1641 Park Ave. Assocs. v. Parker
| Decision Date | 17 February 2022 |
| Docket Number | Index 159106/2020 |
| Citation | 2022 NY Slip Op 30519 (U) |
| Parties | 1641 PARK AVENUE ASSOCIATES Plaintiff, v. JUSTIN PARKER, Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 56 57, 58, 59, 60, 61, 62, 63, 76, 77 were read on this motion to/for JUDGMENT - SUMMARY.
In this action for ejectment, and for declaratory and injunctive relief, the plaintiff landlord moves pursuant to CPLR 3211(b) to strike the defendant's affirmative defenses, and pursuant to CPLR 3212 for summary judgment (1) on its cause of action seeking ejectment, a judgment of possession referable to the subject premises, and the issuance of a writ of assistance (second cause of action), (2) on its cause of action to recover a money judgment for use and occupancy (third cause of action), (3) on the issue of liability on its cause of action for an award of attorneys' fees (fourth cause of action), and (4) dismissing the defendant's counterclaims. The defendant opposes the motion. The motion is granted only to the extent that all of the plaintiff's affirmative defenses are stricken, with the exception of the affirmative defenses of failure to state a cause of action and waiver, and the plaintiff is awarded summary judgment dismissing all of the defendant's counterclaims. The motion is otherwise denied. Upon searching the record (see CPLR 3212[b]), summary judgment is awarded to the defendant dismissing the plaintiff's second, third, and fourth causes of action, without prejudice to the plaintiff's commencement of a holdover proceeding or proceeding to obtain possession in the Housing Division of the Civil Court, after providing the defendant with a 90-day notice of nonrenewal pursuant to Real Property Law § 226-c (L 2019, ch 36, Part M, § 3).
The plaintiff asserts that it leased an apartment to the defendant, that the apartment was not subject to rent regulation and that, as such, it was not obligated to tender a renewal lease to the defendant upon the expiration of the lease. It thus seeks to eject the defendant from the apartment, along with an award of use and occupancy for the time that he occupied the leasehold after expiration. The defendant counters that the lease should have been subject to rent regulation because the plaintiff fraudulently deregulated it in 2013, and that he should not be ejected from the apartment. He also counterclaims to recover for rent overcharges, fraud, harassment, and defamation.
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]).
Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issue's of fact (see Vega v Restani Constr, Corp., 18 N.Y.3d at 503). "The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in its opponent's case. He or she must affirmatively demonstrate the merit of his or her claim (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
In support of its motion, the plaintiff submits the affidavits of its asset manager, Jessica Hakim, its building superintendent, Victor Torres, and its officer, Kayvan Hakim, the pleadings, the registrations that it filed with the New York State Division of Housing and Community Renewal (DHCR), the renovation permits issued to it by the New York City Department of Buildings (DOB), the approved plans that it filed with the DOB, a third-party construction service agreement, the previous rent stabilized tenant's renewal lease and surrender agreement, a notice of deregulation, the Rent Guidelines Board Apartment orders chart, and a resident ledger of the rent charges and payments applicable to the defendant's apartment.
(L 2019, ch 36, Part M, § 3; RPL 226-c[1] [emphasis added]). Where, as here, "the tenant has occupied the unit for more than two years ... the landlord shall provide at least ninety days' notice" (RPL 226-c[2][c]).
This court concludes that RPL 226-c applies to all tenancies, and is applicable to both common-law ejectment actions and RPAPL holdover proceedings. There is nothing in this mandatory directive, or in any part of the HSTPA, that suggests that its application is somehow limited only to landlords who elect to commence special proceedings pursuant to RPAPL (). In any event, although "[t]he common law does not require a notice to terminate a tenancy of a definite term, ... it does require a notice to quit to remove a tenant of an indefinite term by an ejectment action" (id, 2021 NY Slip Op 30916[U], *3, 2021 NY Misc. LEXIS 1276, *4]; see Gerolemou v Soliz, 184 Misc.2d 579 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2000]; Hsiu v Trujillo, 192 Misc.2d 147 [Sup Ct, Bronx County 2002]).
Initially, the statutory notice required here was not a notice of termination, but a notice of nonrenewal. Consequently, the above rule dispensing with the requirement for notices of termination in common-law actions is inapplicable. Moreover, the plaintiff here not only failed to give the defendant notice that it intended not to renew his one-year lease, but failed to give him notice, even after the expiration of his lease, when his alleged "tenancy" became indefinite, that his tenancy was being terminated. In fact, the first formal notice that the defendant received that his tenancy was being terminated was on November 13, 2020, when the plaintiff served him with the summons and complaint in this action, along with papers in support of its motion for a preliminary injunction. That date was more than three months after the term of the defendant's lease had expired.
Hence the plaintiff has not established, through its moving papers, that it provided the defendant with the required statutory notice, or any notice whatsoever. As such, the branch of the plaintiff's motion which is for summary judgment on its second cause of action, seeking ejectment, a judgment of possession, and the issuance of a writ of assistance, must be denied, regardless of the sufficiency of any opposition papers. Moreover, "it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court" (Schwartz v Town of Ramapo, 197 A.D.3d 753, 756 [2d Dept 2021], quoting Zhigue v Lexington Landmark Props., LLC, 183 A.D.3d 854, 856 [2d Dept 2020]). Inasmuch as the court concludes that the provision and service of that 90-day notice of nonrenewal was a condition precedent to the commencement of a holdover proceeding pursuant to RPAPL or a common-law action for ejectment, that the plaintiff was required to submit such notice a condition to obtaining relief, and that the parties' submissions do not suggest that notice was actually provided, the court further...
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