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Civil Court, City of New York.

Nicole DUNCAN, Petitioner, v. Angelique CALDWELL, Respondent.

L & T 13235/18

Decided: July 08, 2019

For Petitioner S. Gary Moorley, Esq. Mitofsky, Shapiro, Neville & Hazen LLP. 152 Madison Avenue, 3rd Floor New York, NY 10016 (212) 736-0500 For Respondent Gina Mitchell, Esq. BOOM!Health Legal Services Gabriel Fonseca, Esq. Of Counsel to Jeanette Zelhof, Esq. Mobilization for Justice, Inc. 424 East 147th Street, 3rd Floor Bronx, New York 10038 (212) 417-3700



Notice of Motion, Affidavits & Affirmation Annexed1-3

Answering Affidavit16-18

Replying Affidavits & Affirmation Annexed31

Supplemental Affirmation in Opposition33

Exhibits4-15, 19-30, 32


Petitioner commenced this “no grounds” holdover proceeding on or about March 5, 2018, seeking to recover possession of Apartment No.1R located at 4034 Lowerre Place, Bronx, New York. The petition alleges that the apartment is not subject to Rent Control or the Rent Stabilization Law of 1969, as amended, because it is a four-family dwelling.

The proceeding first appeared on the Court's calendar on March 16, 2018. It was then adjourned for Respondent to seek counsel and for the appointment of a Guardian Ad Litem for Respondent. Respondent subsequently retained counsel, and the proceeding was adjourned for motion practice.

Respondent now seeks an order dismissing the petition pursuant to CPLR § 3211(a) (7) alleging Petitioner's failure to state a cause of action based on her claim that this Court lacks the subject matter jurisdiction to hear Petitioner's claim for possession as the apartment is subject to Rent Stabilization and Petitioner failed to serve Respondent with a proper predicate notice stating a ground for eviction as required by the Rent Stabilization Code (“RSC”).

Specifically, Respondent argues that her apartment is rent stabilized because it was built prior to 1974 and the building contains at least six units. According to Respondent, the Department of Housing Preservation and Development (“HPD”) issued violations dated July 2, 2008 for the construction of unlawful apartments in the cellar of the building. In addition, Respondent asserts that the NYC Environmental Control Board (“ECB”) has issued six violations between 1999 and 2005, confirming evidence of single room occupancies (“SROs”) in the cellar, and that in 2009 a job application was filed with the Department of Buildings (“DOB”) to legalize the cellar and to remove the violations 1 .

In opposition, Petitioner contends that the certificate of occupancy for the subject property indicates that it is a four-unit dwelling and that the ECB and HPD violations do not render the premises rent stabilized as the units were illegal. Petitioner argues that the alterations were created by illegal trespassers and therefore the cellar SROs did not have the requisite indicia of permanence to qualify as housing accommodations. In addition, Petitioner contends that the illegal alterations were done without Petitioner's permission and that they were removed twelve years before Respondent moved into the subject premises. Petitioner further argues that even if the apartment was rent stabilized, it was removed from rent stabilization by virtue of the substantial rehabilitation performed in the building. Petitioner also submitted a Letter of Verification (“LOV”) it obtained from the DOB which verifies that the subject premises is a four-family dwelling.

In reply, Respondent argues that the ECB and DOB violations are prima facie evidence that the apartment is rent stabilized and that a determination as to whether the apartment was deregulated is premature at this juncture because Petitioner has not obtained a DHCR order stating that the building underwent substantial rehabilitation therefore exempting the apartment from rent regulation.

At the outset the Court notes that Respondent seemingly moves pursuant to CPLR § 3211 (a) (2) for lack of subject matter jurisdiction and pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action. As the Court's subject matter is conferred by statute to hear housing court matters, the Court will treat this motion as a motion to dismiss made pursuant to CPLR § 3211 (a) (7) (see Birchwood Towers #2 Assoc. v. Schwartz, 98 AD2d 699, 700 [1983]; 5670 58 St. Holding Corp. v. ASAP Towing Servs., Inc., 57 Misc 3d 137[A], 2017 NY Slip Op 51302[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 17th Holding v. Rivera, 195 Misc 2d 531, 532 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; cf. Clarke v. Wallace Oil Co., 284 AD2d 492, 493 [2001]).

Pursuant to CPLR § 3211, a party may move for judgment dismissing one or more causes of action asserted against him. “On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction․we accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 [1994]) (internal quotation marks and citation omitted). For a motion made pursuant to CPLR 3211(a) (7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Martinez at 88).

It is well-settled that in a building built before January 1, 1974, “once [it] contains six or more units, all the units in the building are brought under rent stabilization” and “the rent-stabilization status continues even if the number of units is subsequently reduced to less than six” units (124 Meserole, LLC v. Recko, 55 Misc 3d 146 (A), 58 NYS3d 874 [App Term 2d Dept, 2nd, 11th and 13th Jud Dists 2017] ) (internal quotation marks and citation omitted). It has been held that where the alteration is done by the “owner or with the owner's knowledge to contain six or more units, all the units in the building are brought under rent stabilization” (Beverly Holding NY, LLC v. Blackwood, 63 Misc 3d 160(A), 2019 NY Slip 50877 [U] ). In addition, “the units need not be legal or in conformity with building-code or other requirements” (id.) Nor is it of any consequence that the illegal use of the building has ended (see Rashid v. Cancel, 9 Misc 3d 130[A], 2005 NY Slip Op 51585[U] [App Term 2d, 2nd & 11th Jud Dists 2005]).

The RSC 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” (RSC [9 NYCRR] § 2520.6 [a] ). Under this definition, an individually rented room in a rooming house is a housing accommodation, and therefore a building with six or more individually rented rooms is subject to rent stabilization, regardless of whether any structural changes were made to the premises (see Matter of Gracecor Realty Co. v. Hargrove, 90 NY2d 350 [1997]).

The facts here reveal that the subject building was built prior to 1974, and Petitioner asserts that she purchased the property from her mother sometime in 2001. At the time Petitioner purchased the property there had already been an ECB violation issued for alteration of the property to more occupancies than permitted. But then in 2004 and 2005, Petitioner herself was issued violations for the continued violation of the SRO condition. Specifically, the violation issued in 2005 is for work performed in the cellar without permits and partitions erected to create six rooms. Petitioner's subsequent correction of the SRO condition does not exempt the premises from rent stabilization, and Petitioner's claim that illegal trespassers created the subdivision does not exempt the building from rent regulation. As noted by the ECB hearing officer, although Petitioner denied having created the SRO condition in the building, Petitioner as the owner of the property is the responsible party.

The facts in this case mirror the fact in Ortiz v. Sohngen, 56 Misc 3d 19, 50 NYS3d 239 (App Term, Second Dept, 2d, 11th and 13th Jud Dists) where the Appellate Term affirmed an order of the lower court dismissing the petition. In Sohngen, the Respondent sought an order dismissing the petition based on her claim that the premises were subject to rent regulation because it was contained within a building containing more than six residential units and because the petition was defective as it failed to accurately state the regulatory status of the building. The Respondent in Sohgen relied on an ECB violation issued to her landlord for altering the building's occupancy to an illegal 10-family dwelling, and evidence that after an administrative hearing her landlord had been found to be in violation of the law.

Given that Respondent is subject to rent stabilization, she “can [only] be evicted ‘upon one of the grounds set forth in section 2524.3 of the RSC [9 NYCRR] and only after being served with the notices required under section 2524.2 of the code’ ” (Recko at 3). And, as noted by the Court in Cancel “if, as landlord claims, [s]he was unaware, when s[he] purchased the building, that the basement had been used as a housing accommodation, landlord's remedy, if any, would lie against the prior owner. However, landlord's alleged lack of knowledge does not give rise to an exemption from rent stabilization since landlord acquired the building ‘subject to those rights and protections enjoyed by the building's tenants at the time of acquisition” (Cancel at Misc 3d 130 [A] ).

Based on the foregoing, Respondent's motion is GRANTED. The Clerk of the Court is directed to prepare a judgment in favor of Respondent dismissing the petition.

This constitutes the decision and order of the court.


1.   The documents were produced pursuant to subpoena and are certified records from the NYC DOB.

Christel F. Garland, J.

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