Opinion
No. 26791/12.
2012-12-11
Veronica ZAWISTOWSKI, Petitioner, v. Mostafa PARNIAN, Respondent–Tenant, “John Doe”, “Jane Doe”, Respondents–Undertenants.
ANDREW LEHRER, J.
Background
Petitioner Veronica Zawistowski commenced this “no grounds” holdover proceeding against respondent-tenant Mostafa Parnian and respondent-undertenants “John Doe” and “Jane Doe” in May 2012. The petition alleges, among other things, that the subject building is a multiple dwelling; that Mr. Parnian is in possession of the subject premises (the “Unit”) “pursuant to a month to month tenancy rental agreement”; that the Unit was rented for business purposes; and that Mr. Parnian's tenancy was terminated as of April 30, 2012 pursuant to a notice of termination dated March 1, 2012, in which petitioner alleged that there was no current lease in effect.
Annexed to the petition is a copy of an order issued by the Hon. Jose A. Padilla, Jr. on January 3, 2012. It appears from that order that prior to commencing this proceeding in the Housing Court, petitioner had commenced a similar proceeding in the Commercial Part of the Civil Court. In his order, Judge Padilla granted Mr. Parnian's motion to vacate his default and dismissed the petition, noting that he (Mr. Parnian) had previously commenced a “Housing Court action” to compel petitioner to correct alleged Housing Code violations; that petitioner had entered into a consent order in that case without raising any issues regarding the jurisdiction of the Housing Court; and that the consent order provided for the Housing Court's continuing jurisdiction in that matter.
Although Mr. Parnian, who is not represented by counsel, did not submit a written answer, at the pre-trial conference of this case he alleged that he had lived in the Unit for many years.
Although the petition fails to allege whether or not the Unit is subject to Rent Control or Rent Stabilization, at trial, petitioner's position was that it was exempt from regulation while Mr. Parnian's position was that it was subject to Rent Stabilization.
The Trial
The trial of this case took place on July 12, August 23, September 13, and November 9, 2012.
Petitioner's Evidence
Veronica Zawistowski, the petitioner, testified that she has owned the subject building, 1803 Bogart Avenue, for about 30 years; that the building consists of 11 apartments and four stores; that 1807 Bogart Avenue, which is the address of the Unit, is one of the stores; that 10 of the apartments are Rent Stabilized and one is Rent Controlled; and that the Unit had previously been used as a dentist's office and was either never controlled or was decontrolled. She further testified that Mr. Parnian has been in possession of the Unit for 16 years; that before renting him the Unit, she informed him that it was for professional use; and that when he rented the Unit, he told her he wanted to use it to do computer repairs and did not want a lease. She supported her testimony with, among other things, photographs of the building facade (showing the main entrance to 1803 Bogart Avenue, a separate entrance to 1807 Bogart Avenue, and another store); a certificate of occupancy dated May 22, 1933 (which permits an unspecified number of stores and one apartment on the first floor, five apartments on the second floor, and five apartments on the third floor); and copies of 11 annual apartment registrations for 2011filed with the New York State Division of Housing and Community Renewal (“DHCR”). There was no apartment registration for the Unit.
Barbara Chmielewski, who is Ms. Zawistowski's daughter, testified that she is one of the owner's of the subject building and that the Unit was “commercial.” She supported her testimony with a document dated January 15, 2012 from the New York City Department of Finance, entitled “Notice of Property Value,” which notes that the subject building has 11 residential and four nonresidential units.
Ms. Chmielewski also offered in evidence a document dated August 7, 1947, entitled “Notice to Landlord of Proceedings to Determine the Maximum Rent,” purportedly from the U.S. Office of Price Administration. That document, which states that it is regarding apartment 1B at 1803 Bogart Avenue and appears to be addressed to a former owner and to a former tenant of apartment 1B, asks them to provide “[t]he rent for the accommodations on the Maximum Rent Date” and notes that “[t]he Rent Director proposes to remove the above accommodation from the Rent Regulation for Housing, as it is used for exclusively commercial purposes.”
Although the “Notice to Landlord” was not certified, petitioner argued that it was admissible as an ancient document. The Court reserved decision on whether it was admissible, stating that it would make its ruling when it decided the entire case. The Court now holds that the Notice is admissible as an ancient document. ( See Tillman v. Lincoln Warehouse Corp., 72 A.D.2d 40, 44–45 [1st Dept 1979]; Southbridge Towers, Inc. v. Pion, 25 Misc.3d 132[A], 2009 N.Y. Slip Op 52148[U] 2009] ).
Mr. Parnian's Evidence
Mr. Parnian testified that in 1996 he was working for a construction company during the day and at his brother's liquor store at night; that he learned from a mailman that there was an apartment available at 1807 Bogart Avenue; that he met with Ms. Zawistowski and told her that he was looking for a one-bedroom apartment; that Ms. Zawistowski offered to rent him an apartment because he had two or three jobs; and that she also told him that although she would not give him a lease, the rent would be $625.00 per month, that it would stay at that amount for as many years as he wanted, and that he would have to do his own repairs. Mr. Parnian further testified that he moved into the Unit in May 1996; that at the time he moved in, it was a one-bedroom apartment with a hallway, living room, and closet; a kitchen with an oven, refrigerator, cabinets, and sink; and a bathroom with a shower, tub, sink, toilet, towel rack, and mirror; and that Ms. Zawistowski had been in the Unit in 1996 and/or 1997, and then visited the Unit once or twice a year since 1998. He also stated that his rent increased to $650.00 per month in 2003, $700.00 per month in 2006, $750.00 per month in 2009, and $800.00 per month in 2011; that starting in 2003, each time he asked Ms. Zawistowksi for a lease, she replied “What do you need a lease for?”; that in May or June 2011, he lost his job, making it hard for him to pay the rent; and that on July 29, 2011 he filed an HP action in Housing Court.
Mr. Parnian supported his testimony with, among other things, 19 rent receipts, from December 1997 through April 2011, each signed by Ms. Zawistowski and indicating that it was for “1807 Bogart Ave. Apt.”; a W–2 wage and tax statement for 1997 indicating that his employer was “Sovereign Building Corp. DIP,” that he earned over $17,000.00 that year, and that his address was 1807 Bogart Avenue; a notice of termination dated August 4, 2011, which lists the premises as 1807 Bogart Avenue, “ALL ROOMS–APARTMENT Apartment 1ST FLOOR used for Dwelling purposes”; and the notice of termination dated March 1, 2012, served as a predicate to this proceeding, which states that the subject premises is used “for Business purposes.” In addition, the Court agreed to take judicial notice of the court file in Mr. Parnian's July 2011 HP action. In that case, Ms. Zawistowski, who was represented by counsel, agreed to correct the six violations found by the Department of Housing Preservation and Development on August 4, 2011, and further agreed that the Housing Court would retain continuing jurisdiction over the case. It does not appear that she objected to the Housing Court's jurisdiction or claimed that the petition should be dismissed because the Unit was rented for business purposes, or for any other reason.
The HP action is entitled Parnian v. Zawistowski, and bears the index number 41735/11.
On cross-examination, Mr. Parnian testified that at the time he rented the Unit he worked in construction and that a few years later, in 1999 or 2000, he began to study computers; that Ms. Zawistowski told him that the Unit was not Rent Stabilized; that the Unit was not registered with DHCR; and that he last paid rent in May or June 2011.
Frank Camaradella testified that he lived in apartment 1 on the first floor of 1807 Bogart Avenue from 1991 to 1995; that his father helped him find the apartment; that he did not have a lease; that his rent was $500.00 per month; and that the rent was fair.
Petitioner's Rebuttal Evidence
Because Frank Camaradella, whom Mr. Parnian had subpoenaed to testify on his behalf, did not appear on the September 13, 2012 court date, petitioner presented her rebuttal case on that date. Mr. Camaradella did not testify until November 9th.
On petitioner's rebuttal case, Barbara Chmielewski testified that Mr. Parnian moved into the Unit in 1996; that prior to that the Unit was “always commercial”; that it had been used as a doctor's office and then for a seamstress business; and that nothing in the Unit had been renovated.
On cross-examination, Ms. Chmielewski testified that the rent receipts that Mr. Parnian offered in evidence did not specify what kind of apartment they were for. In response to the Court's questions, she stated that although she had not been in the Unit since Mr. Parnian moved in, she was there a few days before he did so; that at that time there was a kitchen and a bathroom with a shower; that Mr. Camaradella was the prior tenant, and lived there from 1991 or 1992 to 1996; and that Mr. Camaradella's father rented the Unit for himself, to be used for his construction business, and then “abandoned his son there.”
Ms. Zawistowski testified that when she first met Mr. Parnian she told him that the Unit was commercial; that the rent was $625.00; that he would be responsible for all repairs; that he told her “all right”; and that he also told her that he did not want a lease. She further testified that in 2000 she told Mr. Parnian that she needed the space and that he should try to leave; that Mr. Parnian told her that he was looking but could not afford to move; and that after five years after he moved in, she asked for a rent increase and Mr. Parnian objected.
Discussion
In a holdover proceeding brought, like this one, pursuant to section 711 of the RPAPL, a landlord must allege, among other things, that the premises are subject to Rent Control, Rent Stabilization, or neither. ( See Villas of Forest Hills v. Lumberger, 128 A.D.2d 701, 702 [2d Dept 1987] ). A landlord claiming that the premises are exempt from rent regulation bears the burden of proving its claim. ( See e.g. Rapone v. Katz, 30 Misc.3d 132[A], 2011 N.Y. Slip Op 50043[U][App Term, 1st Dept 2011]; 143 E. 30th St. Corp. v. Shankman, 10 Misc.3d 126[A], 2005 N.Y. Slip Op 51883[U][App Term, 1st Dept 2005]; West Side Equities v. Cerigo, NYLJ, June 17, 1993 at 24, col 1 [App Term, 1st Dept]; Towers Hotel Invs. Corp. v. Davis, 85 Misc.2d 451 [App Term, 2d Dept, 2d and 11th Jud Dists 1975] ).
Here, although the petition fails to allege that the Unit is subject to, or exempt from, Rent Control or Rent Stabilization, at trial petitioner sought to establish that it is exempt from rent regulation because she rented it to Mr. Parnian to be used for business purposes and Mr. Parnian in fact used it for such purposes. Because both sides agree that Mr. Parnian did not move into the Unit until 1996, Rent Control does not apply. ( See N.Y. City Rent and Rehabilitation Law [Administrative Code of City of NY] § 26–403[e][2][i][9] ). Accordingly, to prevail in this case, petitioner must prove that the Unit is exempt from Rent Stabilization.
Section 2520.11(n) of the Rent Stabilization Code (“RSC” or “the Code”) (9 NYCRR) provides that the Code shall not apply to “housing accommodations used exclusively for professional, commercial, or other nonresidential purposes.” The Code defines “[h]ousing accommodation” as “[t]hat part of any building or structure, occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment ...” (RSC § 2520.6[a] ). That being said, where a tenant rents a unit with a long history of commercial use, he may not make it Rent Stabilized merely by converting it to residential use on his own, without the knowledge and acquiescence of the landlord. ( See Metzendorf v. 130 W. 57 Co., 132 A.D.2d 262, 265 [1st Dept 1987] ). If, however, the landlord knows of, and acquiesces in, the tenant's residential use of commercial space, and that space would otherwise qualify for protection, it will be Rent Stabilized ( see id.; U.B.O. Realty Corp. v. Mollica, 175 Misc.2d 897 [App Term, 1st Dept 1997], affd257 A.D.2d 460 [1st Dept 1999]; West Side Equities v.. Cerigo, supra, NYLJ, June 17, 1993 at 24, col 1 [App Term, 1st Dept]; Ten Be or Not Ten Be v. Dibbs, NYLJ, June 12, 1985 at 11, col 1 [App Term, 1st Dept], affd117 A.D.2d 1028 [1st Dept 1986], unless it is illegal or incapable of being legalized. ( See Wolinsky v. Kee Yip Realty Corp., 2 NY3d 487, 493 [2004];142 Fulton LLC v. Hegarty, 41 AD3d 286 [1st Dept 2007]; Duane Thomas LLC v. Wallin, 35 AD3d 232 [1st Dept 2006]; Tan Holding Corp. v. Wallace, 187 Misc.2d 687 [App Term, 1st Dept 2001] ).
Findings
The Court finds credible Mr. Parnian's testimony that he occupied the Unit as his residence for 16 years; that he did not use it for business purposes; and that petitioner knew of, and acquiesced in, his long-time residential use. The rent receipts that were admitted in evidence strongly suggest that petitioner considered the Unit to be an apartment and not a store. Further, petitioner did not even attempt to rebut Mr. Parnian's testimony that at the time he moved in the Unit had a kitchen with an oven, refrigerator, and sink, and a bathroom with a shower and tub. Indeed, petitioner's daughter admitted that when she was in the Unit a few days before Mr. Parnian moved in there was a kitchen and a bathroom with a shower there, and that for five years immediately before he moved in another tenant lived there.
Given that petitioner knew of, and acquiesced in, Mr. Parnian's residential use of the premises, and given further that there are 11 other residential units in the subject building, 10 of which are Rent Stabilized, the Unit is subject to Rent Stabilization unless it is illegal and can not be legalized.
The August 1947 Notice to Landlord of Proceedings to Determine the Maximum Rent, which proposed to remove “apartment 1–B” from “Rent Regulation for Housing, as it is used for exclusively commercial purposes,” was not a final order. Even if it were and applied to the Unit (which may or may not be the “apartment 1–B” referred to therein), that would not, in and of itself, preclude Rent Stabilized status since the Emergency Tenant Protection Act of 1974 (“ETPA”), with certain exceptions not relevant here, made decontrolled housing accommodations subject to Rent Stabilization. ( See ETPA §§ 3, 5, as added by L 1974, ch 576, § 4; Matter of Sandow v. State of N.Y. Div. of Hous. & Community Renewal, 78 AD3d 530, 531 [1st Dept 2010] ).
According to the building's certificate of occupancy, the first floor should have only one apartment and an unspecified number of stores. The Court finds that the apartment permitted by the certificate of occupancy is apartment 1A and not the Unit. Consequently, residential use of the Unit is not authorized, making it exempt from Rent Stabilization unless the certificate of occupancy can be amended to permit its use as a residence.
At trial, neither party offered evidence regarding whether the certificate of occupancy can be amended to permit residential use of the Unit. Because it was petitioner's burden to establish that it could not be ( see Zaccaro v. Freidenbergs, 10 Misc.3d 143[A]; 2006 N.Y. Slip Op 50096[U] [App Term, 1st Dept 2006], and it failed to do so, the Court finds that Mr. Parnian's apartment is subject to Rent Stabilization. Since petitioner failed to allege and prove any of the grounds set forth in the Rent Stabilization Law or Code for terminating Mr. Parnian's tenancy, the petition is dismissed with prejudice. The Clerk of the Court is directed to enter a final judgment of possession in favor of respondent.
This constitutes the decision and order of the Court.
The parties are requested to pick up their exhibits from Part T by January 11, 2013.