286 INC v. MALDONADO (2019)

Civil Court, City of New York.

286 F.W., INC., Petitioner-Landlord, v. Jose MALDONADO, Respondent-Tenant, “John Doe” and “Jane Doe”, Respondents-Occupants.

L & T 70091/18

Decided: March 28, 2019

NOVICK, EDELSTEIN, LUBELL, REISMAN, WASSERMAN & LEVENTHAL, P.C., Attorneys for Petitioner, By: Matthew Gordon, Esq., 733 Yonkers Avenue, Yonkers, New York 10004, 212.613.7577 NEW YORK LEGAL ASSISTANT GROUP, Attorney for Respondents, By: Elliot C. Edwards, Esq. & Mark Hess, Esq., 7 Hanover Square, 7th Flr, New York, New York 10004, 212.613.7318

 BACKGROUND

This summary holdover proceeding was commenced by Petitioner against Jose Maldonado (Respondent) seeking to recover possession of Apartment 6F at 286 Ft. Washington Avenue, New York, New York 10032 (Subject Premises) based on the allegation that Respondent had made alterations to the Subject Premises without permission from Petitioner and in violation of his lease.

PROCEDURAL HISTORY

Petitioner issued a Notice to Cure dated April 3, 2018 alleging that Respondent had “․ performed unauthorized and illegal alterations in the kitchen by removing the dumbwaiter shaft without the knowledge and consent of the landlord, and without proper building permit(s) from New York City.” The Notice demanded that Respondent cure the violation by restoring the Subject Premises to its original condition.

Petitioner issued a Notice of Termination dated June 27, 2018, which alleged that Ray Perez (Perez), the Superintendent confirmed that as of said date Respondent had failed to restore the Subject Premises to its original condition.

The petition was filed August 16, 2018. Proof of service was filed August 30, 2018. The proceeding was initially returnable on September 5, 2018. The proceeding was adjourned to October 18, 2018 for Respondent to obtain counsel.

On October 18, 2018, Respondent appeared by counsel and the proceeding was adjourned to November 29, 2018. The parties further stipulated that Respondent would serve an answer by November 15, 2018, and that Petitioner could accept use and occupancy without prejudice.

Respondent served an answer dated November 15, 2018, alleging that he had not violated a substantial obligation of his lease because the alleged alteration was not structural and did not change the nature or character of the Subject Premises. Respondent also asserted breach of warranty of habitability as a defense to Petitioner's claims for use and occupancy and as a counterclaim.

Respondent issued a Demand for a Verified Bill of Particulars on November 21, 2018. Petitioner provided a response dated December 10, 2018. Petitioner stated in its Bill that on March 28, 2018, Perez had observed Respondent removing garbage bags from the Subject Premises, and that upon further inspection Petitioner discovered Respondent had removed the dumbwaiter shaft and moved a load bearing and fire rated partition wall in the kitchen of the Subject Premises. Petitioner further alleged that the removal of a fire rated wall created a fire hazard and that § 101-14 of Chapter 100 of Title 1 of the Official Compilation of the Rules of the City of New York.

On November 29, 2018, the parties stipulated to a trial date of January 17, 2018 and a joint inspection of the Subject Premises on December 20, 2018 at 10 am.

The proceeding was assigned to Part 118 for trial on March 28, 2019. The trial commenced and concluded on that day. At the conclusion of trial, the Court reserved decision.

FINDINGS OF FACT

Petitioner is the owner of the building located at 286 Ft Washington Avenue, New York, New York, 10032 pursuant to two deeds dated April 7 and April 10, 1987 (Ex 1 & 8).

Respondent is the tenant of record of the Subject Premises pursuant to a lease dated March 3, 2008 (Ex 4). The lease was for a one year term through February 28, 2009, at a rent of $ 1000 per month. The lease was most recently renewed for a two year period through February 28, 2019, at a monthly rent of $ 1209.71 per month (Ex 3).

Paragraph 7 of Respondent's lease provides in pertinent part “Tenant must obtain Landlord's prior written consent to install any paneling, flooring, “built in” decorations, partitions, railings, or make any alterations or to paint or wallpaper the Apartment (Ex 4).”

There is a valid multiple dwelling registration on file with HPD (Ex 2).

The Subject Premises are governed by Rent Stabilization and Petitioner has registered the rents with DHCR through 2018 (Ex 5). The 2018 registration lists Respondent as the tenant of record at a legal rent of $ 1224.11.

The facts concerning the alteration are largely uncontested.

On March 28, 2019, Perez discovered that Respondent was doing alterations in the Subject Premises by removal of the dumb-waiter shaft located in the Subject Premises. On March 29, 2018, Perez and Michael Rosen (Rosen) and agent for Petitioner, met with Respondent in the Subject Premises and asked Respondent to stop work.

Rosen credibly testified that on that date he observed that Respondent had removed about half of the dumb-waiter shaft, and that there was an open hole in the ceiling of the Subject Premises as well as debris throughout the Subject Premises. Rosen testified that prior to Respondent's alteration there was a cinder block wall surrounding the shaft with metal on it. Respondent removed the wall and put in flooring and a ceiling.

Photographs of what Rosen observed on that date were admitted into evidence (Ex 6) and clearly show that substantial work was in progress.

Rosen testified he believed permits were necessary for the work, and that the alteration done by Respondent crested a hazardous condition.

It is undisputed that Respondent did not seek permission from Petitioner prior to making such alteration and that Petitioner never consented to the work. Respondent did not stop work as had been requested by Petitioner but instead proceeded with the alteration.

Rosen went back to the Subject Premises on December 20, 2018. At that time, he observed that Respondent had moved the refrigerator to where the shaft used to be located and that a part of the shaft was still sticking out.

Paul Gallo (Gallo) also testified for Petitioner.

The court found both Gallo and Rosen to be credible witnesses.

Gallo is a licensed Architect and went to the Subject Premises on January 31, 2019. On that date, Gallo took photos of the completed work done by Respondent. The photographs show the area of flooring installed by Respondent where the shaft used to be (Ex 7B) and the ceiling being blocked where the shaft used to go through (Ex 7C).

Gallo testified that he believed Respondent's alteration created a fire hazard and that the work done by Respondent required the filing and approval of plans with the Department of Buildings as well as an asbestos investigation due to the age of the building. Gallo testified that he did no probes of Respondent's work but believed the alteration was potentially hazardous.

Gallo testified about a photo (Ex 9) that showed what was behind the alteration done by Respondent and stated that this photo was further evidence that the work done by Respondent was not proper. Gallo testified that Respondent used plywood and that the plywood was not stamped as fire retardant. Gallo further testified that a metal layer should have been used to support the sub-floor installed by Respondent.

Respondent testified on his own behalf. Respondent testified that he had lived in the Subject Premises since 2008 and that he currently lived there with Rosanna his wife and his five stepchildren.

DISCUSSION

§ 2524.3(a) of the Rent Stabilization Code allows a landlord to commence a holdover proceeding against a tenant where “The tenant is violating a substantial obligation of his or her tenancy other than the obligation to surrender possession of such housing accommodation, and has failed to cure such violation after written notice by the owner that the violations cease within 10 days.”

It is well settled that the violation of an express covenant not to make any alterations without the landlord's permission is a violation of a “substantial obligation” of the tenancy (Haberman v. Hawkins, 170 AD2d 377, 377—78; Harar Realty Corp v. Michlin & Hill, Inc. 86 AD2d 182). Alterations involving a dumb-waiter shaft have been held to constitute an alteration to a building or structure (McLean v. 405 Webster Avenue Associates 98 AD3d 1090) and the court considers this type of work to be beyond a minor change for esthetic purposes.

Petitioner established at trial that Respondent violated a substantial obligation of his tenancy by making alterations to the Subject Premises without Petitioner's consent.

The evidence as to whether the work was done illegally, was somewhat equivocal but not in any way contested by Respondent. No violations were issued due the work done by Respondent. Gallo did not state for certain that it was unlawfully done, but he did testify that he believed the proper means for said work required filing plans with DOB and using proper materials, neither of which were done by Respondent, and that Respondent removed a wall made of fire retardant material.

§ 51(1) of the Multiple Dwelling Law provides

Every shaft constructed after April eighteenth, nineteen hundred twenty-nine, in any multiple dwelling shall be enclosed on all sides with fireproof walls and shall have fireproof doors and assemblies at all openings, with the doors self-closing. Dumbwaiter shafts, except those adjoining public halls, may be constructed with walls of gypsum plaster blocks approved by the department, at least two inches thick if solid and at least three inches thick if hollowAdditionally § 67 (1)(d)(3) of the Multiple Dwelling Law provides “(t)he walls and ceiling of ․every dumb-waiter, elevator, and, except as provided in paragraph d of subdivision six, every other shaft ․shall be sealed off from every other portion of the dwelling with fire-retarding materials approved by the department.”

While there was no testimony or evidence as to the date the building was erected, these statutory provisions, along with Gallo's uncontested testimony establish at a minimum that there are safety issues with the work done by Respondent. Moreover, even if the alterations were not unlawful, they still constitute a breach of lease.

Gallo further testified that any further work done either to restore the Subject Premises to its original condition or to legalize the work done by Respondent would require the filing of plans with DOB.

CONCLUSION

Based on the foregoing, the Court finds Petitioner is entitled to a final judgment of possession as against Jose Maldonado. Issuance of the warrant is stayed for ten days pursuant to RPAPL § 753(4) to afford Respondent an opportunity to cure the breach by restoring the Subject Premises to its original condition.

The proceeding is dismissed as against “John Doe” and “Jane Doe” as Petitioner offered no evidence against said respondents.

Respondent's counterclaim for an order to correct is also dismissed as no evidence was offered by Respondent on that issue.

This constitutes the decision and order of this Court.¹

FOOTNOTES

1.   Parties may pick up trial exhibits from clerk's office on the second floor of 111 Centre Street, New York, NY 10013, at window 9, within thirty days of the date of this decision. After said period, exhibits may be disposed of in accordance with Administrative Directives.

Sabrina B. Kraus, J.