Opinion
Index No. 523053/2021
03-11-2024
WEST STERLING 131 LLC Plaintiff, v. CAMBA, INC. and JOHN DOE, their heirs, devisees and personal representatives and his, their or any of their successors in right, title and interest, the name of the last defendant being unknown to the Plaintiff, the person or Party intended to be any person in possession of or claiming interest in the property described in the Complaint, and whose interests may not have been protected under applicable emergency rent laws Defendants.
Unpublished Opinion
DECISION, ORDER & JUDGMENT
HON. FRANCOIS A. RIVERA
By notice of motion, under motion sequence one, filed on December 30, 2022, defendant CAMBA, Inc. sought an order: (1) pursuant to CPLR 602, consolidating several civil actions involving common questions of fact and law (see in 1); and (2) pursuant to CPLR 3211 (a) (7) dismissing the complaint of West Sterling 131 LLC (hereinafter the plaintiff). This motion was opposed by the plaintiff.
NYSCEF document numbers 14 through and including 27 were considered in deciding the motion.
BACKGROUND
Plaintiff filed the instant complaint against CAMBA, Inc. (hereinafter CAMBA) and John Doe on September 9,2021. CAMBA is a nonprofit that rents apartments to provide: supportive housing. The complaint contained lour 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.
GAMBA answered the complaint on October 15, 2021.
The plaintiff replied to CAMBA's counterclaims on November 4, 2021.
MOTION PAPERS
In December 2022, GAMBA 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 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, 523052/2021; 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 Jearina 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.
CAMBA's motion papers, include an affirmation of counsel, a memorandum of law, and four annexed exhibits labeled A through D which include the pleadings and a notice of termination.
Tile plaintiffs opposition papers include an affirmation of counsel, a memorandum of law, and three annexed exhibits including a copy of Rent Stabilization Code Section 25204 1, the summons, complaint, and answers filed in the instant action.
CAMBA filed a memorandum of law in reply to the plaintiff s opposition papers. 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
CAMBA moved 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], quoting Sokol v Leader, 74 A.3d 1180, 1180-1181 [2d Dept 2010]). "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 leghl 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 20061).
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 tire 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 Misc.2d 26 [App Term, 2d Dept 2002]).
The plaintiff has alleged two bases for exemption: RSC § 2520.11 (f) and that CAMB A 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 signs a lease with a for-profit landlord (2363 ACP Pineapple, LLC v Iris House, Inc., 55 Mise 3d 7. 9-10 [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 CAMBA's acknowledgement in the lease that the apartment was exempt from rent stabilization. The plaintiff s 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. 2010], 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 (Zegqrowicz, 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 leasie 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 N YCRR § 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 plaintiff's claimed exemptions are invalid; the apartment is subject to rent stabilization. Therefore, the plaintiff's claim for ejectment is dismissed because it has failed to serve the notice required by the Rent Stabilization Code before bringing such a claim (Commercial Hotel 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' plaintiff's claim for ejectment is hereby dismissed, it cannot prevail on its claims for use and occupancy or attorneys' fees, which are ancillary to the claim for ejectmerit. Therefore, those claims are dismissed as well.
CONCLUSION
CAMBA Inc.'s motion for an order pursuant to CPLR 3211 (a) (7) to dismiss the complaint of plaintiff West Sterling 131 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.