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520 TINTON v. UNITED (2020)

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Civil Court, City of New York.

520 TINTON, L.P., Petitioner-Landlord, v. Harlem UNITED, Respondent-Tenant, “John Doe” and/or “Jane Doe”, Undertenants-Occupants.


Decided: June 25, 2020

Attorney for Petitioner-Landlord: Boris Lepikh, Esq., Law Offices of Todd Rothenberg, 271 North Avenue, Suite 115, New Rochelle, New York 10801, (914) 235-7234, Attorney for Respondent-Tenant Harlem United: Carla P. Bautista, Esq., Alan J. Bennett, PLLC, 369 Lexington Avenue, Suite 213, New York, New York 10017, (212) 696-2116, Attorney for Respondent-Undertenant “Jane Doe”, Lawrence C. Fox, Esq., Assigned Counsel Project and Single Stop/Housing, The Legal Aid Society, Bronx Neighborhood Office, 260 East 161st Street, Bronx, New York 10451, (929) 288-4633, Guardian Ad Litem for Respondent-Undertenant “Jane Doe“, Thomas Giles,

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent-Tenant HARLEM UNITED's Motion to Dismiss, for Summary Judgment and other relief:

Papers Numbered

Respondent's Notice of Motion, Affirmation, Affidavit & Exs A-D 1,2,3,4-7

Petitioner's Affirmation, Affidavit & Ex 1 in Opposition 8, 9, 10

Respondent's Reply Affirmation 11


In this nonprimary residence holdover eviction proceeding, respondent-tenant Harlem United  1 moves to dismiss the petition pursuant to CPLR R 3211 and R 3212 for failure to state a cause of action and for “being defective on its face and/or satisfied”. Harlem United also moves for summary judgment on its two counterclaims, the first seeking an order compelling petitioner to offer it a Rent Stabilized renewal lease and the second seeking attorney's fees and costs.

The petition, filed with the court on September 9, 2019, asserts that the premises are subject to the Rent Stabilization Law of 1969 and that Harlem United was the tenant of record pursuant to a written rental agreement which expired on August 31, 2019. The petition further asserts that Harlem United “is a nonprofit entity and has rented the subject premises pursuant to government funding and is not entitled to a lease renewal” and that it does not occupy the subject premises as its primary residence, in breach of Sections 2524.2 and 2524.4(c) of the Rent Stabilization Code (RSC).

Attached to and incorporated by reference in the petition is a “Notice of Intention Not to Renew Lease Based Upon Non-Primary Residence” dated May 30, 2019 addressed to “Harlem United Inc.-Tenant” and undertenants John and Jane Doe. The notice states that the landlord elects to terminate the tenancy pursuant to the same RSC provisions cited in the petition on the grounds of nonprimary residence based on the fact that the tenant is a business entity which, “by its very definition”, does not have a primary residence in which it resides, and that its lease “does not contain an individual who is designated to reside in the subject premises.” Further, “By virtue of the above you could not possibly reside in the subject premises, or any premises for that matter.”

Harlem United argues on this motion that the petition should be dismissed as it is a Rent Stabilized tenant entitled to a renewal lease as a matter of law, citing to 2363 ACP Pineapple, LLC v. Iris House, Inc (55 Misc 3d 7, 49 NYS3d 216 [AT 1st Dep't 2017]), and Part J of the Housing Stability and Tenant Protection Act of 2019 (HSTPA). In support, Harlem United submits the affidavit of its Senior Director of Property Management, Selena Cauldwell, who asserts that Harlem United is a not-for-profit agency that provides supportive programs and services to a certain population of vulnerable, impoverished individuals. Harlem United rents “scatter site” residential apartments for its clients to live in pursuant to written “Occupancy Agreements”, and “it is not uncommon that during the course of the tenancy of such an apartment, that different Clients may at different times occupy and reside therein.” Cauldwell Affidavit at ¶ 4.

Attached to the motion papers are various documents including a printout from the New York State Department of State's website showing that respondent-tenant is an active domestic nonprofit corporation  2 whose address for service of process is 306 Lenox Avenue, 3rd floor, New York, New York 10027. Also attached to the motion papers is a copy of a renewal lease between the parties dated January 23, 2019 for the two-year term of September 1, 2017 through August 31, 2019 with an accompanying rider in which petitioner acknowledges that Harlem United's mailing address is at 306 Lenox Avenue.

In opposition, petitioner submits the affidavit of its agent Gabe Finkel, who points out that the renewal lease dated January 23, 2019 identifies only the corporate tenant and not any individual and asserts, upon information and belief, that Harlem United provides its clients with “temporary housing and temporary services,” Finkel Affidavit at ¶ 5, not permanent housing.

Petitioner argues that: (1) the Appellate Term's 2017 decision in 2363 ACP Pineapple LLC v. Iris House does not bar this proceeding, the merits of which are supported by other caselaw; (2) Part J of HSTPA does not apply as it amended only the Emergency Tenant Protection Act of 1974 (ETPA); and, alternatively, (3) while HSTPA's amendment to ETPA § 5(a)(11) states that a nonprofit's affiliated subtenants are deemed to be tenants if they are provided with “permanent housing” and are “individuals who are or were homeless or at risk of homelessness”, since Harlem United's moving papers do not state that it provides such “permanent housing” to its clients there are issues of fact warranting denial of the motion.

On reply, Harlem United argues that the cases petitioner relies on pre-date Iris House, those cases are based on facts that materially differ from those presented here and HSTPA was intended to codify Iris House; further, Part J applies as the ETPA “dovetails with the New York City Rent Stabilization Law”, quoting from this Court's decision in Jericho Project Lessee v. Marte-Travera (67 Misc 3d 1204[A] [Civ. Ct Bx Co 2020]). Harlem United further argues that “as a matter of law” it is a “not-for-profit for providing permanent housing to individuals who are or were homeless or at risk of homelessness” and therefore falls within ETPA § 5(a)(11).


One of the exceptions to Rent Stabilization coverage is for dwelling units which are “not occupied by the tenant, not including subtenants or occupants, as his or her primary residence”. Rent Stabilization Law, NYC Admin Code § 26-504(a)(1)(f). See also ETPA § 5(a)(11); RSC, 9 NYCRR § 2520.11(k). Nonprimary residence of the tenant of record is grounds for nonrenewal of a lease and commencement of a proceeding by the landlord to recover possession upon the expiration of the existing lease term after service of the requisite notices. 9 NYCRR §§ 2524.4(c), 2524.2. A statutory exception to the primary residence requirement for nonprofit hospitals that rent apartments for residential use by their affiliated subtenants was found to be unconstitutional in the case of Manocherian v. Lenox Hill Hosp (84 NY2d 385, 643 NE2d 479, 618 NYS2d 857 [1994]), unless a specific individual is named in the lease, see generally Manocherian v. Lenox Hill Hosp (229 AD2d 197, 203, 654 NYS2d 339, 343 [1st Dep't 1997]); and see Koenig v. Jewish Child Care Ass'n (67 NY2d 955, 494 NE2d 86, 502 NYS2d 981 [1986]).

The predicate notice required by RSC § 2524.2 must state both (1) “the ground under section 2524.3 or 2524.4 upon which the owner relies for removal or eviction of the tenant” and (2) “the facts necessary to establish the existence of such ground”. See, e.g., Kokot v. Green (14 Misc 3d 1224[A], 836 NYS2d 493 [Civ. Ct NY Co 2007]). New York State courts evaluate the sufficiency of predicate notices based on a standard of reasonableness “in view of all attendant circumstances”. Oxford Towers Co, LLC v. Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007]); Avon Bard Co v. Aquarian Found (260 AD2d 207, 210, 688 NYS2d 514, 517 [1st Dep't], app dism'd, 93 NY2d 998, 717 NE2d 1080, 695 NYS2d 743 [1999]); Hughes v. Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996], app dism'd, 90 NY2d 829, 683 NE2d 17, 660 NYS2d 552 [1997]). The notice must “provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process.” Jewish Theological Seminary of America v. Fitzer (258 AD2d 337, 338, 685 NYS2d 215 [1st Dep't 1999]). A predicate notice “need not lay bare a landlord's trial proof” and will be upheld where it is sufficient as a whole to advise the tenant of the claim. McGoldrick v. DeCruz (195 Misc 2d 414, 758 NYS2d 756 [AT 1st Dep't 2003]).

Here, the predicate notice clearly states both the grounds for eviction — nonprimary residence in violation of RSC § 2524.4(c) — and the facts supporting those grounds — that Harlem United is a business which does not have a primary residence at the subject premises and whose lease “does not contain an individual who is designated to reside in the subject premises.” Harlem United does not dispute that it is a nonprofit corporation and that its lease with petitioner does not specify an individual as occupant. Accordingly, the notice meets the test of reasonableness and sufficiently states the basis for petitioner's claim under applicable law so as to allow Harlem United to frame its defenses. Avon Bard Co v. Aquarian Found, supra; see also One Arden Partners, LP v. Unique People Servs Inc (29 Misc 3d 135[A], 920 NYS2d 242 [App Term 1st Dep't 2010]); 2976 Marion, LLC v. University Consultation Ctr (44 Misc 3d 1209[A], 997 NYS2d 670 [Civ. Ct Bx Co 2014]).

Harlem United's argument that 2363 ACP Pineapple, LLC v. Iris House, Inc (55 Misc 3d 7, 49 NYS3d 216 [AT 1st Dep't 2017]) requires dismissal of this proceeding is misplaced. That case did not involve a claim of nonprimary residence and instead was brought under a different exemption from Rent Stabilization for certain units owned, operated or leased by certain nonprofit organizations, 9 NYCRR § 2520.11(f), which specific exemption the court found to have “no application to the eviction relief sought by landlord” in that case. The Iris House decision simply does not support Harlem United's conclusory argument that it “is as a matter of fact and law entitled to both rent-stabilization status and a renewal rent-stabilization lease.” Attorney Affirmation in Support of Motion at ¶ 18. Similarly, Harlem United's conclusory and unsupported argument that Part J of HSTPA codified the Iris House decision does not warrant dismissal of this proceeding which was brought based upon grounds other than those at issue in that decision.

Whether or not ETPA § 5(a)(11), which exempts from rent regulation apartments not occupied as the tenant of record's primary residence, as amended by HSTPA's Part J, provides Harlem United with a complete defense to this proceeding remains to be seen. That amendment consists of a new sentence that provides: “For the purposes of this paragraph, where a housing accommodation is rented to a not-for-profit for providing permanent housing to individuals who are or were homeless or at risk of homelessness, affiliated subtenants authorized to use such accommodations by such not-for-profit shall be deemed to be tenants.” Contrary to petitioner's argument that this section does not apply because at issue here is an apartment subject to Rent Stabilization, not the ETPA, as explained by the Court of Appeals in a chronicle of the history of rent regulation beginning with its origins in 1942, “the [ETPA] is not a rent and eviction regulating law. Instead, it is an enabling act, which empowered New York City and certain suburban local governments to impose, or, as in New York City, where it already existed, to extend rent stabilization.” La Guardia v. Cavanaugh (53 NY2d 67, 74-75, 423 NE2d 9, 12, 440 NYS2d 586, 589 [1981]). See also, e.g., Roberts v. Tishman Speyer Props, LP (62 AD3d 71, 76, 874 NYS2d 97, 102 [1st Dep't 2009]). In fact, the Rent Stabilization Law itself states that it applies to, “housing accommodations in class A or class B multiple dwellings made subject to this law pursuant to the [ETPA].” NYC Admin Code § 26-504(b). Thus, HSTPA's Part J amendment to ETPA § 5(a)(11) applies to apartments subject to Rent Stabilization. However, nowhere in Harlem United's moving papers is there any proof that it provides “permanent housing to individuals who are or were homeless or at risk of homelessness”, which petitioner correctly points out is a question of fact that cannot be determined at this juncture on the record before the court.

On a motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action, the court is required to afford a liberal construction to the pleading, accord petitioner the benefit of every possible favorable inference, accept the facts alleged as true and determine only whether they fit within any “cognizable legal theory.” Leon v. Martinez (84 NY2d 83, 87-88, 638 NE2d 511, 513, 614 NYS2d 972, 974 [1984]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc v. Goldman Sachs & Co (5 NY3d 11, 19, 832 NE2d 26, 31, 799 NYS2d 170, 175 [2005]). On a motion for summary judgment under CPLR R 3212, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med Center (64 NY2d 851, 853 [1985]); Zuckerman v. City of New York (49 NY2d 557, 562, 427 NYS2d 595 [1980]).

Here, accepting the facts alleged as true and according petitioner the benefit of every possible favorable inference, the petition must be found to state a cause of action for eviction based upon nonprimary residence. Issues of fact and law remain as to whether respondent-tenant is entitled to continue as a Rent Stabilized tenant under HSTPA's amendment to ETPA § 5(a)(11).3


For the reasons stated above, respondent-tenant Harlem United's motion is denied. The proceeding will be restored to the Skype conference calendar on a date to be scheduled shortly. This constitutes the Decision and Order of this Court, copies of which will be e-mailed to the parties' respective counsel and to the GAL for Respondent-Occupant “Jane Doe”.


1.   The petition also names “John Doe & /or Jane Doe” as “undertenants-occupants”, as to whom the court previously granted Harlem United's motion for appointment of a guardian ad litem (GAL) to the extent of appointing Thomas Giles as GAL for “Jane Doe”.

2.   While the caption of this proceeding refers to respondent-tenant as “Harlem United”, and the predicate notice was addressed to “Harlem United Inc.”, a third name - “Harlem United: Community Aids Center Inc.”—is listed on this printout.

3.   As for the first counterclaim in Harlem United's verified answer, seeking to compel petitioner to offer it a renewal lease, the court cautions that even if Harlem United ultimately is successful in securing dismissal of this proceeding this court lacks the jurisdiction to order such injunctive relief. Green v. Glenbriar Co (131 AD2d 363, 516 NYS2d 670 [1st Dep't 1987]); Broome Realty Assocs v. Sek Wing Eng (182 Misc 2d 917, 703 NYS2d 360 [AT 1st Dep't 1999]).

Diane E. Lutwak, J.

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