Clent Realty Co. v. Levine

• Decision Date: 27 June 2018
• Docket Number: LT–004215–17NA
• Citation: 78 N.Y.S.3d 915
• Parties: CLENT REALTY CO., L.P., Petitioner, v. Mark LEVINE and Joy Smith, "John Doe" and "Jane Doe," Respondents.
• Court: New York City Court

78 N.Y.S.3d 915

CLENT REALTY CO., L.P., Petitioner,

v.Mark LEVINE and Joy Smith, "John Doe" and "Jane Doe," Respondents.

LT–004215–17NA

District Court, City of New York, New York.

Decided June 27, 2018

Schneider Buchel LLP, 666 Old Country Road, Suite 412, Garden City, New York 11530, (516) 393–5555, attorneys for Petitioner.

Citak & Citak, 270 Madison Avenue, Suite 1203, New York, NY 10016, (212) 759–9585, attorneys for Respondents.

Scott Fairgrieve, J.

Petitioner has commenced this holdover proceeding against Respondents Mark Levine and Joy Smith, to evict them from 5 Clent Road, Apt. 2J, Great Neck, New York. The Respondents have alleged to "have sublet the premises on a short term basis in violation of ETPA 2507.7 and RPL 226–b," see paragraph 4 of the first cause of action of the Petition.

It is further alleged that the use of the premises as a "hotel" violated Nassau County fire prevention ordinances and constituted an illegal use under the Village of Great Neck Plaza code. See paragraph 5 and 6 of the first cause of action of the Petition.

The Petition alleges that Respondents were served with the Notice of Default on or about July 19, 2017. The Notice, dated July 19, 2017, provides that the Respondents violated the Lease due to an illegal sublease:

"PLEASE TAKE NOTICE that it has come to the attention of Clent Realty Co., L.P. ("Landlord") that you are in violation of law and have rendered landlord subject to civil penalties by reason permitted unauthorized transient occupant(s) to reside in the premises known as 5 Clent Road, Apt. 2J, Great Neck, New York 11021 ("Premises"), for hire and without the express written consent of the Landlord. Specifically, you subleased and/or permitted unidentified occupants to contract for and briefly reside in the Premises for payment through AirBNB.com or otherwise. This is a breach and violation of your lease ("Lease"), Real Property Law 226–b, which is made expressly applicable to your Lease by 2505.7 of the Emergency Tenant Protection Act ("ETPA"),

(a) Housing accommodations subject to these regulations may be sublet in accordance with the provisions, and subject to the limitations, of section 226–b of the Real Property Law provided the additional provisions of this section are complied with and provided further that the prime tenant can establish that at all times he has maintained the housing accommodation as his primary residence and intends to occupy it as such at the expiration of the sublease."

The Notice states that the Respondents violated ETPA § 2504.2 (c) and (d), and Great Neck Plaza Code § 225–90.1.

The Notice further claims that Respondents' actions are incurable and/or willful:

"PLEASE TAKE NOTICE, that your actions are incurable [ ETPA § 2504.1(d)(2)(I) ] or are a willful violation your obligations as tenants inflicting serious and substantial injury on the Landlord or the property. ETPA § 2504.1(d)(2)(iii). As such, for the foregoing reasons, the term of your tenancy will expire on July 31, 2017 and all of your right, title, and interest in the Lease and the Premises shall thereupon wholly cease and expire and you will be required to quit and surrender the apartment to the Landlord."

Respondents' answer, dated September 29, 2017, denies the allegations of the Petition. Several affirmative defenses are asserted, including failure to serve prerequisite notices, failure of Petitioner to act in good faith, and Respondents' actions not constituting a substantial violation of the lease.

Respondents move for summary judgment supported by the Affidavit of Respondent Mark Levine, dated January 31, 2018, executed in the State of Florida. Mr. Levine states that Joy Smith is his wife. Respondent Mark Levine signed the Lease for Apt. 2J on September 20, 1996, and has resided in the apartment for more than 21 years. He recently purchased a boat which he hopes to moor in Great Neck or Port Washington. An Extension Lease was signed for the period from November 1, 2016 to October 31, 2018.

Respondent Mark Levine states that, in the past, there were two prior attempts to evict them as follows:

(a) unsuccessful attempt to evict based upon lack of primary residence;

(b) unsuccessful 2005 proceeding to evict for illegal subletting. Respondents note that Petitioner served a Notice to Cure in the 2005 proceeding.

Mr. Levine attacks the present proceeding because the sublet lasted only four (4) nights and ended seven (7) months prior to this proceeding being instituted.

Mr. Levine further states that his business endeavors require him to travel extensively throughout the U.S., Caribbean, and the Netherlands. Respondent Mark Levine advises that presently he is involved in advising small Caribbean nations on economic development.

Respondent Mark Levine also states that he has extensive history of using Airbnb since 2011 for his employment travels. Respondent Mark Levine rents the two (2) condominiums that he owns in Florida to customers of Airbnb. He also uses Airbnb to assist an acquaintance located in Aruba.

Mark Levine acknowledges that he subleased the apartment to Victoria Gartstein aka Viktoria Gartstein (hereinafter "Viktoria Gartstein"), in 2014–2015, for which he received Petitioner's permission to sublease the apartment.

Mark Levine states that he listed the apartment on the Airbnb platform in December of 2016. Respondent Mark Levine was going through marital difficulties and work pressures at this time. Respondent Mark Levine writes that he decided to rent for four (4) nights from December 30, 2016 to January 3, 2017, to earn extra money "to deal with the financial pressures of mounting expenses."

Mark Levine states that he received the gross sum of $345 for the Airbnb rental, which was less then the monthly rent of $939.00.

Mark Levine alleges that he did not rent the apartment to anyone else based upon an Airbnb listing.

Mark Levine acknowledges that he continued to list the property on the Airbnb platform for several months after January 3, 2017. Respondent Mark Levine urges that Nassau County has no law regulating listings on Airbnb.

Mark Levine states that no notice to cure was served upon him or his wife Joy Smith. Respondent Mark Levine writes that in 2005, a notice to cure was served regarding an alleged illegal sublet.

At bar is a letter, dated July 19, 2017, terminating the Lease, which was mailed on July 27, 2017, and not delivered until July 28, 2017.

The Respondents' motion for summary judgment is further supported by the Affirmation of counsel, Donald L. Citak, dated January 31, 2018. Attorney Citak argues that Petitioner failed to comply with paragraph 17 of the Lease concerning notices to cure and default. Paragraph 17 states:

"17. Default

(1) You default under the Lease if You act in any of the following ways:

(a) You fail to carry out any agreement or provision of this Lease;

(b) You or another occupant of the Apartment behaves in an objectionable manner;

(c) You do not take possession or move into the Apartment 15 days after the beginning of this Lease;

(d) You and other legal occupants of the Apartment move out permanently before this Lease ends;

If You do default in any one of these ways, other than a default in the agreement to pay rent, Owner may serve You with a written notice to stop or correct the specified default within 10 days. You must then either stop or correct the default within 10 days, or, if You need more than 10 days, You must begin to correct the default within 10 days and continue to do all that is necessary to correct the default as soon as possible.

(2) If You do not stop or begin to correct a default within 10 days, Owner may give You a second written notice that the Lease will end six days after the date the second written notice is sent to You. At the end of the 6–day period, this Lease will end, You then must move out of the Apartment. Even though this Lease ends, You will remain liable to Owner for unpaid rent up to the end of this Lease, the value of your occupancy, if any, after the Lease ends, and damages caused to Owner after that time as stated in Article 18.

(3) If You do not pay your rent when this Lease requires after a personal demand for rent has been made, or within three days after a statutory written demand for rent has been made, or if the Lease ends, Owner may do the following: (a) enter the apartment and retake possession of it if You have moved out; or (b) go to court and ask that You and all other occupants in the Apartment be compelled to move out.

Once the Lease has been ended, whether because of default or otherwise, You give up any right You might otherwise have to reinstate or renew the Lease."

Mr. Citak points out that a 10 day notice to cure was served. Respondents contend that the Lease requires a six (6) days notice of a default. Respondents cite Rent Stabilization Code at 9 NYCRR § 2524.2(c)(2) for the rule that a seven (7) day notice of termination must be served. It is argued that since Petitioner overnighted the termination notice on July 27, 2017 for delivery on July 28, 2017, with a termination date of July 31, 2017, Petitioner's actions constitute a failure to comply with the Lease (requiring six [6] days notice) and Residential Stabilization Code § 2524.2(c)(2) (requiring seven [7] days notice).

Respondents also attack the alleged fact that the termination notice was not served upon both Mark Levine and Joy Smith. Counsel states that both names appear on the Lease, which is Exhibit 1, of their motion for summary judgment. However, a review of Exhibit 1 by the court demonstrates that the Lease, dated September 30, 1996, only bears the name of Mark Levine. In fact, the name of Joy Smith appears only on page 6 of the Residential Lease Form of Apartment, where it is crossed out and initialed.

Respondents argue that in 2005 a notice to cure was served based upon an illegal sublet case involving the same parties. Therefore, Respondents maintain that a notice to cure was also required in the instant proceeding.

Petitioner...