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NUGARESE INC v. “Mario Sota”, “John Doe” & /or “Jane Doe”, Undertenants-Occupants, First and/or last name of the Tenant and/or Undertenant(s) and/or Occupant(s) being fictitious and unknown to Petitioner, Person(s) intended being in possession of the premises herein described. (2020)

Civil Court, City of New York.

NUGARESE, INC., Petitioner-Landlord, v. Joaquina MARTINEZ, Respondent-Tenant, “Mario Sota”, “John Doe” & /or “Jane Doe”, Undertenants-Occupants, First and/or last name of the Tenant and/or Undertenant(s) and/or Occupant(s) being fictitious and unknown to Petitioner, Person(s) intended being in possession of the premises herein described.


Decided: January 30, 2020

Attorney for Petitioner-Landlord: Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, New York 10801, (914) 235-7234 Attorney for Respondent-Tenant Joaquina Martinez: Fuery T. Hocking, Esq., The Legal Aid Society, Civil Practice, Bronx Neighborhood Office, 260 East 161st Street, 8th Floor, Bronx, New York 10451, (718) 579-8152 Respondent-Undertenants-Occupants (Pro Se/Non-Appearing): Mario Sota, “John Doe”/“Jane Doe”

This is a holdover eviction proceeding commenced by Petitioner-Landlord Nugarese, Inc. against Respondent-Tenant Joaquina Martinez by Notice of Petition and Petition returnable March 28, 2018 seeking possession of Apartment B-5 at 2300 Bathgate Avenue in the Bronx. Also named as Undertenants-Occupants are Mario Sota, John Doe and Jane Doe.1 The grounds for the proceeding alleged in the petition are that Respondent, a Rent Stabilized tenant, did not occupy the subject premises as her primary residence and that this proceeding was brought after Petitioner served Respondent with a “Notice of Intention Not to Renew Lease Based upon Non-Primary Residence”, a copy of which is attached to the Petition in the court file.2

Respondent secured counsel after the first court appearance. There were a number of adjournments for various reasons including Petitioner's motion for use and occupancy (granted in part by Decision and Order dated October 15, 2018) and Respondent's motion to dismiss based upon an allegedly defective predicate notice or to consolidate with a previously filed illegal sublet holdover, L & T Index No. 34216/2017 (denied by Decision and Order dated February 6, 2019). Respondent filed her Answer on March 7, 2019 and the case was transferred to a trial part on March 14, 2019. The trial was postponed on consent while awaiting the outcome after trial of the illegal sublet holdover. That case was dismissed by Decision and Order dated August 16, 2019, and this case proceeded to trial on December 4, 2019 and January 10, 2020, with post-trial briefs due by January 24, 2020.


Petitioner's Case

At trial, Petitioner proved through documents admitted into evidence on consent that it is the owner of the premises pursuant to a deed dated May 10, 2004; that the building at 2300 Bathgate Avenue is registered with the City of New York as a multiple dwelling with 27 units; and that Apartment B-5 at 2300 Bathgate Avenue has been registered as a Rent Stabilized apartment in Respondent's name with the State of New York's Division of Housing and Community Renewal (DHCR) in every year from 2001 through 2017. Also admitted into evidence on consent were Respondent's original one-year lease beginning March 1, 2001; her last renewal lease for the period of February 29, 2016 through February 28, 2018; a ledger for Respondent's rent account dated December 3, 2019 showing rent and/or use and occupancy (U & O) arrears of $16,280.15 at the monthly rate of $892.39 (including late charges of $25 per month) for the period of March 2017 through December 2019; and certified copies of checks from the New York City Department of Social Services (DSS) issued for DSS client “Antonio Balbuena”. The DSS checks list as the payee “Martinez J FR Babuena A” at the subject premises for the period of June 2, 2012 through May 24, 2017 and “Nugarese Inc/Balbuena, A” at PO Box 1043 in Yonkers from September 7, 2017 through December 10, 2018.

Petitioner's first witness was Franco Milio, a managing member of the company that owns 2300 Bathgate Avenue, which is managed by Milio Management LLC. Mr. Milio testified that this case was brought because Respondent “essentially has not been living in the apartment”. Mr. Milio testified that he gained entry to Apartment B-5 on December 3, 2017 with the help of the super, who had the keys, and there was no one occupying the apartment. Mr. Milio testified that there were “a couple of moving parts” at that time: there were repairs alleged to be needed in the apartment and “I moved Antonia next door”.

Mr. Milio described Apartment B-5 as having one bedroom, a bathroom and a combined kitchen and living room. He took photographs when he was in the apartment on December 3, 2017, which were admitted into evidence. The photos depict clean and empty kitchen cabinets, refrigerator and stove, no shower curtain or toilet seat in the bathroom and no furniture in the room that Mr. Milio described as a “living room/kitchen area combined”.

On cross-examination when asked whether he went to Apartment B-5 on December 3, 2017 to address complaints about needed repairs Mr. Milio responded, “There was that issue of repairs, and also an issue of the apartment being abandoned. I was confused about what was going on. The lady who used to live there, Antonia, vacated, and we were in Housing Court at the time.” When asked whether he took the photo of the oven because there was a problem with it Mr. Milio answered, “Not that I recall” and testified that what he recalled was being “shocked at how clean it was.” When asked about “Antonia,” Mr. Milio clarified that he was referring to Antonia Balbuena, who had been living in Apartment B-5 at 2300 Bathgate Avenue until he moved her to another apartment in a building he owns next door at 532 East 184th Street, also known as 2310 Bathgate Avenue. Mr. Milio could not recall whether it was himself or his father who signed the lease with Ms. Balbuena. When asked on cross-examination about Mario Sota, one of the named Respondents, Mr. Milio testified that the name did not ring a bell.

Petitioner's second witness was Antonia Balbuena. She was not able to state her address and pulled out a piece of paper from her purse which she testified had her address on it. The address on the piece of paper was 532 East 184th Street, Apartment 4-B, Bronx, New York and Ms. Balbuena testified that as of this coming May she will have lived there for three years. Ms. Balbuena is familiar with Apartment B-5 in 2300 Bathgate Avenue because she lived there for six years before moving to her current apartment, although she could not recall any dates. When she moved in to Apartment B-5 she had a 2-year-old child; about four months after moving in she became pregnant with her second child. They all slept in the apartment's one bedroom together and nobody else lived with them.

Ms. Balbuena testified that she met Respondent on the street; they used to go to dance parties together but were not really friends. Respondent never lived with her in B-5 but lived “in front” with her daughter. Respondent would knock on the door to collect the rent, which Ms. Balbuena paid in cash or money orders. Ms. Balbuena testified that Respondent helped her to secure rent assistance from “welfare”, which was paid to Respondent by checks that came in the mail. Ms. Balbuena testified that Respondent refused to give her a mailbox key, although she repeatedly asked her for one. Ms. Balbuena identified Respondent's signature on some of the DSS checks that had been admitted into evidence.

Ms. Balbuena identified her own signature on her first lease with Petitioner for her current apartment, which was admitted into evidence over objection. The lease runs from June 1, 2017 through May 31, 2018 and Ms. Balbuena's signature is dated May 31, 2017. Ms. Balbuena testified that at the time she signed that lease she was living in Apartment B-5, and that she moved in to her new apartment right away.

On cross-examination, when asked about “Mario Soto” Ms. Balbuena testified that he is the father of her children and that she never lived with him; she explained that “he would just leave me pregnant and he would go away”; she does not know where he is now.

Petitioner's third witness was its resident superintendent at 2300 Bathgate Avenue, Sergilio Grijalva. He testified that he is familiar with Apartment B-5 and that Antonia Balbuena lived there for approximately five or six years. He also knows Respondent, sees her in the street but does not know where she lives. Respondent did not cross-examine Mr. Grijalva.

Respondent's Case

Respondent herself was her only witness. She testified that she has lived in Apartment B-5 at 2300 Bathgate Avenue for approximately nineteen to twenty years, originally with her two children and now by herself. She described the apartment as having one bedroom, a bathroom and a kitchen. When asked if anyone else ever lived with her in Apartment B-5 Respondent answered yes, Antonia Balbuena. Respondent testified that she has known Ms. Balbuena for a long time, that they did not have “a big friendship” and that she invited her to move in with her “when she [Ms. Balbuena] started having problems with her sister” whom Ms. Balbuena had been living with in another apartment on the first floor of the same building. Respondent could not recall when Ms. Balbuena moved in and testified that while initially she expected her to stay for about four or five months Ms. Balbuena stayed for four to five years, moving out in April or May of 2017. Respondent testified that she gave her bedroom to Ms. Balbuena to sleep in and “put a bed in the kitchen” for herself. Respondent initially charged Ms. Balbuena rent of $400. She then helped Ms. Balbuena apply for welfare and Respondent started receiving biweekly welfare checks on behalf of Ms. Balbuena for $141.50 each; Ms. Balbuena also paid $260 per month in cash.

Respondent testified that her daughter lived in Apartment B-2 in the same building, “in the apartment in front of my apartment”, and that she stayed with her daughter after being hit by a car and suffering injuries to her knee, ankle and back on August 5, 2016, for which she was treated at St. Barnabas Hospital. Respondent was unable to walk after that accident because of her injuries. She also experienced dizziness and other side effects from the pain medication. Respondent's daughter helped Respondent after the accident by preparing food and allowing Respondent to stay with her. It took her a year to be able to walk again and she still has not fully recovered.

Respondent testified that she continued to receive mail for Apartment 5-B while she stayed in her daughter's apartment and continued to pay her ConEd bill, except that she fell behind for a while after the accident. Approximately a year after the accident Respondent returned to sleep in Apartment 5-B but it was uncomfortable because now Ms. Balbuena “brought her daughter from Mexico” and her children's father, whom Respondent referred to as “Daniel Soto”, would come to visit the children.

When she started receiving letters from the landlord Respondent told Ms. Balbuena that she had to leave the apartment. Respondent does not know where Ms. Balbuena moved to and testified that she hasn't spoken with her since Ms. Balbuena returned the keys to her. When shown the photographs in evidence that Mr. Milio had taken on December 3, 2017 Respondent acknowledged that they were of Apartment B-5, pointed to conditions in the photos needing repair and testified that in December 2017 she was sleeping in Apartment B-5. The apartment was empty in the photographs because Ms. Balbuena took the bed with her when she moved out and Respondent hadn't yet purchased a new bed or cabinets to put her things in. She could not recall when she purchased her new bed.

Respondent is employed at a printing shop called Beau Label LLC, where she has worked for a long time. She had to stop for a year because of the accident in August 2016. Respondent's federal tax returns for 2016 and 2017 were admitted into evidence on consent and they both list the subject premises as her address. An “Abstract of Lifetime Driving Record” from the New York State Department of Motor Vehicles reflecting issuance of “ID-ONLY” documents on May 1, 2015 and February 12, 2018 and the subject apartment as Respondent's address as of June 19, 2003 was also admitted into evidence on consent, as were two bills addressed to Respondent at the subject premises: one from St. Barnabas Hospital dated August 24, 2016 and one from ConEdison for the billing period ending January 26, 2017.

On cross-examination Petitioner offered into evidence a Decision and Order dated August 16, 2019 dismissing Petitioner's prior illegal sublet holdover proceeding against Respondent, L & T Index #34216/17. Housing Court Judge Lach in that Decision and Order found, after trial, that Petitioner had proven its claim of illegal sublet; however, that claim was dismissed as it was undisputed that Respondent had cured the sublet. Judge Lach also found that Petitioner had failed to meet its burden of proof on its second claim of illegal profiteering.

Respondent acknowledged her signatures on the DSS checks that had been admitted into evidence on consent. She also acknowledged her daughter's signature on some of those checks and explained that, because of problems she had with her own bank account, she deposited those checks into her daughter's account. Respondent also testified that she never gave Ms. Balbuena rent receipts for any rent payments.

Regarding the photographs taken by Mr. Milio on December 3, 2017, Respondent testified on cross-examination that she was not in Apartment B-5 on that day, that she had left the door open for the super to finish working in the apartment and that the super changed the lock and gave her a copy of the key. Respondent could not recall when the lock was changed.

Regarding who lived in the apartment, Respondent testified that her son and daughter used to live with her when they were children. Her daughter moved across the hall to live with her boyfriend at an unspecified time. Her son moved out and in with his sister across the hall when Ms. Balbuena moved in. When asked if she would have continued to let Ms. Balbuena live in her apartment if not for the notices sent by the landlord Respondent answered, “no, because she said she would move to Mexico soon.” When asked when Ms. Balbuena said that Respondent answered, “a long time ago”.

On redirect, Respondent explained that she used to deposit the welfare checks in her own bank account and stopped when that account was closed after the accident and she had no money to deposit. Respondent also testified that she did not change her address while staying with her daughter and never reported to anyone that she was living in Apartment B-2.

Petitioner's Rebuttal Case

Petitioner called one rebuttal witness, Jessica Michaca, who testified that she lives in Apartment A-3 at 2300 Bathgate Avenue and is the niece of Antonia Balbuena. Ms. Michaca testified that her aunt Antonia moved into Apartment B-5 at 2300 Bathgate Avenue approximately seven years ago and moved out approximately two years ago. Ms. Michaca described the apartment as a “semi-studio”, with one bedroom, one bathroom and a living room connected to the kitchen. While her aunt was living in Apartment B-5 Ms. Michaca visited her and her two children there two or three times a week after school and there was never anyone else there. Ms. Michaca would usually stay for three hours to help her aunt and take care of her cousins; sometimes she would also sleep over and be there the whole night. When she did, everyone — she, her aunt and her two cousins - slept in the bedroom and there were no beds in any other part of the apartment. In the kitchen area there was a small table, a small wardrobe, a small couch and a toy box. When asked if she knew Respondent, Ms. Michaca answered yes, she lived with her oldest daughter Kendra across the hall from Antonia's apartment and they would exchange greetings in passing.

Respondent did not cross-examine Ms. Michaca and her attorney's request to recall Respondent as a witness after Petitioner rested its rebuttal case was denied.


The Rent Stabilization Law exempts from coverage apartments “not occupied by the tenant, not including subtenants or occupants, as his or her primary residence”, NYC Administrative Code § 26-504(a)(1)(f); Katz Park Ave Corp v. Jagger (11 NY3d 314, 898 NE2d 17, 869 NYS2d 4 [2008]), and the Rent Stabilization Code provides the mechanism for a landlord to recover possession of such an apartment, 9 NYCRR § 2524.4(c); Glenbriar Co v. Lipsman (5 NY3d 388, 392, 838 NE2d 635, 638, 804 NYS2d 719, 722 [2005]). The Code defines “primary residence” by providing a nonexclusive list of evidence which may be considered in making this determination: documents filed with public agencies such as a tax return, motor vehicle registration, driver's license and voter registration; less than 183 days of occupancy, not including certain temporary periods of relocation; and subletting of the housing accommodation. 9 NYCRR § 2520.6(u); Lesser v. Park 65 Realty Corp (140 AD2d 169, 173, 527 NYS2d 787 [1st Dept 1988]). No one factor is determinative of the outcome and a finding of primary residence may be made entirely upon testimonial evidence. 300 East 34th St Co v. Habeeb (248 AD2d 50, 55, 683 NYS2d 175 [1st Dep't 1997]). The ultimate question is whether the tenant had an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes by objective, empirical evidence”. Emay Props Corp v. Norton (136 Misc 2d 127, 129, 519 NYS2d 90 [App Term 1st Dep't 1987]), quoted in TOA Constr Co, Inc v. Tsitsires (54 AD3d 109, 113, 861 NYS2d 335, 338 [1st Dep't 2008]).

To prevail upon such a claim a landlord must establish by a preponderance of the credible evidence that the tenant did not occupy their apartment as their primary residence. Glenbriar Co v. Lipsman (5 NY3d at 392, 804 NYS2d at 722). It is appropriate in making such a determination for the court to examine the entire history of the tenancy. Glenbriar Co v. Lipsman (11 AD3d 352, 353, 783 NYS2d 546, 547 [1st Dep't 2004], aff'd, 5 NY3d 388, 838 NE2d 635, 804 NYS2d 719 [2005]), citing 615 Co v. Mikeska (75 NY2d 987, 556 NE2d 1069, 557 NYS2d 262 [1990]); Berwick Land Corp v. Mucelli (249 AD2d 18, 671 NYS2d 44 [1st Dep't 1998]); Rocky 116 LLC v. Weston (195 Misc 2d 363, 759 NYS2d 282 [App Term 1st Dep't 2003]); compare 184-188 Claremont Invs, LLC v. Nelson (46 Misc 3d 148[A], 13 NYS3d 851 [App Term 1st Dep't 2015]). Nonprimary residence is not curable, and the time during which a tenant attempts to cure is excluded. Stahl Assoc Co v. State Div of Housing & Community Renewal (148 AD2d 258, 542 NYS2d 982 [1st Dep't 1989]); 45th St Assocs v. Spence (180 Misc 2d 93, 689 NYS2d 355 [App Term 1st Dep't 1999]); Lufkin v. Drago (126 Misc 2d 177, 481 NYS2d 850 [Civ Ct NY Co 1984], aff'd, 129 Misc 2d 1108, 498 NYS2d 334 [App Term 1st Dep't 1985]).

Once the landlord establishes a prima facie showing of nonprimary residence, the burden shifts to the tenant to establish that they maintained the premises as their primary residence. Carmine Ltd v. Gordon (9 Misc 3d 138[A], 862 NYS2d 806 [App Term 1st Dep't 2005]). The ultimate burden of persuasion, however, rests with the landlord.

While Petitioner's evidence was less than overwhelming, and the testimony of both its managing member Mr. Milio and its superintendent Mr. Grijalva were of limited relevance, the Court finds that Petitioner proved through credible and insufficiently rebutted testimony and documents that Respondent moved out of her apartment and did not occupy it as her primary residence for over six years during which time she sublet it to Antonia Balbuena.

Ms. Balbuena testified credibly and consistently that she lived with her children in Respondent's apartment for six years, paid rent to Respondent and that Respondent never lived with them and instead lived across the hall with her daughter. While Ms. Balbuena did not have good recall of dates or addresses, her testimony was otherwise clear and emphatic and the court fully credits her testimony that Respondent never lived with her. The six-year time period she testified to having lived in Respondent's apartment was substantially corroborated by the DSS checks addressed to Respondent on Ms. Balbuena's behalf for the period of June 2, 2012 through May 24, 2017 and Ms. Balbuena's lease for the apartment in the building next door which began June 1, 2017. Further, both Respondent and Ms. Balbuena testified that it was not until some point after Ms. Balbuena moved in that Respondent helped her to apply for welfare. Similarly, Ms. Balbuena's testimony that the length of time she has lived in her current apartment will be three years in May 2020 was corroborated by her lease that began June 1, 2017 and her testimony that she asked the super about getting her own apartment when notices started coming

Ms. Balbuena's niece, Jessica Michaca, who lives in an apartment on the first floor of 2300 Bathgate Avenue, also testified credibly about her frequent and substantial visits to Apartment B-5 during the years that her aunt lived there. She often helped her aunt with her young cousins and even spent the night regularly, sleeping with them in the apartment's single bedroom. She had ample opportunity to observe daily life in Respondent's apartment during those years and the court credits her observations that Respondent did not live with her aunt and instead lived across the hall with her daughter Kendra.

Mr. Milio's testimony, as mentioned above, added little. However, he corroborated Ms. Balbuena's testimony in part by referring to her as “the lady who used to live there” in Apartment B-5, and by confirming that he moved her into an apartment in the adjacent building. Further, the photographs that Mr. Milio took on December 3, 2017 show an empty apartment, without any dishes in the kitchen cabinets, food in the refrigerator or even a toilet seat in the bathroom. Similarly, Mr. Grijalva's relevant testimony was limited to identifying Ms. Balbuena as the person he knew to have been living in Apartment B-5 for approximately five or six years and indicating that he knows who Respondent is, but does not know very much about her and does not know where she lives.

While the illegal sublet holdover was dismissed because Respondent had cured by the time of trial, it is significant that the Court in its Decision and Order found that Respondent had in fact illegally sublet her apartment. Subletting of an apartment is one of the factors listed in the Rent Stabilization Code's definition of primary residence for this court to consider in making its determination. 9 NYCRR § 2520.6(u)(4); and see Rahi v. Nehari (2018 NY Misc LEXIS 3152, 2018 NY Slip Op 31707[U][Civ Ct NY Co 2018]).

Respondent, on the other hand, presented a paucity of credible evidence to demonstrate that she maintained an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes”, Emay Props Corp v. Norton, supra, throughout the relevant period. Respondent's testimony that until her accident in August 2016 she lived with Ms. Balbuena and her children in Apartment B-5, gave them the bedroom and bought a bed for herself that she slept on in the kitchen was simply not credible. Even if they had been the closest of friends — which was not how either Respondent or Ms. Balbuena described the other — the arrangement as described by Respondent was so untenable as to defy credibility. There was no credible evidence of any reason why Respondent would have done what she testified to. Further, Respondent's testimony that she returned to live with Ms. Balbuena a year after the accident is inconsistent with the fact that Ms. Balbuena moved into her own apartment in the building next door as of June 1, 2017, ten months after Respondent's accident. Respondent also offered no credible explanation for why Apartment B-5 was empty of all furnishings on December 3, 2017 when Mr. Milio took photographs after being let into the apartment not by Respondent but by the building's superintendent.

Not only was Respondent's testimony that she slept on a bed in the kitchen for four or five years while Ms. Balbuena and her two young children slept in the bedroom not credible, but Respondent failed to present any corroborating evidence. Respondent called no witnesses other than herself, offered no explanation for the lack of witnesses and did not cross-examine two out of Petitioner's four witnesses (the super Mr. Grijalva and Ms. Balbuena's niece Ms. Michaca). Respondent did not even present the testimony of her own daughter, who lived across the hall from Apartment B-5 in Apartment B-2, nor of her son whom Respondent testified had moved out of Apartment B-5 and in with his sister in Apartment B-2 when Ms. Balbuena moved in.

Respondent's documentary evidence showing her residence at the subject apartment was of little or no probative value. First, the documentary evidence was scant, consisting of just five items dating back no more than two or three years prior to the commencement of this proceeding: federal tax returns for 2016 and 2017; an abstract from the New York State Department of Motor Vehicles showing issuance of non-driver's identification cards to Respondent on May 1, 2015 and February 12, 2018; a bill dated August 24, 2016 from St. Barnabas Hospital; and a ConEdison bill for the period ending January 26, 2017. While the law is clear that it is appropriate for this court to examine the entire history of the tenancy, see 615 Co v. Mikeska, supra, Respondent presented very little evidence to illustrate the history of her tenancy. Second, Ms. Balbuena credibly testified that throughout the six years she lived in Apartment B-5 Respondent maintained control over the mailbox, received welfare checks for Ms. Balbuena's rent in that mailbox and refused to give her the key. Given Respondent's exclusive access to the mailbox for Apartment B-5, there was no reason for her to change her mailing address to her daughter's Apartment B-2 in the same building. Under these circumstances, the few pieces of mail and other documents addressed to Respondent in Apartment B-5 in the years of 2015 through 2017 do not constitute proof that she lived there.

Respondent makes much of the fact that Petitioner's managing member Mr. Milio testified that he was not familiar with Mario Sota, even though he is named as a respondent “Occupant-Undertenant” in the petition and the predicate notice of nonrenewal includes the statement that, “The landlord has inquired of your neighbors, as well as ‘Mario Sota’ who have confirmed that they have rarely if ever seen your presence in or around the Apt. B-5.”3 While Mr. Milio's testimony may have been surprising, Mr. Milio is not the only member of the corporate Petitioner and it could have been someone else who works for Petitioner that spoke with Mario Sota before commencing this proceeding. In any event, as explained by the Appellate Term, First Department, “Absolute synchronicity between the trial evidence and the allegations set out in a predicate notice is not required.” Budhu v. Castro (34 Misc 3d 36,37, 937 NYS2d 526, 527 [App Term 1st Dep't 2011]); Horsford v. Bacott (5 Misc 3d 132[A], 798 NYS2d 710 [App Term 1st Dep't 2004]); Rocky 116 v. Weston (195 Misc 2d 363, 365, 759 NYS2d 282 [App Term 1st Dep't 2003]). Whether the information Petitioner obtained that led to the filing of this proceeding was provided by Mario Sota — whom Ms. Balbuena testified was the father of her children, who visited but did not live in the apartment — or by someone else, is of no moment. The absence of testimony at trial about this aspect of Petitioner's predicate notice does not render that notice so unreasonable as to warrant dismissal of this proceeding “in view of all attendant circumstances”. Hughes v. Lenox Hill Hosp (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996]).

Respondent's argument that the inconsistency between the evidence presented at trial and the facts alleged in the predicate notice renders the notice defective and warrants dismissal of the proceeding is unavailing and the two cases Respondent cites are inapposite. In Grace Towers Apts v. McCrae (2019 NYLJ LEXIS 1785 [Civ Ct Kings Co 2019] ), a holdover based upon the tenant's alleged violation of the lease and accompanying Crime Free Lease Addendum, the landlord had alleged in its predicate notice that a frequent guest of the tenant had been arrested in the apartment on a specific date after selling marijuana to undercover police officer. However, at trial, no evidence was proffered to show that the alleged sale took place at any specific location, much less inside the tenant's apartment, and the court found not only that the predicate notice was fatally defective “as it wholly misstates the facts” but also that the landlord failed to prove its prima facie case. In 2268 Church Ave, LLC v. Clarke (48 Misc 3d 127[A], 18 NYS3d 581 [App Term 2nd Dep't 2015]), the appellate court affirmed the trial court's dismissal of the petition in a holdover proceeding predicated upon a termination notice and petition alleging that there was a tenancy “by monthly hiring” where there was no proof introduced at trial to support these allegations and no motion to conform the pleadings to the proof. Here, Petitioner introduced credible, insufficiently rebutted proof at trial to support the claim that Respondent was maintaining her primary residence in a location other than her apartment for an extended period of time.

To the extent Respondent believes that Petitioner may not have had a good faith basis for some of the allegations in its predicate notice, “the appropriate remedy, if any, for any material falsehoods that may be contained in the notice would be the imposition of Rule 130 (22 NYCRR 130-1.1) sanctions, not outright dismissal of the proceeding.” Budhu v. Castro, supra.


Accordingly, the petition is granted and the Court awards a judgment of possession to Petitioner. The warrant of eviction shall issue forthwith, execution stayed through April 30, 2020 to provide Respondent time to vacate the premises, conditioned upon her continued payment of U & O at the rate of $893 per month by the 15th of each month for the months of February, March and April 2020. As there was no testimony that anybody other than Respondent-Tenant Joaquina Martinez currently resides in the subject premises, the petition is dismissed as against the alleged Undertenants-Occupants Mario Sota, John Doe and Jane Doe.

The Court also awards Petitioner a money judgment for $14,562.76 against Respondent, representing all unpaid rent and/or U & O due through November 30, 2019 4 without prejudice to any claim Petitioner may have for additional U & O due after November 30, 2019. The parties' attorneys may pick up their documents that were submitted into evidence as trial exhibits from the Part S/T Clerk (in either Room 409 or 410 at 851 Grand Concourse, Bronx, New York) within thirty days or they may be disposed of in accordance with Administrative Directives. This constitutes the Decision and Order of this Court, copies of which will be mailed out as listed below unless picked up forthwith from the Part.


1.   As Joaquina Martinez is the only Respondent to appear, the term “Respondent” hereinafter refers solely to Ms. Martinez, unless otherwise stated.

2.   A copy of the “Notice of Intention Not to Renew Lease”, also known as a “Golub notice”, see Golub v. Frank (65 NY2d 900, 483 NE2d 126, 493 NYS2d 451 [1985]), is attached to the Petition in the court file. While the Golub notice refers to “the annexed notice to cure and notice to terminate” from a prior illegal sublet holdover proceeding under L & T Index # 34216/17, no such additional notices actually are attached to the petition that was filed with the court in this proceeding.

3.   As the notices from the prior illegal sublet proceeding were not actually attached to the copy of the Golub notice that is attached to the original Petition that was filed with the court in this proceeding, see fn 2, supra, this Court is not addressing any allegations in those notices at this juncture.

4.   The court has subtracted from the “Balance Due” the monthly late fee of $25.00 listed on Petitioner's rent ledger for thirty-three months. The court also has omitted the U & O charge of $892.39 for December 2019, without prejudice. This is because the court can see from the ledger that Petitioner received a U & O payment of $893 for every month from October 2018 through November 2019, as per the Decision and Order of October 15, 2018 granting Petitioner's U & O motion. Since most of those payments are credited on or around the 11th or 12th of each month, and the ledger admitted into evidence is dated December 3, 2019, based on the pattern reflected in the ledger it is likely that Petitioner received a U & O payment from Respondent of $893 for December 2019 approximately a week after the ledger was printed.

Diane E. Lutwak, J.

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NUGARESE INC v. “Mario Sota”, “John Doe” & /or “Jane Doe”, Undertenants-Occupants, First and/or last name of the Tenant and/or Undertenant(s) and/or Occupant(s) being fictitious and unknown to Petitioner, Person(s) intended being in possession of the premises herein described. (2020)

Docket No: 14983/2018

Decided: January 30, 2020

Court: Civil Court, City of New York.

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