NEW YORK CITY PROPERTY MANAGEMENT LLC v. Freddy Fermin, Respondent-Appellant. (2007)

Order (Marc Finkelstein, J.), dated May 19, 2006, affirmed, with $10 costs.   Appeal from order (Marc Finkelstein, J.), dated November 9, 2006, dismissed, without costs, as taken from a nonappealable order.

We agree, essentially for reasons stated by the motion court, that the holdover proceeding is not ripe for summary dismissal on the pre-answer record so far developed, which raises triable issues as to whether respondent Fermin's occupancy status is that of a subtenant or licensee, as petitioner claims, or whether, as respondent argues, he possesses independent tenancy rights in the stabilized apartment premises.   In moving to dismiss the petition pursuant to CPLR 3211(a)(1), respondent cited as dispositive a renewal lease form issued solely to the now departed record tenant (Santos) in March 2004, a single-page document to which respondent apparently added his signature next to that of the tenant, after altering the document by inserting his handwritten name alongside Santos' name as “Tenant” in the body of the instrument.   In this posture, it is far from clear that the prior owner's counter-signature of the renewal lease form reflected a willing intention to convey full stabilization protection to respondent, an apartment occupant who, so far as shown, was unilaterally put into possession by the tenant at a time and under circumstances not presently disclosed in the abbreviated record.   Since the renewal lease form does not “conclusively establish[ ] [respondent's tenancy] defense as a matter of law” (Almodovar v. City of New York, 267 A.D.2d 10, 11, 698 N.Y.S.2d 489 [1999];  see Witiuk v. Mykytiw, 216 A.D.2d 779, 629 N.Y.S.2d 92 [1995];  cf. 150 Broadway N.Y. Assoc. v. Bodner, 14 A.D.3d 1, 784 N.Y.S.2d 63 [2004] ), the holdover petition, as properly amended, was sufficient to withstand respondent's dismissal motion founded upon documentary evidence.   To the extent respondent argues that his putative tenancy interest in the apartment was ratified by the subsequent conduct of petitioner or the predecessor owner, that argument raises issues beyond the four corners of the documentary evidence relied upon by respondent, issues which cannot be resolved at this juncture.

I respectfully dissent.   This is an illegal sublet proceeding where the respondent Fermin moves to dismiss the petition on the grounds of documentary evidence and failure to state a cause of action (CPLR § 3211[a][1] and [7] ).   The petitioner landlord (landlord) cross-moves to amend the petition (CPLR § 3025[b] ).

The respondent Fermin relies upon an executed rent stabilized lease naming him as a co-tenant with Santos as documentary evidence warranting dismissal.   The landlord seeks to amend the petition naming Santos as the sole tenant and Fermin as an undertenant alleging that he is an illegal occupant.   Fermin is listed as a co-tenant in the caption and paragraph 2 of the petition.   The landlord claims that Fermin fraudulently altered the lease by adding his name and signing it as co-tenant, relying upon an affidavit by a managing agent of the previous landlord that Fermin was not a tenant of record.

The following facts are undisputed.   There is only one lease, the previous landlord signed it after Fermin, it names Fermin as a co-tenant with Santos, there is no affidavit from the previous landlord disputing the validity of the lease and the managing agent's affidavit does not offer any facts as to the circumstances surrounding the signing of the lease.   This establishes a prima facie case for the respondent Fermin.   The landlord must show a legal basis to reform the lease.

Leave to amend a pleading should be freely granted (CPLR § 3025[b] ) but denied where the proposed amendment lacks merit (Davis & Davis v. Morson, 286 A.D.2d 584, 585, 730 N.Y.S.2d 293 [1st Dept.2001];  Sharon Ava & Co. v. Olympic Tower Assoc., 259 A.D.2d 315, 316, 686 N.Y.S.2d 422 [1st Dept.1999] ).  “[A] motion for leave to amend a pleading must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment'(internal citations omitted)” (Non-Linear Trading Co., Inc. v. Braddis Assoc., 243 A.D.2d 107, 116, 675 N.Y.S.2d 5 [1st Dept.1998] ).

The previous landlord signed the lease after Fermin and accepted rent from him.   There is no affidavit from the previous landlord disputing the validity of the lease.   Therefore the previous landlord is deemed to have ratified the lease and the petitioner landlord is bound by its terms (Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 11, 537 N.Y.S.2d 787, 534 N.E.2d 824 [1988];  George Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062 [1978] ).   There is no evidence or offer of proof to show that the previous landlord did not know what he was signing.   Characterizing the lease as altered by Fermin is speculative.

The landlord seeks to contradict the terms of a valid unambiguous contract in violation of the parole evidence rule and the Statute of Frauds (Chimart Assocs. v. Paul, 66 N.Y.2d 570, 498 N.Y.S.2d 344, 489 N.E.2d 231 [1986] ).   The lease is valid documentary evidence warranting dismissal of the petition (150 Broadway N.Y. Assoc., L.P. v. Bodner, 14 A.D.3d 1, 5, 784 N.Y.S.2d 63 [1st Dept.2004] ).   Furthermore the petition fails to state a cause of action because Santos is named as a co-tenant under a valid lease.   Additionally he was not served with the predicate notices.

The Order dated May 19, 2006 should be reversed, the petition dismissed and the cross-motion to amend denied.

This constitutes the decision and order of the court.

PER CURIAM.

I concur.