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Civil Court, City of New York.

Joseph MOTYKA, Denise Attoinese & Gloria Attoinese, Petitioners, v. Michael BABIAK et al., Respondents.


Decided: March 29, 2019

Petitioner's counsel, Wenig Saltiel LLP, 26 Court Street - Suite 1200, Brooklyn, NY 11242, (718) 797-5700, Respondent's counsel, Kellner Herlihy et al., 470 Park Avenue South - 7th Floor, New York, NY 10016, (212) 889-2821

After considering the testimony and the other evidence at the trial of this holdover proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants petitioner a judgment of possession. A warrant of eviction may issue forthwith but such issuance shall not preclude an application for relief pursuant to RPAPL § 753. Upon service of a copy of the judgment with notice of entry petitioners may move for an award of use and occupancy and such other relief as may seem appropriate.


Petitioners predicate this proceeding on the allegation, as set out in the petition, that “[t]he premises [unit 3-L] are not subject to rent regulatory status being contained in a five family dwelling vacant after June 30, 1971.” Respondent, who became the tenant of 3-L in 1998, denies the same and asserts that the premises is subject to rent regulation because the building has a sixth dwelling — unit 1-L. Petitioners acknowledge the presence of the sixth unit but deny that 1-L is or ever was a dwelling.

At the outset of the trial and in a “so ordered” stipulation, the parties agreed that “the sole issue for trial shall be whether or not the subject building contains 5 or 6 residential units/housing accommodations.” 1 In support of their positions the parties offered dozens of documents and the testimony of eight witnesses.

Statute defines a “housing 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.” Rent Stabilization Code (9 NYCRR) § 2520.6(a). Statute also provides that a housing accommodation will be subject to rent stabilization if it is located in a building with six or more housing accommodations on the date that the building became subject to regulation, RSC (9 NYCRR) § 2520.11(d). In Gracecor Realty Co. v. Hargrove, 90 NY2d 350, 355-56 (1997) the court considered whether a partitioned unit in a lodging house was such an accommodation. The occupant had lived there for years, and the unit had a door that locked and was furnished with a bed and a closet or locker, but did not have a window, a kitchen, or bathroom facilities. The court held that the unit was a housing accommodation subject to rent stabilization. The court wrote:

Whether a period of occupancy is accompanied by sufficient indicia of “permanency” such that the space occupied may be characterized as a home, residence or dwelling unit for rent-stabilization purposes is a fact-intensive question substantially turning on the intent and behavior of the parties. * * * The Code itself identifies the intent of the occupant as a relevant consideration (see, 9 NYCRR 2520.6[a] [providing that a tenant must occupy or intend to occupy that part of any building or structure as a residence, home or dwelling unit] ).


The building is a three-story walk-up on a real estate parcel (hereinafter, “the Parcel”) that measures 25 by 90 feet 2 and that faces south onto Union Street. The building was erected near the beginning of the 20th Century. At that time the Parcel's owner was a Carolina Fischetti. At the rear of the Parcel and some 30 feet distant from the building to be erected, there was a two-story dwelling that respondent testified was like “a carriage house” (hereinafter, the “carriage house”); it was torn down in 2002.

Fischetti's application is dated either October 5, 1893 or 1898 — in at least one place on the application the last digit might be a 3 or an 8. Filed with what was then called the Department of Housing and Buildings of the City of New York, the application states that the building would be a tenement house, that it would have four floors, and that there would be one family per floor. There is also the following entry: “Front part of first floor to be used as general store, about 25 feet deep.”

Apparently a somewhat different building was erected. The earliest entries on the City of New York's inspection cards (hereinafter, “I card”), discussed at greater length within, are dated November 18, 1902. These entries show a building that has three, not four, floors, and a total of nine, not four, apartments: two on the first floor, three on the second floor, and four on the third floor.

In 1925 an architect, Joseph Leone, filed at the Bureau of Buildings an application to alter the building. The application identifies the Parcel's owner as a Maggie Melillo.3 It is uncontested that she was a grandmother of petitioner Gloria Attoinese, a great-grandmother of petitioner Denise Attoinese, and a great-great-grandmother of Denise Attoinese's son, petitioner Joseph Motyka.

In response to the application's question “How to be occupied?” Leone specified “Tenement 6 families and store.” Inconsistently with the I-card entries from 1902, Leone also specified that the occupancy of the altered building would remain unchanged. Notwithstanding or perhaps regardless of this inconsistency, by a notice to the Superintendent of Buildings dated July 18, 1925, the Tenement House Department of the City of New York approved the application.

Four decades later Maggie Melillo passed away. By a deed dated June 20, 1967 the executor of her estate conveyed the Parcel to Helen Melillo, i.e., Gloria Attoinese's aunt. By a deed dated April 26, 1993 Helen Melillo conveyed the Parcel to Gloria and Joseph Attoinese as husband and wife. Joseph Attoinese died in 2011. By a deed dated February 2, 2013 Gloria Attoinese conveyed the Parcel to three individuals: herself, Denise Attoinese, and Joseph Motyka.

As discussed within, 1-L is one of two units — the other is 1-R — on the first floor of the building. The units run the length of the building and they are separated from each other by the building's common hallway and stairwell. 1-L is a single space that measures, approximately and to its exterior walls, 10 feet wide by 42 feet deep. The front 25 or so feet of 1-L (hereinafter “front space”) was used as a store until not later than 1960, after which it was left vacant; the remaining 17 or so feet (hereinafter “rear space”) contained a stove, a refrigerator, and a kitchen sink, but not a toilet or other bathroom fixtures. Access between the front and the rear space was partially blocked by two walls, each of which extended less than half of the width of 1-L; between the two there was an open archway roughly three feet wide. The archway did not have a door; neither the front space nor the rear space, taken individually, was an enclosed, self-contained space. 1-L was never rented, either in whole or in part, to anyone. There is a water closet in 1-L. It is in the front space and it is adjacent to the westernmost of the two walls. There is a toilet in the water closet but not a sink or other fixture.

There are two doors to 1-L. One is in the exterior wall of the building and it allows passage directly from 1-L to the stoop and down to sidewalk, and vice-versa; the other is inside the building and it allows passage between the rear space of 1-L and the building's common hallway.4


In support of its prima facie case petitioner presented documents and two witnesses: petitioners Gloria Attoinese and Denise Attoinese. On rebuttal, petitioner offered the testimony of Gloria Attoinese's niece, Josephine Quartuccio, and additional testimony of Denise Attoinese.

Gloria Attoinese testified that she was born in 1926 and that she lived in the carriage house with her parents, Yolanda and Michael Delissio, while growing up. She testified that she married in 1951, lived elsewhere for approximately one year, and then moved to 2-L in the building in 1952. She testified that she lived there for over six decades and that she moved to 1-R in December, 2016.

Gloria Attoinese also testified that the building was always configured with five residential units and a store. She testified that until she married and moved out in 1951 she was in 1-L on a daily basis, passing through it on the way to and from the carriage house. She testified that her grandmother ran the store, that it was like a candy store or a deli, and that sandwiches and groceries were made and sold there. She testified that there was a stove to make coffee and a refrigerator in which to keep cold cuts. She testified that the store closed at some point between 1955 and 1960, that the store was never rented to anyone, and that the space remained vacant after the store closed. She testified that there was a toilet in 1-L but not a shower or a bathtub. She testified that no one ever lived in any part of 1-L and that some furniture and other family possessions were stored there. She testified that inasmuch as the apartments upstairs were too small for family gatherings, 1-L was used for get-togethers five or so times per year on holidays and birthdays. The court finds that this testimony was credible.

Gloria Attoinese testified as well that Maggie Melillo and Helen Melillo lived together in 3-L until the former died in 1967, and that Helen Melillo lived in 3-L until she died three decades later; at that time 3-L was rented to respondent. Gloria Attoinese testified that although her father lived in the carriage house but never in the building, her mother, Yolanda Delissio, moved to 2-R and lived there with aunt Tilly, who had lived there since the 1950s but moved out in 1980. Gloria Attoinese testified that Frank Attoinese moved to 2-R after her mother died, and that he lived there until his death in 2015. The court finds that the testimony described in this paragraph was credible but that it did not bear directly on the use that was, or was not, made of 1-L.

Denise Attoinese testified that she lived in 2-L from her birth in 1957 to 1975 when she married and moved to New Jersey. She testified that during these 18 or so years 1-L was always vacant. She testified that since moving to New Jersey she has visited her mother at the building regularly and perhaps as often as once a week and that 1-L has remained vacant. She testified that she calls the rear of 1-L “the kitchen” and that Maggie Melillo called it the “back room.” The court finds that this testimony was credible.

Josephine Quartuccio testified on petitioner's rebuttal case that she is a daughter of Gloria Attoinese's sister, Florence. She testified that she was born in 1961, that she never lived at the building, that she visited once a week or so until she was 18 years old, that thereafter she visited only on holidays and special birthdays, and that her earliest memories of the building date from when she was five or six years old. She testified that on holidays and special birthdays Gloria Attoinese cooked upstairs, never in 1-L, and that she, i.e., Josephine, helped to carry the food down to 1-L. She testified that in the winter it was cold in 1-L, that no one ever lived there, but that on a few occasions if she happened to be at the building late at night she slept on a loveseat there. The court finds that her testimony was credible.


In his defense respondent offered documents and the testimony of five witnesses: his own, the testimony of former tenants James LeBlanc and Patricia Solano, the testimony of Craig Thompson, a custodian of records at National Grid, and the testimony of an architect, Alexander Compagno.

James LeBlanc testified that he lived in 1-R from 2004 to 2015. He testified that during this time no one lived in 1-L, that no business was conducted in 1-L, and that “it's really just an empty, you know, space.” He testified that he observed a handful of get-togethers in 1-L, that these took place during the summers, and that as the years passed he observed fewer and fewer of these. He acknowledged that he was more likely to have observed the get-togethers if he had been sitting outside on the stoop, and that he sat outside to smoke cigarettes if the weather was conducive to the same, i.e., mostly from April to October. He testified that he sat outside on the stoop much less frequently after 2007 when he married and, at his wife's insistence, quit smoking. The court finds that LeBlanc's testimony was credible.

Patricia Solano testified that she lived in apartment 3-R in the building from 1982 to 2008. She testified that she saw family gatherings of eight to ten people in 1-L at Christmas and New Year's and on other occasions that she did not remember. She testified that Gloria Attoinese was an excellent cook and that she invariably offered food to Solano when she passed by those family gatherings. Solano testified that she never saw Gloria Attoinese cook in 1-L.

Solano also testified that in the late afternoon when she returned from work, she often saw Joseph Attoinese sitting in the front of 1-L watching passers-by, but that when she left for work in the morning she never saw anyone in 1-L. She testified that at times she saw Gloria Attoinese with Joseph Attoinese in 1-L, that at times she saw Frank Attoinese with Joseph Attoinese in 1-L, but that she never saw respondent with Joseph Attoinese in 1-L. The court finds that Solano's testimony was credible.

Craig Thompson testified that he is the custodian of records for New York City for National Grid. He testified that National Grid's records do not go back earlier than 1993. He testified that the billing rate used for the meter for 1-L was a non-heating rate, and that the service that National Grid provided was only for a stove for cooking. He testified that National Grid's selection of a rate was based on the appliance to be serviced, and not on whether the appliance was used residentially or commercially. He testified that the billing for 1-L, to the extent that it shows a usage, shows a usage of one therm per month, and that a usage of one therm per month is consistent with the burning of a stove's pilot light but no other usage. The court finds that Thompson's testimony was credible.

Respondent moved into 3-L in 1998. He testified that during the first two or three years of his tenancy when he returned home from work in the late afternoon he saw Joseph Attoinese in 1-L about four times per week. Respondent testified that at those times he would drop in to 1-L and they would discuss baseball and the neighborhood. Respondent testified that he stopped visiting with Joseph Attoinese perhaps two or three years later because Frank Attoinese, who had moved into the building and was Joseph Attoinese's son, made it clear, albeit not verbally, that he disapproved of respondent's friendliness toward his father.

Respondent acknowledged that 1-L was never a functioning store and that it was never rented to a residential tenant. He testified that there was a dining room table there, chairs, pictures of family members, and plants in the storefront window. He testified that he considered 1-L to be an extension of Joseph and Gloria Attoinese's apartment upstairs.

The court finds that respondent's testimony was by and large credible but that its probative weight was reduced by inaccuracies and overstatements. For example, respondent testified that he once saw a shower in 1-L; however, the court finds that there is no evidence of a shower in 1-L now, no evidence of a shower ever having been removed from 1-L, and the court credits Gloria Attoinese, Denise Attoinese, and Josephine Quartuccio, each of whom testified that there was never a shower in 1-L. At paragraph 14 of his affidavit sworn to on April 28, 2016 respondent averred that “There have been a few times when someone stayed in the apartment for a few weeks or months, apparently as a guest of the family.” However, when questioned about this on cross-examination, respondent acknowledged that other than seeing a light on in the premises, his sworn statement that someone stayed in the apartment “for a few weeks or months, apparently as a guest of the family” was only speculation. In the same affidavit he averred that he had observed petitioners celebrating Easter in 1-L in 2016; instead, the court credits Denise Attoinese's testimony that by 2016 petitioners no longer celebrated Easter with a family gathering inasmuch as Frank Attoinese had died in 2015.

Alexander Compagno testified as an expert, principally about documents that were received in evidence. Most usefully, he explained what “I cards” were. He testified that in the days before there were certificates of occupancy the City of New York used these to keep track of construction and to register the status of properties. He testified that the need therefor and the utility thereof diminished once certificates of occupancy were required by law and also as it became more and more common for architects and engineers to file drawings, plans, and other documents with government agencies. He testified that by the 1960s the use of I-cards had faded away, but that they remain a useful resource, albeit one to be considered along with all other records, for someone investigating what he characterized as the “layered history” of a construction project.

With respect to the Parcel, Compagno explained that there were two sets of I-Cards, one with a blue background, the other with a yellow background. He testified that the blue I-cards were in-house or administrative cards that were used to keep a record of significant construction at the site and that the yellow cards were used by field inspectors to record what they observed at the site. He testified that the initial entries on the yellow I-card, i.e., those from November 18, 1902, were made in black ink by an inspector named James Treacy as shown by the signature on the card. Compagno testified that later entries, showing alterations and other changes, were made in an ink of a different color, typically but not necessarily red. Some of the entries in red ink are legible; others are not, having faded or otherwise become indistinct. Almost none are dated and none identify their author.

During cross-examination Compagno acknowledged that some of the numbers on the yellow I-card were not clear and might be smudged. He also acknowledged that it was possible to find contradictions on the yellow I-cards. He testified as well that a field inspector might note on an I-card only what he had been sent to inspect but not note or update the card as to other conditions seen but inconsistent with prior markings on the I-card. One entry on the yellow I-card, arguably in a lighter black ink and unquestionably written in a lighter hand, provides: “Accept 4 families as legal on 2nd story.” This entry appears to be dated “12/6/18.” Yet on the blue I-card there is not an entry for construction or an inspection on that date.

In 1953 Leone once again filed an application to alter the building. The stated purpose was “To remove Housing Division violation by installing a water closet compartment on each of the first, second and third floor [sic] as shown on plans. Under the heading “Specifications” in response to the application's question “(3),” Leone categorized the building's use and occupancy as “Old Law Tenement 6 families and store.” However, further down on the left side of the same page, he describes the “Existing Legal Usage” as: “1st story: 1 apt., 5 room, store & 1 fam., 2nd story: 2 apts. 7 rooms, 2 fam., 3rd story: 2 apts., 6 rooms, 2 fam.” In other words, the existing usage was five apartments and a store. On the right side of the page, under the heading “Proposed Occupancy” the same description is repeated, i.e., the proposed occupancy was for five apartments and a store. Notwithstanding, or perhaps regardless of, this apparent inconsistency on the same page of the application, the City of New York's Department of Housing and Buildings approved the application.

Compagno testified that in his opinion the two entries of “1st story: 1 apt., 5 room, store & 1 fam.” must have been mistakes because they were inconsistent with entries elsewhere that the building was a tenement with six families and a store. He noted that the plan is stamped “Examined for stated work only. No other factor considered” and testified that inasmuch as the inspector inspected only to see whether the water closets had been installed and the violation had been removed, there could be no assurance that the inspector's sign-off meant that he had seen five apartments and one store instead of six apartments and one store. The court finds that this explanation was plausible, but that alternative explanations are plausible as well, e.g., that the specification “Old Law Tenement 6 families and store” was a rote repetition of prior specifications.

In 1960 Ribelle Peroto, a professional engineer, filed an application with the City of New York's Department of Buildings to install a new heating system in the building, upgrading to oil from, as Compagno testified, most likely wood burning. The application described the building as an old frame building 25 feet wide and, erroneously, 30 feet deep. The application also stated that the building was occupied as “cl. A MD store” and that the number of families was “6.” The application was signed by both Peroto and Melillo. The follow-up application in 1961 for a certificate of approval of the installation also stated that the building is occupied as “6 family and store.” However, the City of New York's Department of Finance's property information screen for tax year 2018/2019 provides that the building is in class S5, “primarily 5-6 family with 1 store,” and the Department of Finance's notice of property value for the 2019-2020 tax year also puts the building in class S5 and recites that for units there are “5 residential - 1 non-residential.”


As noted above, in Gracecor Realty Co. v. Hargrove, 90 NY2d 350, 355-56 (1997) the court held that in determining whether an occupied space is a “housing accommodation” it is of cardinal importance to evaluate whether the occupancy is characterized by “indicia of ‘permanency’ ” and whether the parties intended for the space to be occupied as a “residence, home, or dwelling unit.”

Some documents describe the building as having six residences but other documents describe the building as having five. None of these documents were prepared with the objective of fixing the building's status under the Rent Stabilization Code. None of the documents were prepared with the goal of describing the intent and the behavior of the landlord and the occupants, if any, of the different units. At least three of these documents — the yellow I-card, the 1925 alteration application, and the 1953 alteration application — are internally inconsistent. All of these documents are hearsay, i.e., offered for the truth of their contents. While CPLR 4518(c) makes these documents admissible and authorizes the court to draw inferences therefrom, it does not require the court to give the documents any particular probative weight. New Dimension Realty 005, LLC v. Sincere, 189 Misc 2d 32 (App Term, 2nd Dep't, 2001).

The court finds that those who testified (other than Compagno) actually observed, again and again over many years, that to which they testified. The court has much greater confidence in the accuracy of the testimonies, and, accordingly, the court gives to them much greater probative weight than it does to the documents.

The court finds that 1-L was not occupied, either in whole or in part, as a residence, as a home, or as a dwelling unit. The court finds that there was no evidence that any owner/landlord or any occupant of the building intended for 1-L to be occupied either in whole or in part as a residence, home, or dwelling unit. The court finds that the Attoineses' occasional usage of 1-L for family gatherings, rather like in a suburban setting the use of a patio for a July 4th barbecue, did not bear “indicia of permanency,” Gracecor, supra, and was not intended by anyone to transform 1-L, in whole or in part, into a sixth residence, home or dwelling unit.

In support of its position respondent cites 124 Meserole, LLC v. Recko, 2017 NY Slip Op 50686(U) (App Term, 2nd, 11th & 13th Jud Dists, 2017), lv. den., 2018 NY Slip Op 69126(U) (2nd Dep't, 2018), TJA Realty, LLC v. Hermosa, 2017 NY Slip Op 50858(U) (App Term, 2nd, 11th & 13th Jud Dists, 2017), Robrish v. Watson, 2015 NY Slip Op 51299(U) (App Term, 2nd, 11th & 13th Jud Dists, 2015), and Joe Lebnan, LLC. v. Oliva, 39 Misc 3d 31 (App Term, 2nd, 11th & 13th Jud Dists, 2013). These cases, the court holds, are inapposite. In each it was uncontested that the space at issue was occupied as a residence; the issues in those cases were whether the spaces were disqualified by their own illegality from being counted toward the rent stabilization threshold of six household accommodations (Recko, Watson, and Lebnan), and whether the space was located in building which, when taken with a contiguous building, constituted a horizontal multiple dwelling with six or more household accommodations (Hermosa). Here, it is uncontested that 1-L was never occupied as a residence.

Accordingly, the court answers the parties' stipulated question by holding that the subject building contains five residential units/housing accommodations, and the court grants the other relief set out above.

The court will mail copies of this decision to the parties, and they are requested to retrieve their exhibits from the courtroom on or before April 30, 2019, failing which they will be disposed of pursuant to administrative directive.


1.   Respondent's answer includes two counterclaims, one for breach of the warranty of habitability and the other for relief from petitioner's alleged exclusion of respondent from certain storage space in the basement. These counterclaims are hereby severed without prejudice if this result was not already accomplished by the “so ordered” stipulation just mentioned.

2.   The metes and bounds descriptions in the three deeds received in evidence recite that the lot is 90 feet deep. Other documents do as well, e.g., respondent's exhibits J7, J11, and P. However, some documents, such as respondent's exhibit I-2, state that the lot is 95 feet deep.

3.   In some documents her name is given as “Malillo.”

4.   There may have been another door that allowed passage between the front space and the building's common hallway, but Denise Attoinese testified credibly and without contradiction that in her earliest memories of the building, i.e., the early and middle 1960s, that doorway had been permanently sealed.

Gary F. Marton, J.

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Docket No: 59304/16

Decided: March 29, 2019

Court: Civil Court, City of New York.

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