Opinion
Index No. 150303/2022
07-29-2022
Tracy Tong, Plaintiff, v. Eleazor Benito, GABRIELA ORTIZ, JOHN DOE, and JANE DOE, Defendants.
Counsel for the Plaintiff, Tracy Tong: Richard Batelman, Esq. Law Offices of Richard Batelman Counsel for Defendant, Eleazor Benito, Gabriela Ortiz, et al: Teresa Katherine Defonso, Esq. The Legal Aid Society
Unpublished Opinion
Counsel for the Plaintiff, Tracy Tong:
Richard Batelman, Esq.
Law Offices of Richard Batelman
Counsel for Defendant, Eleazor Benito, Gabriela Ortiz, et al:
Teresa Katherine Defonso, Esq.
The Legal Aid Society
HON. RONALD CASTORINA, JR. JUSTICE OF THE SUPREME COURT
The following papers listed on NYSCEF numbered 36-63 were read and considered on this motion. The parties orally argued the identical issues on Motion Sequence #001, on June 13, 2022. The parties agreed to withdraw motion sequence #001 due to procedural deficiencies, and refile this instant motion, under motion sequence #002. As a result of the prior oral argument on the identical issues before the Court, the parties requested, via "Stipulation to Submit Motion" dated July 18, 2022, that the Court take motion sequence #002 on submission, without further oral argument. The parties requested (and the court acquiesced) that the court rely upon the arguments made on June 13, 2022, in addition to the papers filed under motion sequence #002 for consideration on this Memorandum Decision and Order.
I. Statement of Facts
Plaintiff Tracy Tong is the owner of the real property and unit commonly known as 98 Ann Street, 2nd Floor, Staten Island, New York 10302. The building is a two-family house situated in neighborhood of Port Richmond . The Defendants occupy the unit as month-to-month tenants, pursuant to a lease agreement which expired by its own terms on January 31, 2019. Plaintiff claims to have terminated the Defendants tenancy by serving a 90-day Notice of Termination in or about March 2020. Defendants failed to vacate the premises and have not paid the Plaintiff rent since September 2019. The original Lease Agreement recites a monthly rental value of $2,100.00 per month. Plaintiff claims that Defendants are in arrears and owing to the Plaintiff the sum of $73,500.00 up to the time of this motion (July 2022). Defendant claims that they suffered a loss of household income because of the COVID-19 pandemic and were unable to pay the rent for the subject premises. Defendants were recipients of public assistance from the Human Resources Administration (HRA) during this period, and that HRA issued a total of 17 checks made payable to Plaintiff in the total sum of $3,600.00. The underlying action seeks inter alia "a writ of ejectment directing the NYC Sheriff to remove Defendants from the premises forthwith."
The New York City Department of Buildings lists the property as a B2-2 Family Dwelling. There is no Certificate of Occupancy for the building, as the building was constructed in 1915. If a building was constructed before 1938 and has had no change in use or additions to the property, it may not have a C of O according to the NYC Department of Buildings (see https://www1.nyc.gov/nycbusiness/description/certificate-of-occupancy).
Defendants claim to have filed for Emergency Rental Assistance Program (ERAP) funds ; however, the Plaintiff has no present desire to receive the funds and reinstate the tenancy. Plaintiff claims to be unable to satisfy her mortgage payments based on the loss of rent.
The application was for 12 months of arrears and 3 months of prospective rent [see Defendant's Affirmation in Opposition, paragraph 5]
Plaintiff seeks the following relief in connection with Motion Sequence #002, to wit: [a] Compelling Defendants Eleazor Benito and Gabriela Ortiz to pay Plaintiff $73,500.00 representing unpaid monthly use and occupancy due to the Plaintiff, at the last leasehold rate of $2,100.00 per month from September 2019 through July 2022; [b] Compelling Defendants Eleazor Benito and Gabriela Ortiz to pay Plaintiff ongoing use and occupancy, pendente lite, at the rate of $2,100.00 per month commencing August 1, 2022 until such time as this action is resolved; and [c] For such other and further relief as the Court deems just and proper. The Defendants oppose, and allege that the motion should be denied, as they allege a Stay of the proceeding based upon Defendant's application for ERAP assistance. In addition, Defendants allege in the alternative that [a] there is an identical cause of action currently pending in the New York City Housing Court, Richmond County , and that as such, this matter ought to be dismissed for its duplicative claims, [b] that the Court should deny the motion because of Plaintiff's failure to annex a certified copy of the deed and Certificate of Occupancy, and [c] that the amount alleged to be due is incorrect or cannot reliably be discerned from the information provided.
A Holdover Petition bearing Index No.: L & T 050594/2020 was discontinued by the Petitioner in May 2022. Although Defendant claims that the Stipulation of Discontinuance filed by the Plaintiff is a nullity, no efforts have been made by Defendant to rehabilitate the action before the Housing Part of the NYC Civil Court, and the matter remains discontinued according to the Clerk's office of the Civil Court, Richmond County.
II. Discussion
A. ERAP and the Statutory Stay
It is well settled authority in New York that a court may grant relief on a motion which was not specifically requested as long as it is not dramatically unlike the relief sought, the proof supports it and the court is satisfied that no one is prejudiced by it (Shaw v RPA Assoc, LLC., 75 A.D.2d 634; HCE Assoc v. 3000 Watermill Lane Realty Corp, 173 A.D.2d 774; see also Gefferner v. Mercy Med. Center, 83 A.D.3d 998 ). Here, determining the outcome of the the motion necessarily requires that the court resolve whether to lift the statutory stay.
Where a landlord or owner of a non-regulated tenancy moves to lift the statutory stay (electing not to participate in ERAP, and to forego any ERAP monies), the court must determine whether such blanket continuance furthers the legislative or policy goals of ERAP, or conversely, whether it serves no end other than to prolong a case from being heard on its merits, prejudicing a landlord or owner.
Chapter 417, Laws of 2021, Part A, §4, amending §8 of subpart A of part BB of Chapter 56 of the New York State Laws of 2021.
ERAP only proves to be helpful in those circumstances where the landlord's participation and acceptance of its payment creates, prolongs, or maintains a tenancy. Here, this is not the case as evidenced by Plaintiff's motion and supporting papers. Some courts have vacated ERAP stays where "an ERAP application has no relevance to the resolution of the dispute before the court." See, Silverstein v Huebner 72 Misc.3d 1212 (A) [Civ Ct Kings Co 2021] and Kelly v Doe, 75 Misc.3d 197 [Civ Ct Kings Co 2022]. Others have relied on the legal principal of futility in Actie v Gregory (2022 NY Slip Op 501117[U] [Civ. Ct. Kings Co. 2022]) and 2986 Briggs LLC v Evans (74 Misc.3d 1224 (A) [Civ Ct Bronx Co 2022]). In Actie, the ERAP stay was vacated in the context of a holdover where the landlord sought possession of an apartment for his own personal use in a building with fewer than four units. Since the landlord in Actie elected not to accept ERAP money, approval of the pending application would not have resulted in the protection of, or the creation of a tenancy. Additionally, it is observed that in some instances such as in Actie, a landlord may properly choose to accept monies under the ERAP program while continuing to seek possession. Here, Plaintiff has sworn to the fact that they will not accept ERAP money-albeit without providing a specific reason as to why, but this is not required as the proceeding requires no grounds other than the service of a proper termination notice, and the outcome is the same. As there is currently no showing of a tenancy that may be imposed upon Plaintiff, they may elect to not participate in the ERAP program. So long as they are willing to accept the financial repercussions of declining ERAP, Plaintiff is at liberty to decline, and the maintenance of the stay under these facts would be prejudicial to the owner/landlord and a windfall to the Defendants, serving no discernible legal purpose.
A Plaintiff who has submitted an affidavit indicating that they are willing to forego the ERAP monies in favor of possession is presumably acting in good faith until it is demonstrated that they are not. It is further noted that the only question decided in this opinion is whether to maintain or vacate the automatic ERAP stay. Defendant continues to have significant process rights. When and if the matter reaches a possessory judgment, the Court continues to retain discretionary stay powers pursuant to RPAPL 753. The sole issue here is whether the ERAP stay in this proceeding must be continued and that question is answered in the negative.
B. Discontinuance of the Housing Court Holdover Petition
Defendants claim that there is an identical matter currently pending, however stayed, before the Housing Part of the Richmond County Civil Court bearing Index No.: L & T 50594/2020 is not accurate, according to the account of the Civil Court Clerk's office and the e-courts designation marked as "Disposed". Although it is true that a motion to dismiss was filed, and that the matter was stayed, Petitioner in that action (Plaintiff herein) filed a Notice of Discontinuance on NYSCEF on May 11, 2022, regarding the holdover proceeding. This court investigated the status of the action by contacting the Clerk's office of the Richmond County Civil Court. According to the Clerk, and despite Defendant's arguments to the contrary, the matter has been deemed discontinued by the court. Defendant's desire to litigate whether the Notice of Discontinuance in ineffective, and/or a nullity, is within the jurisdiction of the Housing Part. This Court knows of no motion or action by Defendant seeking to rehabilitate the Holdover matter, and therefore, at this time, this Court must consider the action discontinued. There are no additional facts or circumstances proffered to this Court by either party regarding any change in status to the holdover matter. Therefore, the arguments made by Defendant as to the Notice of Discontinuance are moot and are not considered on this motion.
C. Proof of Ownership and Certificate of Occupancy
Defendant's argument that the Plaintiff failed to submit either a certified deed or certification by counsel pursuant to CPLR §2105 is without merit. Defendant makes a legally unsupported claim that since the deed attached to the moving papers is not in admissible form (i.e not "certified") that this court should deny the relief sought by Plaintiff. Defendant offers no legal authority for such assertion. There is no dispute that a copy of the deed for the premises is annexed to the motion. Moreover, in the absence of any evidence or allegation to the contrary, this court deems the copy of the deed annexed to an Attorney Affirmation to be sufficient for the purposes of Plaintiff's required burden of proof for entitlement to use and occupancy of the premises. Additionally, and not solely determinative of the issue, this court takes judicial notice of Plaintiff's ownership as evidenced by Deed, which is readily accessible, without cost, from the Richmond County Clerk's website (La Sonde v. Seabrook (89 A.D.3d 132, 137, [1st Dept 2011]) (holding that "[t]his Court has discretion to take judicial notice of material derived from official government websites such as those generated by the Richmond County Clerk).
The landlord's alleged failure to obtain a Certificate of Occupancy, covering Plaintiff's alleged use of the premises, is no defense to an action for ejectment, thus Defendant's argument is moot. (See JZ & AE Realty Corp. v Putnam, 258 A.D.2d 442 [2d Dept 1999]; 99 Commercial Street Inc v Llewelyn, 240 A.D.2d 481 [2d Dept 1997]; see also Yuko Nii v Quinn, 195 Misc.2d 821, 822 [App Term 2d Dept 2003]). The New York City Department of Buildings lists the property as a B2-2 Family Dwelling. There is no Certificate of Occupancy for the building, as the building was constructed in 1915. If a building was constructed before 1938 and has had no change in use or additions to the property, it may not have a Certificate of Occupancy according to the NYC Department of Buildings (see https://www1.nyc.gov/nycbusiness/description/certificate-of-occupancy).
D. Conforming the parties agreed upon facts to the proof
Plaintiff's Complaint seeks a judgment against Defendants for use and occupancy of the subject premises in the amount of $950.00 per month from July 2020 to the date of the Complaint (February 16, 2022) and ongoing use and occupancy in the amount of $950.00 per month. Plaintiff's motion seeks for Defendant to pay to Plaintiff the sum of $2,100.00 per month from July 2020 through the filing of this instant motion, and ongoing use and occupancy pendente lite in the sum of $2,100.00 per month. Defendants assert, without any legal support, that the court cannot grant relief by way of motion that is not sought in the underlying Complaint. Plaintiff attaches a copy of the lease agreement by and between the parties. The lease agreement recites a monthly rental value of $2,100.00. Defendants make no argument in opposition to the veracity of the lease agreement attached. The lease agreement was executed by the parties as evidenced by the signatures that appear at the end of the document. Defendants do not deny that the monthly rental value of the lease was $2,100.00 in their opposition to this motion. The complete absence of any notice in a complaint stating the 'object of an action', the relief sought, and the sum of money for which judgment may be taken in case of default is a jurisdictional defect and that defect renders a complaint insufficient, not only for purposes of taking default judgment but also to obtain jurisdiction over a defendant (McKinney's CPLR 205(a), 304, 305(b) ). There is no question that the Plaintiff's Complaint seeks not only the ejectment of Defendants from the premises, but the rental value for the use and occupancy of the premises by Defendants for a stated duration of time. This motion does not seek default, and the Defendants have had a full and complete opportunity to be heard. Here, the Defendants had an opportunity when presented with the motion to oppose the introduction of the lease, or the monthly rental value stated therein. The Defendant has failed to oppose either the admissibility of the lease, or the stated monthly rental value of $2,100.00 pursuant to the document which appears to have been fully executed by the parties. Although Plaintiff's Complaint erroneously states a differing amount, it is not fatal to her claim, as the plain language of the complaint provided notice of a claim for the rental value of the premises and because the actual and agreed upon rental value mirrors that which is within the lease agreement that the parties had actual knowledge thereof. Moreover, annexed to the motion is a copy of the fully executed lease agreement between the parties. The Defendant has had an opportunity to examine the document. The Plaintiff relies upon same as proof of the monthly rental value. Defendant has not alleged at anytime that the rental value that is within the lease agreement is inaccurate in any way.
The Court has authority to sua sponte amend a claim to conform to the evidence presented on a motion in the absence of any prejudice to the defendant (see Cave v. Kollar, 2 A.D.3d 386 [2d Dept. 2003]; River Val Assoc. v. Consolidated Rail Corp., 182 A.D.2d 974, 976 [3d Dept 1992]; Aughtry v State of New York, UID No. 2019-029-033 [Ct Cl, Mignano, J., May 22, 2019]; cf. Broadway Warehouse Co v Buffalo Barn Bd., LLC, 143 A.D.3d 1238, 1240-1241 [4th Dept. 2016] [declining to amend the complaint sua sponte on the ground that the defendants would be prejudiced by the amendment, the addition of new theories of recovery]). Moreover, Defendants' own Attorney Affirmation states that "The [ERAP] amount applied for is $31,500.00 -$2,100.00 times 15 months" (See NYSCEF Doc No.: 45 Defendant's Affirmation in Opposition, Para. 33). In essence, Defendants concur and confirm that the monthly rental value of the leasehold is $2,100.00. The court concludes that Defendants would not be prejudiced by amending the Complaint sua sponte to relieve Plaintiff of erroneously stating the value of the monthly rate of the tenancy as both Plaintiff and Defendant clearly are in accord that said rental value was indeed $2,100.00 per month (see e.g. Perrin v. McKenzie, 266 A.D.2d 269, 270 [2d Dept 1999]). Therefore, the amount alleged in the Complaint is clearly erroneous, and this court sua sponte amends the Complaint to conform to the evidence presented by both Plaintiff and Defendants, correcting the value of the leasehold from $950.00 per month to $2,100.00 per month.
E. Calculation of sums due to Plaintiff
A review of the sums due from the Defendants to Plaintiff yields the following: The court has determined that Plaintiff is due rent from September 2019 through July 2022 (35 months) in the sum of $2,100.00 per month, minus credits (HRA Payments by check directly to the landlord) in the sum of $3,600.00, for a total of $69,900.00 (Sixty-nine Thousand Nine Hundred Dollars and No Cents).
III. Conclusion
Therefore, having found cause, the court lifts the ERAP stay, and enters judgment against Defendants for unpaid use and occupancy in favor of Plaintiff in the sum of $69,900.00 (Sixty-nine Thousand Nine Hundred Dollars and No Cents).
A. Decretal Paragraphs
Based upon the foregoing it is hereby:
ORDERED, that the ERAP stay is lifted, and it is further, ORDERED, that the Complaint is amended to the extent that the rental value is $2,100.00 per month, and it is further, ORDERED, that the Clerk of the Court shall enter judgment against Defendants Eleazor Benito and Gabriela Ortiz in favor of the Plaintiff Tracy Tong, in the sum of $69,900.00 (Sixty-nine Thousand Nine Hundred Dollars and No Cents), and it is hereby, ORDERED, that the Defendants Eleazor Benito and Gabriela Ortiz shall pay plaintiff ongoing use and occupancy, pendente lite, at the rate of $2,100.00 per month, commencing August 1, 2022.
The remainder of the parties' contentions, if any, are either without merit or need not be addressed given the conclusions reached above.
This shall constitute the Decision and Order of the court.