85 EP LLC v. Cano
| Decision Date | 02 March 2020 |
| Docket Number | L & T 78963/19 |
| Citation | 67 Misc.3d 551,124 N.Y.S.3d 635 |
| Parties | 85 EP LLC, Petitioner, v. Elizabeth CANO, Respondent, "John Doe" and "Jane Doe," Respondents-Undertenants. |
| Court | New York Civil Court |
Petitioner's attorneys: Law Offices of Scott D. Gross, 400 Post Avenue, Suite 400B, Westbury, New York 11590, (516) 742-9099
Respondent's attorneys: The Legal Aid Society, Brooklyn Neighborhood Office, Attn: Aviv Lipman, Esq., 111 Livingston Street, 7th fl., Brooklyn, N.Y 11201
The Decision and Order on this Motion is as follows:
Petitioner commenced this summary proceeding, after the expiration of a Ten Days Notice to Quit Licensee (Notice), seeking to recover possession of the basement apartment (Apartment) in the building located at 85 Eastern Parkway, in Brooklyn (Building), alleging that Respondent Elizabeth Cano (Cano) is a licensee of Hector Ortiz (Ortiz), who is employed as the superintendent of the building. The Notice alleges that Ortiz had been granted possession of the Apartment as an incident of his employment, and that Ortiz and Cano had occupied the apartment until marital difficulties caused Ortiz to vacate. The Notice further alleges that on August 15, 2019, Ortiz surrendered all interest that he had in the Apartment, and that respondent remained as his licensee, whose license expired with his surrender.
The proceeding first appeared on the court's calendar on October 15, 2019 and was adjourned on several occasions. On November 7, 2019, respondent, at the time self-represented, interposed a written answer. On November 18, 2019, respondent appeared by counsel, and the proceeding was adjourned further, with the instant motion initially returnable on December 18, 2019.
The motion seeks an order granting leave to interpose a written answer and to deem the annexed proposed amended answer served and filed, and upon such amendment seeks summary judgment premised on the third, fourth and fifth affirmative defenses contained within the proposed amended answer.
Petitioner consents to the branch of the motion seeking leave to interpose an amended answer. That branch of the motion therefore granted without opposition, and the proposed amended answer annexed to the motion is deemed served and filed.
Summary judgment is to be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." ( CPLR 3212 ). Summary judgment is a drastic remedy, one to be granted only when there is no doubt that no triable issue of material fact exists ( Rotuba Extruders v. Ceppos , 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ). The proponent of summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law ( Winegrad v. New York. Univ. Med. Center , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). If the movant succeeds in doing so, the party opposing the motion must demonstrate, through the presentation of evidence in admissible form, the existence of a factual issue requiring trial ( Zuckerman v. City of New York , 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Neither the "shadowy semblance" of an issue ( S. J. Capelin Assocs. v. Globe Mfg. Corp. , 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ) nor "bald conclusory assertions, even if believable," ( Gelb v. Bucknell Press, Inc. , 69 A.D.2d 829, 830, 415 N.Y.S.2d 89 [2d Dept 1979] ) are enough to defeat summary judgment.
In order to prevail, then, respondent must establish each element of the defense offered. Here Cano seeks summary judgment on the grounds that petitioner, in violation of Real Property Actions and Proceedings Law (RPAPL) 744. That section provides that:
The real property law provides that:
"[f]or the purposes of this section, a person is a "domestic violence victim" and possesses "domestic violence victim status" if such person is or has been in a situation in which such person or child is a victim of an act that would constitute a violent felony offense as enumerated in section 70.02 of the penal law, or a family offense as enumerated in subdivision one of section eight hundred twelve of the family court act, and such act is alleged to have been committed by a member of the same family or household as defined in subdivision one of section eight hundred twelve of the family court act."
( Real Property Law § 227-d [1] ). The Family Court Act enumerates a variety of offenses over which the family court and the criminal court have concurrent jurisdiction ( Family Court Act § 812[1] ). Here, respondent offers uncontroverted factual assertions; petitioner, having elected to offer solely the affirmation of counsel in response to a motion for summary judgment, makes none.
Cano acknowledges that at the time she initially moved into the Apartment, Ortiz occupied it incident to his employment. Cano asserts that she moved into the Apartment on March 1, 2012, that she resides there with her children, that the two oldest children, aged 20 and 14, are from a prior relationship, while the youngest, age 7, is respondent's child with Ortiz. Cano asserts that after years of physical emotional and psychological abuse, she started a family court case in April 2019, resulting in the issuance of multiple orders of protection, initially excluding him from the Apartment. That exclusion was later removed in subsequent orders of protection, which continued to provide that Ortiz could not speak to Cano or commit any crimes against her but permitted him to enter the Apartment and to see their daughter.
Petitioner offers nothing to refute Cano's contentions that she is a domestic violence victim. This court is satisfied that, given the detailed array of conduct, including threats of violence and harassing behavior, respondent satisfies the statutory definition of "domestic violence victim."
As respondent correctly notes, there is a paucity of authority interpreting RPAPL § 744. There appear to be two decisions reported that address the statute. Each is factually distinct in a significant way from the instant proceeding. Both were cases commenced in the context of landlord-tenant relationships. In KDG Albany LP v. Nixon ,(62 Misc. 3d 557, 89 N.Y.S.3d 835 [City Ct. Albany 2018] ), the court found that "Dixon entered into a lease with KDG to rent an apartment" ( Id. at 558, 89 N.Y.S.3d 835 ), and noted that ...
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