PRANA GROWTH FUND 600 v. “John Doe” and “Jane Doe”, Defendant-Undertenants.

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Supreme Court, New York County, New York.

PRANA GROWTH FUND I, L.P. As successor in interest to 600 W. 161st Street Corporation, Plaintiff-Landlord, v. Jose LAZALA, Defendant-Tenant, “John Doe” and “Jane Doe”, Defendant-Undertenants.

Decided: May 25, 2005

Legal Aid Society, New York City (Edwin Vega of counsel), for Jose Lazala, defendant. Heiberger & Associates, New York City (Jamie Heiberger of counsel), for plaintiff.

Plaintiff's Complaint seeks a judgment of possession based on plaintiff's contention that defendant's tenancy is in violation of the certificate of occupancy and cannot be legalized.

Defendant contends that the apartment in which he has lived with his family since 1989 is located in a building consisting of more than five dwelling units and is thus protected by the Rent Stabilization Law (Administrative Code of the City of New York § 26-501, et seq.) and the Rent Stabilization Code (9 NYCRR § 2520.1, et seq.).

Defendant now moves for an order dismissing the Complaint on the grounds that:  (i) this Court lacks subject matter jurisdiction because defendant was never served with a predicate notice, as required by the Rent Stabilization Code (9 NYCRR §§ 2524.2) and 2524.3(c) (see also, Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003];  Weiden v. 926 Park Avenue, 154 A.D.2d 308, 546 N.Y.S.2d 595 [1st Dep't 1989] );  and (ii) the Complaint fails to state a cause of action.

There is no dispute that plaintiff executed a “Renewal Lease Form” dated September 5, 2003 extending defendant's rent stabilized tenancy for 2 years-through January 31, 2006.   Plaintiff, however, now contends that the apartment is not a legal dwelling and thus is not subject to the Rent Stabilization Law.

Plaintiff further argues that there is no requirement under the Real Property Actions and Proceedings Law (“RPAPL”) that a notice of termination be served prior to the commencement of an action for ejectment.

It is well settled law in the Second Department that “when there is a valid landlord-tenant relationship, a predicate notice must be served on the defendant before commencement of an ejectment action (citations omitted).”   Ricciardo v. Ricciardo, 6 Misc.3d 223, 785 N.Y.S.2d 903 (Civ.Ct., Kings Co.2004).   See also, Commercial Hotel v. White, 194 Misc.2d 26, 752 N.Y.S.2d 779 (App. Term, 2nd Dep't 2002);  Gerolemou v. Soliz, 184 Misc.2d 579, 710 N.Y.S.2d 513 (App. Term, 2nd Dep't 2000);  Kaur v. Sobhey, 5 Misc.3d 1012(A), 2004 WL 2532300 (Civ.Ct., Kings Co.2004).   In the absence of the giving of such notice an ejectment action will not lie.  Gerolemou v. Soliz, supra.

Plaintiff argues, however, that no similar rule has been applied in this Department, and cites the Appellate Division, First Department's decision in East 82 LLC v. O'Gormley, 295 A.D.2d 173, 743 N.Y.S.2d 473 (1st Dep't 2002) for the proposition that a predicate notice need not be served in an ejectment action.

Although the Appellate Division, First Department declined to dismiss that action for lack of a predicate notice, the Court specifically made its determination “[u]nder the circumstances” of that case which included “a ‘foiled’ nonpayment summary proceeding, ‘a surfeit of notice’ and apparently incontrovertible evidence that the space [could not] be legalized.”  East 82 LLC v. O'Gormley, supra at 174, 743 N.Y.S.2d 473.

Here, there was neither a prior proceeding nor any prior notice.1  Moreover, plaintiff has offered no evidence in support of its claim that this space cannot be legalized.   Therefore, the Appellate Division, First Department's reasoning in East 82 LLC v. O'Gormley, supra, would appear not to apply to the facts of this case.2

Accordingly, based on the papers submitted and the oral argument held on the record on February 9, 2005, this Court finds that the landlord was required to serve a predicate notice upon the tenant prior to the commencement of this action.  Domen Holding Co. v. Aranovich, supra.

Defendant's motion is, therefore, granted.   The Clerk may enter judgment dismissing plaintiff's Complaint without costs or disbursements.

This constitutes the decision and order of this Court.

FOOTNOTES

1.   Defendant indicates that he was “shocked that after so many years of paying rent and signing renewal leases that the landlord now says that [he has] to leave.”

2.   In addition, the Hon. Saralee Evans recently issued a decision in a related ejectment action, Prana Growth Fund I v. Ramirez Polanco Antonio, Index No. 112008/04, concerning another apartment in the same building, in which she also distinguished East 82 LLC v. O'Gormley, supra, on its facts, noting that “the same ‘surfeit of notice’ [that was present there] cannot be claimed.”   She thus granted the tenant's motion to dismiss that action on the ground that a predicate notice had not been served.

BARBARA R. KAPNICK, J.

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