5712 REALTY LLC v. Jessica Taylor Jeremy Allenarney John Doe and Jane Doe Respondents, Undertenants.

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Civil Court, City of New York.

5712 REALTY LLC, Petitioner, v. Susan TAYLOR, Respondent, Jessica Taylor Jeremy Allenarney John Doe and Jane Doe Respondents, Undertenants.

L & T 78120/18

Decided: April 09, 2019

Tenenbaum and Shivers LLP, Robert Price, Esq., 26 Court Street, Penthouse, Brooklyn, NY 11242, (718) 596 - 3800, rp@tsllplaw.com Brooklyn Legal Services, Inc., Sarah M. Telson, Esq., 105 Court Street, 4th floor, Brooklyn, NY 11201, (718) 233 - 6361, Smtelson@lsnyc.org, Staylor@lsnyc.org

Upon the foregoing cited papers, the Decision/Order of this Court on these consolidated motions is as follows:

This is a non-primary residence holdover proceeding in a rent stabilized apartment. Respondents, Susan Taylor, and Jessica Taylor, appear by counsel with a written verified answer asserting affirmative defenses and counterclaims. Petitioner moves to strike some of the affirmative defenses and counterclaims raised in the answer and for summary judgment. Respondents cross move for summary judgment based on succession rights, under the Rent Stabilization Law.

PETITIONER'S MOTION

First, petitioner moves to strike the first defense for failure to state of cause of action based on a defective predicate notice. Second, petitioner moves to strike the first affirmative defense for failure to state of cause of action based on a defective petition.

Under CPLR 3211 (b), “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has merit.” When moving to dismiss an affirmative defense, the plaintiff has the burden of demonstrating that the affirmative defense is without merit as a matter of law. Bank of New York v. Penalver, 125 AD3d 796 (2nd Dep't 2015); lv to appl dism. 26 NY3d 1030 (2015); quoting Vita v. New York Waste Servs., LLC, 34 AD3d 559 (2nd Dep't 2006). The Court must liberally construe the pleadings in favor of the party asserting the defense and give the party the benefit of every reasonable inference while reviewing the motion to dismiss an affirmative defense. Fireman's Fund Ins. Co. v. Farrell, 57 AD3d 721 (2nd Dep't 2008).

Further, a motion to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a cause of action is afforded a liberal construction. CPLR 3026. The facts alleged in the complaint or petition must be accepted as true and afford the plaintiff or petitioner the benefit of every possible inference and determine only whether the facts alleged fit within any cognizable legal theory. Leon v. Martinez, 84 NY2d 83 (1994); Fishberger v. Voss, 51 AD3d 627 (2nd Dep't 2008).

Here, upon this Court's review of the predicate non-renewal notice, the facts alleged facially fit within a cognizable cause of action for non-primary residence. Specifically, the non-renewal notice provides at least two alternative addresses where petitioner asserts respondent has resided. This is supported by the alternate addresses appearing in voter registration and wireless phone account statements of respondent, Susan Taylor. Also, the notice contends that petitioner has not seen respondent, Susan Taylor, in the building or subject premises for several years. A non-renewal notice will pass muster if it specifies an alternate address at which the tenant is supposedly primarily residing and the facts to support that claim are linked to the addresses on items like a utility, telephone, and/or credit card statement. Second 82nd Corp. v. Veiders, 34 Misc 3d 130(A), (AT 1st Dep't 2011); 449 Second Corp. v. Napoli, 12 Misc 3d 135(A), (AT 1st Dep't. 2006.); Brooklyn Law Sch. v. Clark-Koss, 21 Misc 3d 143(A), (AT 2nd Dep't 2008).

Based on the above, the instant predicate notice sets forth case-specific allegations tending to support petitioner's nonprimary residence claim and is sufficient to satisfy the specificity requirements of Rent Stabilization Code (9 NYCRR) § 2524.2(b) and governing precedent (see Berkeley Assoc. Co. v. Camlakides, 173 AD2d 193 (1st Dep't 1991), aff'd 78 NY2d 1098 (1991); see also Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 ( 1st Dep't 1996), lv dismissed in part and denied in part 90 NY2d 829 (1997) ). The notice meaningfully apprises respondents of the factual underpinnings of the landlord's nonprimary residence claim. It is further confirmed by respondent, Susan Taylor's, own affidavit in support of her motion for summary judgment where she admits that she moved out of the subject premises in December 2013. (Taylor Aff'd ¶ 2).

Furthermore, upon this Court's review of the petition, the facts alleged on the petition facially fit within a cognizable cause of action for non-primary residence. The petition refers to the same facts in the predicate non-renewal notice. Accordingly, petitioner's motion to strike the first defense and the first affirmative defense for failure to state of cause of action is granted. CPLR 3211 (b); Bank of New York v. Penalver, supra.; Leon v. Martinez, supra.

Lastly, petitioner moves for summary judgment arguing that there is no question of fact in dispute to its prima facie proof that respondent, Susan Taylor, engaged in a systematic pattern of deception by signing renewal leases and money orders in her name while not in occupancy.

According to petitioner's Vice President, Akiva Metal, respondent, Jessica Taylor is new to the subject premises, even though she may have lived at the premises earlier in her life. Mr. Metal has not seen nor does he believe that Jessica Taylor lived in the subject premises two years prior to the vacatur of the tenant of record, Susan Taylor. (Metal Affi'd ¶ 5). Further, he states that to his knowledge Susan Taylor did not co-reside with Jessica Taylor for any significant time before Susan Taylor's vacatur. (Metal Affi'd ¶ 6). He contends that Susan Taylor failed to tell his office that she had vacated in December 2013. Actually, he received renewal leases in Susan Taylor's name after the December 2013 vacatur which are attached as exhibits to the motion. (Metal Affi'd ¶ 7). Exhibit D to the motion is a copy of a renewal lease for the subject premises dated May 22, 2016 for the period August 1, 2016 through July 31, 2018 and signed by Susan Taylor. Exhibit E to the motion contains another renewal lease for the subject premises signed by Susan Taylor. The lease was signed on May 19, 2014 for the period August 1, 2014 through July 31, 2016.

The movant in a successful motion for summary judgment must present evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact. Gonzalez v. Abreu, 162 AD3d 748 (2nd Dep't 2018) (citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980) ). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Id. (citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985) ). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hospital, 68 NY2d at 324; Stonehill Capital Mgmt., LLC v. Bank of the West et. al., 28 NY3d 439, 448 (2016). 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 NY2d 223, 231 (1978). The evidence must be considered in the light most favorable to the party opposing the motion. Henderson v. City of NY, 178 AD2d 129, 130 (1st Dept 1991). Importantly, the motion must be denied where conflicting inferences may be drawn from the evidence. Kaziu v. Human Care Servs. for Families & Children, 167 AD3d 588 (2nd Dep't 2018) (quoting Ruggiero v. DePalo, 153 AD3d 870, 872, (2nd Dep't 2017) ) (internal quotation marks omitted).

Here, petitioner argues that Jessica Taylor has waived any succession rights because Susan Taylor did not inform it that she had vacated the premises in December 2013. Petitioner relies on Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) for this argument. According to Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1),

Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to federal, state or local law, regulations or other requirements of governmental agencies, if an offer is made to the tenant pursuant to the provisions of subdivision (a) of this section and such tenant has permanently vacated the housing accommodation, any member of such tenant's family, as defined in section 2520.6(o) of this Title, who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, or where such person is a “senior citizen,” or a “disabled person” as defined in paragraph (4) of this subdivision, for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease.

Additionally, petitioner relies on the holding in Third Lenox Terrace Assoc. v. Edwards, 91 AD3d 532 (1st Dep't 2012) for the proposition that the only relevant time period for establishing succession rights is the period immediately prior to the tenant's permanent vacatur. If the tenant has not maintained the apartment as a primary residence during that legally defined time frame, then there is no succession. The Court in Third Lenox, supra. concluded that a tenant who vacates but continues to execute renewal leases and pay rent in her name cannot be found to have “permanently vacated.” Thereby, the Court precluded succession rights to the sister of the tenant of record because she could not show co-occupancy with the tenant of record during the last two years of the latest renewal lease.

Similarly, here, petitioner argues that Susan Taylor signed two year renewal leases dated May 19, 2014 and May 22, 2016 but she vacated the premises in December 2013. According to petitioner, this behavior is deceptive and Jessica Taylor cannot show co-occupancy with her mother, the tenant of record, Susan Taylor during the last two years of the latest expired renewal lease (i.e. July 31, 2018). Third Lenox Terrace Assoc. v. Edwards, supra.

RESPONDENT'S CROSS MOTION

Respondent, Jessica Taylor, cross moves for summary judgment based on her right to succeed to Susan Taylor's tenancy pursuant to Rent Stabilization Code (9 NYCRR) § 2520(6) (o). Respondents submit two affidavits in support of their cross motion. The first affidavit is from Jessica Taylor. According to Ms. Taylor, she is the daughter of the tenant of record, Susan Taylor. She has resided at the subject premises her entire life which is over thirty-one (31) years. Her mother, Susan Taylor moved out of the premises in December 2013. She is seeking a lease in her name because she believes she has succession rights to her mother's rent stabilized lease. She contends that around the time her mother moved out, she contacted management to have the lease put in her name. She does not indicate who she spoke to at the office. She was told that she had to pay $ 700 more but not told that there was any issue with her mother leaving the apartment. Since 2013, she has been paying the rent in her name and communicated with management about repairs. Her mother signed the renewal leases because they were still in her name. Her mom thought that was her only option, since the landlord previously told Jessica that she could not get the lease in her name. (Aff'd of Jessica Taylor ¶ s 1-9).

Moreover, Jessica Taylor submits documents to support her assertions. These documents include her birth certificate listing Susan Taylor as her mother with an address at the subject premises. (Exhibit A). Other documents include a copy of New York State, Department of Motor Vehicles identification card that expired on 1/11/08, college academic records released for 10/21/05, cable bill dated 6/20/09, college loan documents dated 2009, state and federal income tax returns 2012 and 2013, Human Resources Administration documents dated 2009 and 2010, 2010 and 2013 W2 forms, paystubs for 2011, magazine subscription for August 2011, retirement plan statement dated 10/1/11 and 7/1/13, and health care insurance statement for period 12/10/13-2/26/14. All of these documents indicate Jessica Taylor's address as the subject premises. (Exhibit G). Lastly, Jessica Taylor states that the only time she left the subject premises was for college in Pennsylvania but even then she considered the subject premises her home. (Aff'd of Jessica Taylor ¶ 8).

The second affidavit submitted in support of the respondent's cross motion is from Susan Taylor. According to Ms. Taylor, she has lived at the subject premises for most of her life before moving out in December 2013. She raised her daughter Jessica Taylor at the subject premises and Jessica has lived nowhere else. She advised Jessica to try and get the lease in her name but Jessica was told that the rent would be increased if the lease was changed to her name. Jessica could not afford an increase. Since Jessica's name was not put on the lease, she signed the next two renewal leases. However, Jessica was paying the rent and utilities in her own name. Ms. Taylor states that she had no intention to deceive the landlord. She just wanted Jessica to be able to stay in the apartment especially since she was raised there. If she had known it was a problem for her to sign the renewal leases, she wouldn't have signed them. She did not know any other way to get the landlord to issue a lease in Jessica's name or else she would not have done it. (Aff'd of Susan Taylor ¶ s 2-7).

While petitioner relies on Third Lenox. supra. for its summary judgment motion, respondents relies on Matter of Marie Jourdain v. New York State Division of Housing and Community Renewal, 159 AD3d 41 (2nd Dep't 2018) for their summary judgment cross motion.The question presented in Matter of Marie Jourdain, supra., was whether a family member who has been residing in an apartment with the tenant of record for years and had the right to seek succession, when the tenant of record moved out, lost that right by virtue of the fact that the tenant of record continued to pay the rent and executed renewal leases, after moving out?

The answer was “No.” The Appellate Division, Second Department concluded that under RSC § 2523.5 (b) (1), “permanent vacating of the housing accommodation by the tenant” means the time that the tenant permanently ceased residing at the housing accommodation and that the mere execution of a renewal lease and the continuation of rent payments by the tenant after the tenant permanently ceases to reside at the housing accommodation does not extend the relevant time period. Id.

The Court in the decision discussed that some previous cases interpreting RSC § 2523.5 (b) (1) involved tenants that had moved out but continued to sign renewal leases which constituted fraud by the tenant and prejudice to the landlord.1 For example, these were the circumstances in Third Lenox Terrace Assoc. v. Edwards, supra. But the Court distinguished Third Lenox Terrace Assoc. supra. from Matter of Jourdain by indicating that tenant of record (daughter) only executed one renewal lease, after moving out as opposed to three two year renewal leases executed by the tenant in Third Lenox Terrace Assoc. supra., after she moved out. The Court in Matter of Jourdain, supra. found that the execution of one renewal lease after having moved out of the apartment does not necessarily indicate an attempt to deceive the landlord. Moreover, there was no dispute that the mother resided with the tenant of record daughter for the one year period immediately prior to the time daughter permanently stopped residing at the subject premises in 2008 and was entitled to succession.

Moreover, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule. Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 (2nd Dep't 1984). However, here, this Second Department, Appellate Division has pronounced a contrary rule to that of the Appellate Division, First Department in Third Lenox Terrace Assoc. supra. Specifically, Matter of Marie Jourdain, supra. is currently the controlling appellate authority in the Appellate Division, Second Department interpreting RSC § 2523.5 (b) (1). Accordingly, this trial court must follow decisions and precedents established by the Appellate Division of its department and apply the holding of Matter of Marie Jourdain. In re Weinbaum's Estate, 51 Misc 2d 538, 539, (Sur. Ct. Nassau Cty 1966).

Furthermore, this Court also notes that recently there have been at least two Appellate Term, First Department decisions that seem to factually distinguish the holding in Third Lenox Terrace Assoc. supra. The two decisions are BPP ST Owner LLC v. Nichols, 2019 NY Slip Op 29057 (AT 1st Dep't 2019) 2 and Park Tower South Co., LLC v. Mandal, 2019 NY Slip Op 50471 (U) (AT 1st Dep't 2019). The Appellate Term, First Department in those decisions considered that the record before it included factors like the tenant of record did not make a misrepresentation to the landlord or prejudice the landlord because the landlord was aware of the non-tenant's occupancy for many years, that the non-tenant identified herself as an occupant on renewal leases, that the tenant of record made repeated unsuccessful attempts to add the occupant to the lease and that forged renewal leases did not show the landlord suffered any discernible prejudice to the prosecution of its eviction claim. Similarly, here, Jessica Taylor was paying the rent under her own name and Susan Taylor states that she had no intention to deceive the landlord nor was there any forgery involved. Actually, Jessica Taylor contends she contacted management to have the lease put in her name, after Susan's vacatur. (Aff'd of Susan Taylor ¶ s 2-7).

 CONCLUSION

Petitioner's motion for summary judgment is denied, since petitioner relies on the holding of Third Lenox Terrace Assoc. v. Edwards, supra. for its summary judgment motion. Third Lenox is controlling appellate authority in the Appellate Division, First Department.

The doctrine of stare decisis requires that this Second Department, Judicial District, trial court follow decisions and precedents established by its own department, if the Court of Appeals has not ruled on the same precedent. Mountain View Coach Lines, Inc. v. Storms, supra.

Here, Matter of Marie Jourdain, supra. is this department's controlling appellate authority concluding that the language in RSC § 2523.5 (b) (1) “permanent vacating of the housing accommodation by the tenant” means the time that the tenant permanently ceased residing at the housing accommodation and that the mere execution of a renewal lease and the continuation of rent payments by the tenant after the tenant permanently ceases to reside at the housing accommodation does not extend the relevant time period. Accordingly, Jessica Taylor is entitled to a trial to determine if she co-occupied the subject premises with her mother, the tenant of record, Susan Taylor, for at least two years before December 2013, the time that Susan Taylor admits she permanently ceased residing at the subject premises. Petitioner in its supporting papers has not established as a matter of law that tenant of record, Susan Taylor, did not co-reside with Jessica Taylor for at least two years before the December 2013 permanent vacatur. Accordingly petitioner's motion for summary judgment is denied. Park Tower South Co., LLC v. Mandal, supra.; Gonzalez v. Abreu, supra.; Winegrad v. New York Univ. Med. Ctr., supra.Respondent's cross motion for summary judgment is also denied. Respondent, Jessica Taylor, in her supporting documents and affidavit to the cross motion has not submitted evidentiary proof in admissible form to demonstrate absence of triable issues of fact. Alvarez v. Prospect Hosp., supra,; Zuckerman v. City of New York, supra.; Gonzalez v. Abreu, supra. For example, the documents provided are uncertified and not in admissible form. Some have even expired. Also, the documents range from years 2005 to 2014. There is no fluidness to the documents provided regarding the relevant time frame of at least two years before the December 2013 vacatur of Susan. It is more of a hodgepodge of documents. Also, Jessica Taylor in her affidavit does not indicate who she spoke to at management, when she informed them of her mother's vacatur nor provides the precise date of the notification. However, at trial these issues can be presented in admissible form and subject to cross examination. Accordingly respondent's cross motion for summary judgment is denied. Gonzalez v. Abreu, supra.; Winegrad v. New York Univ. Med. Ctr., supra.

ORDERED petitioner's motion to strike certain defenses is granted.

ORDERED petitioner's motion for summary judgment is denied.

ORDERED respondent's cross motion for summary judgment is denied.

The matter is restored to the Part T calendar, Room 503 at 9:30 a.m. on May 14, 2019 for all purposes.

This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below.

FOOTNOTES

1.   Unlike South Pierre Assoc. v. Mankowitz, 17 Misc 3d 53 (AT 1st Dep't 2007), where the family members of the deceased tenant of record forged the tenant's name on seven renewal leases and rental payments during a ten year period. This prejudiced the landlord by preventing it from making an investigation into the emotional and financial underpinnings of the family members under a non-traditional family member succession claim.

2.   The Appellate Term, First Department in a footnote of the decision, indicates that Third Lenox Terrace Assoc. supra. is still good law in the First Department and that the Appellate Division, Second Department does not follow Third Lenox.

Frances A. Ortiz, J.