11, 2017 and demanded Respondent surrender possession on or before March 31, 2017. The petition is dated April 3, 2017, and the proceeding was initially before the court on April 20, 2017. On that date, the parties entered into a stipulation adjourning the proceeding to May 16, 2017, to afford Respondent an opportunity to obtain counsel. The proceeding was adjourned a second time, pursuant to a stipulation, which set a trial for June 26, 2017.
No answer, either written or oral, was interposed by Respondent, so a general denial is deemed interposed.
On June 26, 2017, the trial took place and the court reserved decision. For the reasons stated below, the court finds that Petitioner failed to prove a prima facie entitlement to a judgment of possession and the proceeding is dismissed. PRIOR RELATED PROCEEDINGS
The court takes judicial notice of two prior related proceedings. The first was brought under index Number 901819/2010, and was a holdover proceeding brought to recover possession of Respondent's parking space. The file for that proceeding is in archives and not available to the court for review. However, from the computer case summary, the court can determine that it sought to recover Space #1 at the Subject Building and that the court awarded Petitioner a judgment of possession after trial, along with a money judgment for $750.
Respondent appealed the trial decision and the Appellate Term reversed the trial court's award of a judgment [Royal Terrace Associates LP v Singh 39 Misc 3d 135(A) App. Term, 2013) also submitted by Respondent as an trial exhibit E-1]. The Appellate Term held:
This "commercial" holdover proceeding, brought upon the alleged termination of tenant's purported month-to-month garage lease agreement, seeks to recover possession of a garage space situated in the building premises in which tenant resides. While the trial evidence, including several provisions of the garage lease itself, showed that there is at least some linkage between the rental of the garage space and tenant's residential apartment, the record as a whole sheds little light on the extent of that connection. In this regard, the record is bereft of evidence bearing on such issues as the rent regulatory status of tenant's apartment and the nature and chronology of the building owner's provision of garage service, absent which an informed determination as to whether the landlord's garage facility constituted an "ancillary service" under rent stabilization (see Rent Stabilization Code [9 NYCRR] § 2520.6[r][3] ) is not possible. Resolution of the statutory coverage issue necessarily affects the jurisdiction of the court to grant petitioner-landlord the possessory relief demanded (see Rent Stabilization Code [9 NYCRR § 2522.4[e]; see e.g. Matter of 110—15 71st Rd. Assoc., LLC v. New York State Div. of Hous. & Community Renewal, 54 AD3d 679 [2008], lv denied 12 NY3d 712 [2009] ), as well as tenant's retaliatory eviction defense (see Real Property Law § 223—b), a defense which, although found by the trial court to be of colorable factual merit, was ultimately rejected based on the putative commercial nature of the garage rental. Given the incomplete state of the record, and the trial court's own concerns expressed on the record
as to whether the garage rental involved residential or "commercial space," fairness dictates that the matter be tried anew.
The case summary does not indicate what if anything happened after the appeal. There is no indication as to whether a new trial ever took place or whether that proceeding was ultimately discontinued. There was no evidence offered by either party at the trial herein on that point.
Another summary proceeding was commenced by Petitioner against Respondent for nonpayment of the parking space, under Index Number 901746/16. The court has obtained the file from that proceeding and takes judicial notice of its contents. In that case, Petitioner claimed that Respondent was in occupancy of Parking Space 152. The petition sought rent arrears for the space for the year of 2016 in the amount of $137.96 per month. That proceeding was discontinued without prejudice, on December 21, 2016, pursuant to a stipulation which provided that Respondent had received an updated rent history from Petitioner and that the parties agreed to meet and resolve any disputed sums (Ex E-2).
In both these prior proceedings as well as the case at bar, Petitioner was represented by the same attorney.
FINDINGS OF FACT
Petitioner is the owner of the subject building, pursuant to a deed dated September 28, 1995 (Ex 5). The subject building is a multiple dwelling (Ex 6).
Petitioner submitted two "agreements" between the parties pertaining to parking. They are terse agreements and do little to clarify the issues raised at trial. The first was executed on September 27, 2006 and states only:
AGREEMENT BETWEEN ROYAL TERRACE ASSOC. AS LESSOR AND BHAGWANDAI SINGH AS LESSEE FOR THE RENT OF GARAGE SPACE AT 2020 GRAND CONCOURSE, BRONX, NY 10457.The second agreement (Ex P2) appears to have been executed by Respondent on May 24, 2007 and states:
ROYAL TERRACE ASSOC. AGREES TO RENT ONE GARAGE SPACE TO B. SINGH FOR THE PERIOD OF ONE YEAR, 7/1/06-6/30/07. FOR THE RENTAL AMOUNT OF $102. 07/MONTH PLUS NY STATE SALES TAX. (10. 375%)
THIS CHARGE IS IN ADDITION TO AND SEPARATE FROM THE RENT PAID FOR THE APT. 6B LOCATED AT THE SAME ADDRESS.
AGREEMENT BETWEEN ROYAL TERRACE ASSOC. AS LESSOR AND BHAGWANDAI SINGH AS LESSEE FOR THE RENT OF GARAGE SPACE AT 2020 GRAND CONCOURSE, BRONX, NY 10457.
ROYAL TERRACE ASSOC. AGREES TO RENT ONE GARAGE SPACE TO BHAGWANDAI SINGH, FOR THE PERIOD OF TWO YEARS, 7/1/07-6/30/09. FOR THE RENTAL AMOUNT OF $109. 47 A MONTH PLUS NY STATE SALES TAX. (10. 38%) State Sales Tax $11. 35
Neither agreement identifies which space was leased to Respondent. No other executed agreement pertaining to parking was submitted into evidence by either party. No lease agreement for any apartment in the building was offered into evidence by either party, but the court assumes based on references that Respondent is the tenant of record for Apartment 6B in the Subject Building.
While the petition asserts that the Subject Premises is exempt from regulation no evidence or testimony was offered by Petitioner on this point. Nor was any evidence offered as to whether Respondent's tenancy in apartment 6B is subject to rent regulation.
No evidence was offered by Petitioner by Petitioner as to which parking space is being occupied by Respondent. As noted above, in some litigation Petitioner has asserted it is Parking Space 1, such as in the case at bar, and in the prior holdover proceeding. In other litigation, Petitioner asserted it is Parking Space number 152, such as in the prior nonpayment proceeding. Neither Respondent nor Petitioner's witness, Ms. Halpern testified as to which space is occupied by Respondent.
Even the affidavit of service is not helpful as in this case the pleadings and predicate notice were served at Apartment 6B and not on the premises sought to be recovered.
Petitioner did submit into evidence an offer to lease parking space 1which was sent in or around July 2009, but no executed contract was offered into evidence and it is undisputed that Respondent never signed the document submitted (Ex P 3).
Respondent did submit into evidence payments she tendered for the parking spot in March -June 2017. All the payments were returned by Petitioner. All payments contain a reference that they were submitted for unit or space number 152 (Ex D).
Elysa Halpern testified for Petitioner. Ms. Halpern testified that she is a property manager for the Subject Building. The multiple dwelling registration also seems to indicate that she is an owner. Ms. Halpern testified that Respondent's car has no plates, no valid registration or insurance and has basically been used for storage for at least the past four years.
Respondent testified that she has been in possession of the parking space for 17 years, and that up until a certain point the charge for the parking was included as part of her rent. Respondent acknowledges that she has not moved the car that is in the space since approximately 2013. Respondent acknowledged that she sometimes puts items in the car to be picked up by others. Respondent states she does plan to get a new car eventually for the spot.
Respondent testified that she occupied the spot without incident, until approximately 2010, when Ms. Halpern became involved in management. Respondent alleged since that time Petitioner has created litigation concerning the spot in retaliation for complaints she has made about conditions in the building. Respondent denies that the space is rented for commercial use.
DISCUSSION
Petitioner failed to establish a prima facie case at trial
RPAPL§ 741(3) states that the petition in a summary proceeding must describe the premises from which removal is sought. The description of the premises must be accurate enough to allow the marshal, when executing the warrant of eviction, to locate the premises without additional information (City of New York v. Mortel, 156 Misc 2d 305, [Civ.Ct., Kings County 1992], aff'd 161 Misc 2d 681, 616 N.Y.S.2d 683 [App. Term 2d Dept.1994] ). Part of Petitioner's burden of proof was to establish at trial which space Respondent is in occupancy of and that this is the space sought to be recovered. Petitioner offered no evidence on the description of the space. Ms. Halpern did not testify as to which space was occupied by Respondent, nor did Petitioner establish this through documentary evidence. If there was not conflicting information on this point, perhaps this defect could be overlooked, but after the trial the court can not determine whether Respondent is in occupancy of Space 1 or Space 152.
This failure of proof alone is sufficient to warrant dismissal of the petition.
Petitioner failed to address the issues raised by the Appellate Term in the prior proceeding
The provision of a parking space can be considered an ancillary service for rent stabilized tenants where parking is provided in connection with the leasing or use of their apartment (110-15 71st Road Associates, LLC v DHCR 54 AD3d 679).
As noted above, the Appellate Term reversed the last judgment of possession obtained by Petitioner in a holdover proceeding. In that case, the Appellate Term noted that rental of the parking space appeared to be in connection with the rental of Respondent's apartment and that the court needed additional information to make a determination as to whether the premises is exempt from rent regulation as alleged in the petition. Specifically, the Appellate Term held that the regulatory status of Respondent's tenancy in her apartment and "the nature and chronology of the building owner's provision of garage service" needed to be established at trial.
Here, Petitioner offered no explanation to the court of what happened in the prior proceeding after the remand by Appellate Term (ie is there a prior proceeding pending for identical relief) nor did Petitioner offer any evidence on the issues raised by the Appellate Term. In fact, the only way the court learned of the prior proceeding is when the pro se Respondent offered the Appellate Term decision into evidence. Respondent's uncontested testimony is that the parking space was provided to her 17 years ago, in connection with her lease of her apartment, and that it was originally included as one charge with her rent.
CONCLUSION
In conclusion, the proceeding is dismissed after trial based on the court's finding that Petitioner failed to establish a prima facie case. Petitioner failed to establish that Respondent is in occupancy of Parking Space 1, the space sought to be recovered, and Petitioner failed to provide evidence as to the regulatory status of Respondent's tenancy.
This constitutes the decision and order of this court. Dated: June 26, 2017 Bronx, NY _________________________ Hon. Sabrina B. Kraus JCC