Baer v. Jarzombek

• Decision Date: 17 January 1992
• Citation: 153 Misc.2d 351,581 N.Y.S.2d 549
• Parties: Maurice BAER, et al., Petitioner-Landlord, v. Larissa JARZOMBEK, Respondent-Tenant, Eugene Harley, et al., Respondent-Undertenants. Maurice BAER, et al., Landlord, v. GOTHAM CRAFTSMAN LIMITED, et al., Tenant.
• Court: New York City Court

Page 549

581 N.Y.S.2d 549

153 Misc.2d 351

Maurice BAER, et al., Petitioner-Landlord, v. Larissa JARZOMBEK, Respondent-Tenant, Eugene Harley, et al., Respondent-Undertenants.

Maurice BAER, et al., Landlord, v. GOTHAM CRAFTSMAN LIMITED, et al., Tenant.

Civil Court of the City of New York,

New York County, Part 52.

Jan. 17, 1992.

David Brody, Finkelstein Borah Schwartz Altschuler & Goldstein, New York City, for petitioner-landlord.

Paul Gulielmetti, Gulielmetti & Gesmer, P.C., New York City, for respondent-tenant Gotham Craftsman Ltd., Irving Hall and Larissa Jarzombek.

Jeffrey S. Ween and Sara Brenner, Jeffrey S. Ween & Associates, New York City, for respondent-tenant Thea Anema.

RICHARD F. BRAUN, Judge:

These are two summary proceedings brought pursuant to Real Property Actions and Procedures Law section 711 in the commercial landlord and tenant part of this Court. The first proceeding is a holdover proceeding and the second is a proceeding for nonpayment of rent. The attorneys for the parties agreed by Stipulation that the proceedings are to be jointly tried.

Respondent-Undertenant THEA ANEMA ("ANEMA") has moved to dismiss the Petition in the holdover proceeding against her. Petitioners cross-moved to deem Respondent ANEMA's motion a motion for summary judgment, and grant summary judgment to Petitioners against Respondent ANEMA; or, in the alternative, summarily determine, pursuant to CPLR 409(b), that Respondent ANEMA is not entitled to continued occupancy of the subject premises. In both proceedings, Petitioners then cross-moved to dismiss certain affirmative defenses, grant partial summary judgment dismissing certain counterclaims, and deem the Petitions amended. The part of the motion of Petitioners to deem the Petitions amended was denied by this Court from the Bench due to the failure of Petitioners to attach a proposed amended petition to their moving papers. See Goldner Trucking Corp. v. Stoll Packing Corp., 12 A.D.2d 639, 640, 208 N.Y.S.2d 1004, 1005 (2nd Dep't 1960); Hoisting Machinery Co. v. Elderfields Reservation, Inc., 195 A.D. 873, 185 N.Y.S. 933 (1st Dep't 1921); Plitt v. Illinois Surety Co., 165 A.D. 973, 150 N.Y.S. 756 (1st Dep't 1914). Respondents-Tenants in both proceedings then cross-moved for summary judgment dismissing the Petitions and finding Petitioners liable on certain counterclaims. After this Court had denied Petitioners' cross-motion to deem the Petitions amended, Petitioners cross-moved for leave to amend the Petitions in both proceedings.

The subject premises are in a loft building located at 265 West 37th Street, Manhattan. Respondents are tenants and undertenants of two loft units in the subject building, of which Petitioners are the owners and landlords. As is the case with many other loft buildings and units, the subject building has had a long and extremely tortured history of litigation in Court and before the New York City Loft Board ("the Loft Board").

Multiple Dwelling Law ("MDL") Article 7-C ("the Loft Law") became effective on June 21, 1982. The law was an attempt to create some order to the morass of landlord and tenant dispute resolution for lofts by creating a system for legalization of interim multiple dwellings, which are loft buildings converted to residential use from their former commercial or manufacturing use without complying with local building, housing maintenance, fire, and health codes. See MDL section 280, 281. Only certain lofts were covered by the Loft Law, pursuant to MDL section 281. In 1987, additional loft buildings were added to the protections of the Loft Law, including the subject building, pursuant to MDL section 281(4). Challenges to the validity of MDL section 281(4) have been rejected. City of New York v. Lower Manhattan Loft Tenants, N.Y.L.J., Nov. 21, 1989, at 21, col. 5 (Sup.Ct., N.Y.Cnty), aff'd sub nom. City of New York v. State of New York, 171 A.D.2d 629, 568 N.Y.S.2d 323 (1st Dep't), appeal dismissed, 78 N.Y.2d 951, 573 N.Y.S.2d 646, 578 N.E.2d 444 (1991); Oelbermann Assocs. Ltd. Partnership v. Borov, 141 Misc.2d 838, 535 N.Y.S.2d 315 (Civ.Ct., N.Y.Cnty.1988).

The subject building was registered by Petitioners with the Loft Board as an interim multiple dwelling ("IMD") pursuant to MDL section 281 without prejudice to Petitioners' right to contest before the Loft Board whether the subject building was really an IMD. See Loft Board Regulations section J(2)(A)(4). After Petitioners and Respondents conducted certain discovery, pursuant to this Court's earlier Decision and Order, and after Respondent ANEMA moved to dismiss, Petitioners admitted in their first set of cross-moving papers that the subject building is an IMD.

Respondent ANEMA argues that the Petition against her should be dismissed because it fails to state a cause of action, due to its failure to comply with 22 NYCRR section 208.42(g), which provides, in pertinent part:

In every summary proceeding brought to recover possession of real property pursuant to section 711 of the Real Property Actions and Proceedings Law, the petitioner shall allege either:

(1) that the premises are not a multiple dwelling; or

(2) that the premises are a multiple dwelling....

(emphasis added). Paragraph 8 of the Petition states, in part:

... the subject premises being either commercial in nature or an interim multiple dwelling.

(emphasis added).

A multiple dwelling is "a dwelling which is either rented, leased, let, or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other." MDL section 4(7). An interim multiple dwelling is defined by MDL section 281(1) as, inter alia, "the residence or home of any three or more families living independently of one another." It is termed "interim" because pursuant to MDL section 284(1), there are certain steps that a loft building owner must take within a limited period of time to convert the residential part of the building to a class A multiple dwelling. A class A multiple dwelling is defined by MDL section 4, subd. 8(a) as "a multiple dwelling which is occupied, as a rule, for permanent residence purposes."

Petitioners do not comply with 22 NYCRR section 208.42(g). Petitioners' allegation that the subject premises are "either commercial in nature or an interim multiple dwelling" does not state whether or not the premises is a multiple dwelling. It says that it may be either. Petitioners cannot have it both ways. The pleading rule requires a choice, which Petitioners have not made. Thus, the Petition in the holdover proceeding is dismissed without prejudice as to Respondent ANEMA.

For the same reason, the Petition in the holdover proceeding is dismissed against all Respondents therein. The other arguments for dismissal by Respondent ANEMA will not be addressed. The Court denies as academic Petitioners' first cross-motion to deem the motion of Respondent ANEMA a motion for summary judgment, or to issue a summary determination as to said Respondent.

By Order on a motion prior to the instant cross-motions, this Court had given Petitioners leave to amend their Petition in the summary proceeding for nonpayment of rent. Paragraph 11 of that Amended Petition alleges in part:

... the subject premises are either commercial in nature and rented for business purposes; or the subject premises are located in a building which may be an Interim Multiple Dwelling pursuant to Multiple Dwelling Law Article 7-C.

(emphasis added). Again, for the reasons stated above, this allegation of the Amended Petition violates 22 NYCRR section 208.42(g), and the Amended Petition is dismissed. The Amended Petition in the summary proceeding for nonpayment of rent is dismissed as to Respondent IRVING HALL ("HALL") for a further reason.

MDL section 284(1)(i) provides, in pertinent part:

The owner of an interim multiple dwelling (A) shall file an alteration application within nine months from the effective date of the act which added this article, and (B) shall take all reasonable and necessary action to obtain an approved alteration permit within twelve months from such effective date, and (C) shall achieve compliance with the standards of safety and fire protection set forth in article seven-B of this chapter for the residential portions of the building within eighteen months from obtaining such alteration permit or eighteen months from such effective date, whichever is later, and (D) shall take all reasonable and necessary action to obtain a certificate of occupancy as a class A multiple dwelling for the residential portions of the building or structure within thirty-six months from such effective date.

Petitioners admittedly have taken no steps to comply with these provisions. Petitioners argue that any attempts by them would have been futile because the City of New York has not amended the Zoning Regulation to permit residential use in the subject manufacturing (M1-6) zone, and because there are no standards and timetables for legalization of the subject building. Petitioners, in essence, blame the New York State Legislature for enacting what Petitioners contend is an incomplete law and the City of New York for not acting to implement the law. These arguments of Petitioners must fail.

In order to maintain a summary proceeding for nonpayment of rent, the owner of a building subject to the Loft Law must prove compliance with the legalization requirements set forth under MDL section 284(1)(i). County Dollar Corp. v. Douglas ("County Dollar "), 160 A.D.2d 537, 161 A.D.2d 370, 371, 556 N.Y.S.2d 533 (1st Dep't 1990); 902 Assocs. Ltd. v. Total Picture Creative Services, Inc., 144 Misc.2d 316, 317, 547 N.Y.S.2d 978 (App.Term, 1st Dep't 1989). A reasonable attempt at compliance with MDL section 284(1)(i) is insufficient. County Dollar, 161 A.D.2d at 371, 556 N.Y.S.2d 533. If an owner does not prove compliance with MDL section 284(1)(i), the owner is precluded from collecting rent by MDL section...