Opinion
L & T 72596/2015
09-20-2016
Wildwood Company, LP, Petitioner-Licensor v. Vittoria De Bruin A/K/A VICTORIA S. DE BRUIN A/K/A VICTORIA DE BRUIN 45 Fifth Avenue, Apt. 11C New York, NY 10003, Respondent-Licensee "John Doe" & "Jane Doe" Respondents-Undertenants.
NEWMAN FERRARA LLP Attorneys for Petitioner By: Jonathan A. Ozarow, Esq. 1250 Broadway, 27th Floor New York, New York 10001 212.619.5400 MFY LEGAL SERVICES, INC. Attorneys for Respondent By: Jason Blumberg, Esq. 299 Broadway, 4th Floor New York, New York 10007 212.417.3711
NEWMAN FERRARA LLP Attorneys for Petitioner By: Jonathan A. Ozarow, Esq. 1250 Broadway, 27th Floor New York, New York 10001 212.619.5400 MFY LEGAL SERVICES, INC. Attorneys for Respondent By: Jason Blumberg, Esq. 299 Broadway, 4th Floor New York, New York 10007 212.417.3711 Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by WILDWOOD COMPANY, LP(Petitioner) against VICTORIA DE BRUIN (Respondent), seeking to recover possession of 45 Fifth Avenue, Apt. 11C, New York, NY 10003 (Subject Premises) based on the allegation that Belle Tarlow a/k/a Belle Kantrowitz-Tarlow (Tenant), the last tenant of record died on May 8, 2015, and therefore Respondent's license to occupy the Subject Premises has been terminated.
PROCEDURAL HISTORY
Petitioner issued a Notice to Quit dated July 10, 2015, revoking Respondent's license to occupy the Subject Premises as of July 31, 2015. The petition is date August 3, 2015, and the proceeding was initially returnable August 13, 2015.
Respondent appeared by counsel on the initial court date, and filed an answer, dated August 2015, asserting she is not the licensee but the Rent Control Tenant of the Subject Premises, that she is Tenant's daughter and is entitled to succeed to her tenancy, that the Subject Premises are rent control not rent stabilized and other defenses.
The proceeding was adjourned by the parties on the next over 6 courts dates, covering a period of August 2015 through Jun 2016. At no time during this period did Petitioner move for discovery.
THE PENDING MOTIONS
On June 21, 2016, Respondent moved for summary judgment and related relief, and on September 15, 2016, over one year after the initial court date in this proceeding, Petitioner cross-moved for leave to conduct discovery. On September 15, 2016, the court heard limited argument and reserved decision. The two motions are consolidated herein for disposition.
Tenant was the last rent control tenant of record of the Subject Premises. Tenant died May 8, 2015, at the age of 99, at the Subject Premises (Ex 1). The death certificate states Respondent was the informant and Tenant's daughter, and lists Respondent's address as the Subject Premises.
Respondent was born in 1943 and is 72 years old. Her birth certificate lists Belle Kantrowitz as her mother and Emanuel Tarlow as her father (EX 2). Respondent married Edmund Dieter De Bruin in Budapest, Hungary in December 1994. Respondent states she moved into the Subject Premises and began living with Tenant in September 2010.
In July 2013, Petitioner's counsel wrote to Tenant stating her landlord, James Crespi, had become aware that Tenant was living in the Subject Premises with two other adults, suggesting that said occupancy was in breach of Tenant's lease, and asking Tenant to identify the people and their relationship to Tenant. Respondent's counsel replied, by letter dated August 9, 2013, and stated there was only one other occupant Respondent, and that Petitioner had been aware of her residency based on prior litigation (both letters annexed as Ex G ).
Respondent submits additional documentary evidence in support of her succession claim including: a change of address form effective September 28, 2010, with a direction to forward Respondent's mail from 67 Lake Street, Highland Mills, NY to the Subject Premises (Ex H); a document showing her address was changed to the Subject Premises with the Board of Elections as of October 8, 2010, and that she voted from said address on six occasions between November 2010 and November 2014 (Ex I); and Social Security statements addressed to the Subject Premises from 2010 through 2014 for Tenant, and 2011 through 2014 for Respondent (Ex J); and statements for joint accounts for Respondent and Tenant for periods for 2013 to 2015 (Ex K); medicare statement for Respondent and Tenant addressed to the Subject Premises during the relevant period (Ex L); Verizon Bills addressed to Respondent at the Subject Premises for periods from 2013 to 2015 (Ex M); Con Ed Bills addressed to Tenant at the Subject Premises (Ex N); and Metrocard records for Respondent showing transactions for periods from 2013 through 2015.
Respondent argues she is entitled to summary judgment on her succession claim because she has established that Tenant and Respondent were mother and daughter and lived together in the Subject Premises for several years prior to Tenant's death.
Petitioner cross-moves for discovery and use and occupancy. Petitioner asserts it would be improper to grant summary judgment prior to their having had an opportunity for additional disclosure citing CPLR 3212(f). Petitioner submits no affidavit from any party with personal knowledge either in support of its cross-motion for disclosure or in opposition to Respondent's motion for summary judgment. Petitioner rather argues that Respondent has failed to meet its burden of entitlement to summary judgment as a matter of law, and surmises that additional documents not produced may contradict the evidence already provided.
DISCUSSION
To obtain summary judgment the movant must establish the claim sufficiently to warrant the court entering judgment as a matter of law, by tendering evidence in admissible form. To defeat such a motion there must be a showing of a material disputed question of fact, also by submission of evidence in admissible form, or by making a showing of why such evidence has not been tendered (Zuckerman v City of New York 49 NY2d 557).
Respondent has already established by documentary evidence that she is Tenant's daughter. It is undisputed that Tenant resided in the Subject Premises for at least one year prior to her death. The only remaining issue is whether Respondent resided there with Tenant for at least one year prior to Tenant's death. Respondent's affidavit along with the documents she provided does present prima facie evidence sufficient to make such a finding, and is un-rebutted by any evidence by Petitioner documentary or otherwise.
CPLR 3212(f) provides :
Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.
As noted above, no such affidavit has been submitted. Petitioner has failed to demonstrate that facts essential to justify its opposition may yet be exposed (Bank of America v Tatham 305 AD2d 183; Auerbach v Bennett 47 NY2d 619,636; Bailey v NYC Transit Authority 270 AD2d 156); Scarola v El Al Corp 2002 NY Slip Op 50089(U).
There was admittedly informal discovery prior to the motion practice, pursuant to which, Respondent produced documents that were requested and in her possession. Respondent has submitted an affidavit stating she has no driver's license, has not filed tax returns in several years, and has no credit card accounts. Petitioner had an ample opportunity to move for additional discovery in the one year the proceeding has been pending and failed to do so. Petitioner provides no explanation for this. Petitioner's mere hope that it might uncover some evidence during additional discovery is an insufficient basis to deny summary judgment. A motion for summary judgment will be granted if it appears that the opposing party has made no reasonable attempt to ascertain the facts (Meath v Mishrick 68 NY2d 992; Karakostas v Avis Rent A Car Systems 301 AD2d 632).
Petitioner's request for additional discovery is no more than a fishing expedition. Counsel's claim that perhaps if the full bank statements were produced, something might turn up is simply insufficient. Nor is the fact that Respondent missed paying one phone bill, a sufficient basis to warrant further inquiry.
Moreover, in considering Petitioner's belated request for additional discovery, the court must consider potential prejudice to Respondent (NYU v Farkas 121 Misc 2d 643, 647). Respondent has established that she would be prejudiced by granting Petitioner's belated and unsubstantiated discovery request as her entitlement to continue Tenant's SCRIE benefits may be terminated by additional delay. SCRIE had frozen Tenant's rent at $454.41 per month. In May 2015, Respondent was notified that SCRIE benefits would end unless she applied to take over Tenant's benefit within 60 days. Respondent submitted the benefit application on July 8, 2015, but SCRIE will not process it without proof that Respondent has been granted succession rights to the Subject Premises (Ex F).
While typically succession is not an issue ripe for summary determination, particularly prior to formal disclosure, under the specific facts and procedural history of this proceeding, the outcome is warranted.
Based on the foregoing Petitioner's cross-motion for disclosure is denied, Respondent's motion for summary judgment on her succession claim is granted, and the proceeding is dismissed.
This constitutes the decision and order of the court.
Dated: New York, New York September 20, 2016
___________________ Sabrina B. Kraus, JHC