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Civil Court, City of New York.

CHELSEA PARTNERS I, LLC, Petitioner(s), v. Marcelo ROMANO; “John” “Doe”, Respondent(s).


Decided: January 21, 2020

Fischman & Fischman, New York City (Doreen Fischman of counsel), for petitioner. Mobilization for Justice, Inc., New York City (Michael Pereira of counsel), for respondent.

The Decision/Order in these consolidated Motions is as follows:

This is holdover proceeding. According to the notice to cure, respondent is in violation of a substantial obligation of his tenancy. Specifically, the notice indicates that it has “come to the Landlord's attention” that respondent is occupying the premises for residential use in violation of the building's certificate of occupancy (“C of O”). The C of O for the building shows that the first floor contains art studios not permissible for living and several commercial stores. The subject premises is described as apartment 1A on first floor. According to the petition, respondent is a month to month tenant living in a multiple dwelling building but the tenancy is not subject to rent regulation. However, the subject building per the multiple dwelling registration has sixteen class “A” residential units and was built before 1974. (Respondents - Exhibits L & M).

Pursuant to an October 12, 2018 decision of the Honorable Judge Daniele Chinea, petitioner was ordered to respond to respondent's Notice to Produce Documents within 45 days of service and filing of Notice of Entry of the decision. Judge Chinea found that the rent regulatory status of the subject premises was relevant to petitioner's holdover action. The matter was marked off calendar.


Now, petitioner moves to restore the matter and for summary judgment. Specifically, petitioner contends that it is entitled to summary judgment because the subject premises is being used for residential purposes in violation of the C of O, that is has proven its prima facie case with certified copies of the deed 1 , multiple dwelling registration, and that respondent occupied the premises pursuant to a written lease which has expired. (Exhibits B, E & F). According to Elizabeth Novotny, petitioner's managing agent, while the matter was marked off calendar, it made an application to the New York City Department of Buildings (“DOB”) to convert the commercial studio space to a class “A” apartment for residential use. (Aff'd Novotny ¶ 22). Ms. Novotny states that DOB denied the application. DOB found in a Notice of Objection dated January 25, 2019 that converting the studio on the first floor to residential use is contrary to the zoning resolution for zoning district C6.2 (Aff'd Novotny ¶ 23); (Exhibit D, Notice of Objections). On the bottom of the Notice of Objection form there is language from DOB indicating that applicant can address the objections with the Plan Examiner. Then, according to petitioner, it engaged the services of an architect to apply to NYC/DOB to convert the unit's use from commercial to residential use. (Aff'd Novotny ¶ 24). Its proof of such application to DOB is annexed to the motion in chief. (Exhibit G). Then, suddenly without further justification, petitioner leaps forward to conclude that the mere filing of the application by its architect has exhausted its right to seek to utilize the premises for residential use. Hence, it claims its application has been totally denied. However, there is no proof in Exhibit G that the application was denied and even if it was, there is no proof that petitioner has exhausted its remedies to convert the unit. Actually, respondent in opposition argues that petitioner can try to get a variance and has failed to do so. (Aff'd Romano ¶15).

Summary judgment is appropriate where the movant establishes the claim by tender of evidentiary proof in admissible form sufficiently to warrant the court as a matter of law to direct judgment in its favor. Rodriguez v. City of New York, 31 N.Y.3d 312, 317, 76 N.Y.S.3d 898, 101 N.E.3d 366 (2018); Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). In determining the motion, the Court must be mindful that summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 (1978).

Here, petitioner has not submitted admissible evidentiary proof to warrant summary judgment in its favor as to the illegal occupancy for several reasons. First, some of the documents submitted in support of the motion are not in admissible evidentiary proof or are contradictory. For example, the deed for the subject building submitted in support of the motion is a copy and not an original certified copy of the deed nor is the C of O an original certified copy. (Exhibits B & E). Also, there is conflicting information on the building's zoning district being either M 1-5 or C6-2A.

Second, simply because an apartment is illegally occupied does not render it exempt from rent stabilization,3 thereby, warranting no grounds under the Rent Stabilization Code for termination of the tenancy. Courts have found that even where occupancy of an apartment is illegal, or a violation has been placed for the illegal occupancy, the Rent Stabilization Code bars termination of the tenancy unless the apartment cannot be legalized. C & E Assocs. LLC v. Hernandez, 2008 N.Y. Misc. LEXIS 3087 (Civ. Ct. NY Cty 2008).

Here, respondent in his affidavit in support of his cross motion submits that petitioner has not presented evidence that it tried to obtain a variance 4 for a zoning modification from the DOB and Board of Standards and Appeals to legalize his apartment. This is especially appropriate since his apartment already fits in with the residential nature of the building and neighborhood. (Romano Aff'd ¶s 14 & 15). Therefore, he argues that petitioner has thus far not exhausted its remedies to legalize the unit.

Based on all the above, this Court finds that petitioner has failed to show in its motion papers and exhibits 5 for summary judgment that as a matter of law it warrants judgment in its favor nor has it shown that it truly exhausted its remedies to have the building's certificate of occupancy amended or that it would be unduly burdensome to do so. Zaccaro v. Freidenbergs, 10 Misc. 3d 143(A), 2006 WL 211717 (AT 1st Dep't 2006); 625 W. End, Inc. v. Howard, 2001 N.Y. Slip Op. 40496(U), 2001 WL 1682615 (AT 1st Dep't 2001). Accordingly, petitioner's motion for summary judgment is denied.


First, respondent cross moves for summary judgment arguing that the subject premises is rent stabilized, and petitioner failed to plead the correct regulatory scheme. He argues that petitioner has no cause of action to evict him, under the rent stabilization law. Specifically, respondent contends that petitioner did not serve him with the required predicate notice to support a cause of action for illegal use. Further, respondent claims that petitioner was the one who created the illegal occupancy by renting to him the subject premises for residential use in 2010. (Romano Aff'd ¶ 3). When he moved into the subject premises, the landlord offered him a lease. (Romano Aff'd ¶ 4). The unit has a kitchen, bathroom, small area for living room and bedroom with its own entrance and exit. (Romano Aff'd ¶ 6).

Petitioner in opposition relies on Wolinsky v. Kee Yip Realty Corp., 2 N.Y.3d 487, 779 N.Y.S.2d 812, 812 N.E.2d 302 (2004) for the proposition that commercially leased units that were converted to residential units were denied rent stabilization coverage by the Court of Appeals. However, petitioner's reliance on Wolinsky, supra, is misplaced for the reasons discussed below. First, the building in Wolinsky was located in a zoning district in which it could not be legally converted to residential. Here, the subject building already has sixteen class A residential units per the C of O, and the zoning allows mixed commercial and residential use. Second, the units in Wolinsky involved loft spaces, whereas, the unit here, it is an artist studio. Third, in Wolinsky there was no residential C of O, unlike here, there is a C of O and it authorizes residential use.

In order for this Court to grant respondent's motion for summary judgment, there needs to be a determination solely on the papers whether or not his tenancy is rent regulated. If respondent is rent stabilized, then clearly he is entitled to judgment in his favor dismissing the petition, because the petition does not state grounds for eviction under the Rent Stabilization Code. See 9 NYCRR 2524.1 (a). While this Court agrees with respondent's legal argument that basic conditions such as age and the number of residential units in a building may create a presumptive determination of rent stabilization, the certificate of occupancy and zoning provisions of this subject building do not make such presumptive determination automatic. If this Court solely on the papers were to follow the presumptive finding that the subject premises is rent stabilized because it is located in a building built before 1974, and there are more than six residential units in the building, then it would essentially equate to it granting a variance for residential use of the subject premises without administrative authorization. Schwartz v. Seidman, No. L & T 83950/2001, 2003 WL 22231538, at *6 (N.Y. Civ. Ct. Sept. 19, 2003). The Board of Standards and Appeal is the appropriate administrative forum for such relief and not this Court. Along with this reasoning, it extends that herein there needs to be a trial on all the issues with specific focus on whether petitioner has exhausted its ability to legalize the subject premises before DOB and the Board of Standards and Appeal. Accordingly, respondent's cross motion for summary judgment is denied.

Alternatively, respondent argues that the petitioner has another option available to legalize the premises. He argues that pursuant to the amended Loft Law, MDL § 281 (5), there is a qualifying window period under which residential units may qualify for coverage as Interim Multiple Dwelling (“IMD”). This qualifying new window period pertains to units in buildings like the subject building with more than three residential units between January 1, 2008 and ending in December 31, 2009. Madeline D'Anthony Enterprises, Inc. v. Sokolowsky, 101 A.D.3d 606, 607, 957 N.Y.S.2d 88 (1st Dep't 2012).

Second, respondent cross moves for partial summary judgment on his rent overcharge claim in his answer. Respondent contends that the document production indicates that petitioner began residentially renting the subject premises, at least as early as 2003 with an initial monthly rent of $1,190. Also, he contends that petitioner failed to provide him or any other former tenants with rent stabilized leases, and petitioner is prohibited from collecting any rent increase whatsoever. Therefore, he argues that the legal rent on the base date of his overcharge claim should be at most $1,190. For all the reasons discussed in the denial of respondent's cross motion for summary judgment, the request for partial summary judgment on rent overcharge is denied as there are issues of fact regarding a trial on the matter.


Lastly, respondent cross moves pursuant to CPLR § 3124 to compel compliance with Judge Daniele Chinea's discovery order dated October 12, 2018. Also, respondent cross moves pursuant to CPLR § 3126 for penalties against petitioner for non-compliance with the order. Specifically, respondent asserts that petitioner did not provide the following: (a) information relating to tax credits granted to the subject building (i.e. J-51 tax abatement), (b) whether it has attempted to obtain a variance, and (c) rent ledgers showing the rents in effect when he first moved into the building relevant to the rent overcharge claim.

Petitioner in opposition argues that there is no basis for relief under CPLR § s 3124 & 3126. According to Elizabeth Novotny in her affidavit in opposition to the cross motion, petitioner produced a “plethora of documents” in response to the Notice to Produce and even points to Respondent's Exhibits G and H in the cross motion which contain copies of their responsive documents to the Notice to Produce.

This Court has thoroughly reviewed Respondent's Exhibits G and H and did not come across tax credit documents for the subject building (i.e. J-51 tax abatement), or any variance applications nor rent ledgers showing the rents in effect when respondent first moved into the building. Petitioner's counsel in her Response to Notice (Respondent's Exhibit G) on page 6, paragraph 9 indicates that there are no tax credits related to the building. However, this is contradicted by Elizabeth Novotny's prior statement in another affidavit where she admits the building received a J-51 tax abatement, after substantial rehabilitation. (Respondent's Exhibit E, Novotny Aff'd ¶s 25 & 26). Hence, petitioner needs to explain this contradiction in a supplemental affidavit. Also, petitioner must explain why it failed to provide copies of rent ledgers showing the rents in effect, when respondent first moved into the building and reasoning why no variances have been sought to legalize the unit. All of the outstanding responses must be provided to respondent's counsel within 30 days of the date of this decision and order.

The Court declines to penalize petitioner under CPLR § 3126, as petitioner substantially complied with Judge Chinea's discovery order and petitioner's behavior does not rise to the level of being “willful and contumacious.” The matter is adjourned to March 5, 2020, Part F, Room 830 at 9:30 a.m. for all purposes.

This is the decision and order of this Court. Copies of this decision to be mailed and emailed to the parties.

ORDERED: Petitioner's motion for summary judgment is denied.

ORDERED: Respondent's cross motion for summary judgment is denied.

ORDERED: Respondent's cross motion for partial summary judgment is denied.

ORDERED: Respondent's cross motion to compel is granted in part and denied in part.


1.   The annexed Exhibit E “certified” copy of the deed is only a copy and not a certified original copy.

2.   The Court notes that the C of O for the building indicates zoning district M 1-5 but the Notice of Objection indicates the building's zoning district is C6-2A. This is a conflicting issue of fact.

3.   It is respondent's argument in the cross motion for summary judgment that the subject premises is or should be rent stabilized.

4.   “In order to obtain a variance, New York City Zoning Resolution § 72-21 provides that five requirements must be met: (a) there must be unique physical circumstances, including irregularity, narrowness or shallowness of lot size or other physical conditions peculiar to the zoning lot, and that as a result of such conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or building provisions of the Zoning Resolution; (b) the land in question cannot yield a reasonable return if used only for a purpose allowed by the Zoning Resolution; (c) the variance, if granted, will not alter the character of the neighborhood or district where the land is located; (d) the practical difficulties or unnecessary hardship have not been created by the owner (except that, where all other findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship); and (e) the variance is the minimum necessary to afford relief.” Soho All. v. New York City Bd. of Standards & Appeals, 264 A.D.2d 59, 62, 703 N.Y.S.2d 150 (1st Dep't 2000) aff'd, 95 N.Y.2d 437, 718 N.Y.S.2d 261, 741 N.E.2d 106 (2000).

5.   Including inadmissible exhibits (i.e. deed and C of O).

Frances A. Ortiz, J.

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