Cox v. J.D. Realty Associates

• Decision Date: 19 December 1995
• Citation: 217 A.D.2d 179,637 N.Y.S.2d 27
• Parties: Giulia COX and William Cox, Plaintiffs-Respondents, v. J.D. REALTY ASSOCIATES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 27

637 N.Y.S.2d 27

217 A.D.2d 179

Giulia COX and William Cox, Plaintiffs-Respondents, v. J.D. REALTY ASSOCIATES, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 19, 1995.

Amy Borress Glass, of counsel (Andrea J. Pincus on the brief, Anderson Kill Olick & Oshinsky, P.C., attorneys), for plaintiffs-respondents.

Jeffrey R. Metz, of counsel (Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C., attorneys), for defendant-appellant.

Before ROSENBERGER, J.P., and WALLACH, RUBIN, KUPFERMAN and MAZZARELLI, JJ.

RUBIN, Justice.

Defendant-appellant appeals from an order and judgment (one paper) of the Supreme Court, New York County (Carol Huff, J.), entered on or about April 27, 1995, which granted plaintiffs' motion for summary judgment and declared that they were entitled to possession of the subject premises.

This action is no more than an attempt to keep a landlord-tenant dispute from being heard in Civil Court, the forum explicitly designated to entertain such proceedings (N.Y. Const. art. VI, § 15[b]; CCA § 204; see also, CCA § 110). Plaintiffs have advanced no basis for injunctive and declaratory relief, their motion for summary judgment is premature and defendant landlord has not been afforded the opportunity to conduct discovery.

The only step taken thus far by defendant landlord in furtherance of recovering possession of the subject premises is the service of a 30-day notice of termination dated December 29, 1994 upon plaintiffs' parents, the tenants of record. The stated ground for seeking plaintiffs' eviction is that their parents do not use the premises as their own dwelling (City Rent and Rehabilitation Law § 26-403[e][2][i][10] [Administrative Code of City of N.Y., tit. 26, ch. 3]; New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6), having moved to a home in Connecticut, admittedly by 1991 and assertedly as early as 1981. In the absence of any notice to defendant landlord of the presence in the apartment of persons who may succeed to the tenancy, it is plaintiffs' affirmative obligation to demonstrate compliance with the New York City Rent and Eviction Regulations and, thus, establish their right to protection from eviction (9 NYCRR § 2204.6[d][2].

In a dispute involving succession rights, administrative proceedings before the Division of Housing and Community Renewal (City Rent and Rehabilitation Law § 26-408; 9 NYCRR § 2204.6) are not regarded as an exclusive remedy, and courts have traditionally exercised concurrent jurisdiction in such cases (Misthopoulos v. Estate of Ruhl, 183 A.D.2d 651, 652, 584 N.Y.S.2d 42, citing Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49). Moreover, the rent control statute expressly excludes from its protection "[h]ousing accommodations not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction" (City Rent and Rehabilitation Law § 26-403[e][2][i][10]; see also, McKinney's Uncons Laws of NY § 8625 [Emergency Tenant Protection Act of 1974 § 5; L.1974, ch. 576, § 4, as amended]. Where, as here, possession of an apartment is sought on the basis of non-primary residence, it falls to the courts to determine whether the premises are subject to the rent laws.

The availability of a judicial forum by no means implies an automatic right to equitable relief in Supreme Court. It is well settled that "the extraordinary remedies * * * of injunctive and declaratory relief * * * are available 'only where resort to ordinary actions or proceedings would not afford adequate relief.' " (Gaynor v. Rockefeller, 15 N.Y.2d 120, 132, 256 N.Y.S.2d 584, 204 N.E.2d 627, quoting Rockland Light & Power Co. v. City of New York, 289 N.Y. 45, 51, 43 N.E.2d 803). That judicial proceedings might be commenced is not a sufficient basis for the exercise of Supreme Court's equitable powers (Koob v. IDS Financial Servs., 213 A.D.2d 26, 32, 629 N.Y.S.2d 426). As the Court of Appeals has stated, "Civil Court has jurisdiction of landlord tenant disputes (see CCA 204) and when it can decide the dispute, as in this case, it is desirable that it do so" (Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, 28, 475 N.Y.S.2d 821, 464 N.E.2d 125 [Yellowstone injunction], citing Lun Far Co. v. Aylesbury Assoc., 40 A.D.2d 794, 338 N.Y.S.2d 84). As Post goes on to note, "If the tenant is unable to obtain complete relief in Civil Court, then the jurisdiction of Supreme Court is still available" (id., at 28, 475 N.Y.S.2d 821, 464 N.E.2d 125, citing Wilen v. Harridge House Assoc., 94 A.D.2d 123, 463 N.Y.S.2d 453 [Yellowstone injunction].

In support of their contention that a plenary action in Supreme Court is available to them, plaintiffs rely on Braschi v. Stahl Assoc. Co. (supra), a declaratory judgment action likewise involving succession rights. However, that case presented a novel question of law and culminated in a significant extension of the meaning of the term "family". As this Court noted, the circumstances of the tenant in Braschi required "equitable relief only available in the Supreme Court by way of a declaration of rights on a complex question of law" (Wilen v. Harridge House Assoc., supra, at 128, 463 N.Y.S.2d 453).

The instant matter presents no such novel issue and requires no complex determination of applicable law. Following Braschi, the New York City Rent and Eviction Regulations were amended (in December 1990) to include detailed succession rights, including a comprehensive statement of what is meant by the term "family member" (9 NYCRR § 2204.6[d][1], [3]; see, 911 Alwyn Owners Corp. v. Estate of Rosenthal, 157 Misc.2d 828, 829-830, 598 N.Y.S.2d 932). Insofar as relevant, these regulations provide that children of the tenant of record who resided with the tenant, either from the inception of the tenancy or for two years immediately prior to the permanent vacating of the premises by the tenant of record, are not subject to eviction.

What remains to be determined in this case is 1) precisely when the tenants of record permanently vacated the apartment, 2) whether plaintiffs took up primary residence in Guilford, Connecticut with their parents in the period between 1981 and 1991, during most of which they were teenagers and, 3) whether plaintiffs' residence in the apartment was otherwise "interrupted" except by excluded periods of temporary relocation during the two years immediately prior to the date their parents permanently vacated the premises. In this regard, it should be noted that a child is presumed to reside with the parents and "the presumption concerning the residence of the child is not easily rebutted, and should not be lightly cast aside" (Quiala v. Laufer, 180 A.D.2d 31, 35, 584 N.Y.S.2d 786; see, Catlin v. Sobol, 77 N.Y.2d 552, 559, 569 N.Y.S.2d 353, 571 N.E.2d 661). While strenuously resisting decision of these questions by Civil Court, plaintiffs fail to advance any reason why the resources of that forum are inadequate to afford complete protection of their rights and to warrant the stay of administrative and summary proceedings sought before Supreme Court (cf., Reynolds v. Division of Hous. & Community Renewal, 199 A.D.2d 15, 604 N.Y.S.2d 567 [illusory tenancy].

Dismissal of plaintiffs' declaratory judgment action is supported by a number of our cases, most of which are cited by Supreme Court in its memorandum decision, stating unequivocally that Civil Court is the appropriate forum to resolve disputes over the possession of leasehold premises (Scheff v. 230 East 73rd Owners Corp., 203 A.D.2d 151, 610 N.Y.S.2d 252 [strong rule against staying summary proceeding]; Jone v. Simkowitz, 163 A.D.2d 77, 79, 557 N.Y.S.2d 334, lv. denied 77 N.Y.2d 801, 566 N.Y.S.2d 586, 567 N.E.2d 980 [absent special need, matters regarding landlord-tenant relationship should be heard in Civil Court]; Kanter v. East 62nd St. Assoc., 111 A.D.2d 26, 27, 488 N.Y.S.2d 692 [tenant may obtain full relief in Civil Court by defending any summary proceeding]; Asherson v. Schuman, 106 A.D.2d 340, 342, 483 N.Y.S.2d 253 [Civil Court is the preferred forum for speedy disposition of landlord-tenant disputes]; Lun Far Co. v. Aylesbury Assoc., 40 A.D.2d 794, 338 N.Y.S.2d 84 [unless it clearly appears that relief is unavailable in a summary proceeding, it should not be stayed]; see also, Glen Briar Co. v. Silberman, 129 Misc.2d 439, 493 N.Y.S.2d 251 [Civil Court could decide issues raised in request for preliminary injunction]. In the absence of any showing that Civil Court is unable to afford complete relief to plaintiffs, there is no basis for the application to Supreme Court for declaratory and equitable relief. That possession of the apartment may ultimately be awarded to defendant landlord is not a predicate for enjoining summary proceedings as plaintiffs may protect their right to succeed to the statutory tenancy by defending any proceeding to recover possession that landlord might commence (Kanter v. East 62nd St. Assoc., supra ).

The evidence in this case consists almost entirely of material submitted by plaintiffs relating to their activities immediately prior to 1991 and thereafter. Included in the submissions is a conclusory affidavit from Martha Cox, plaintiffs' mother, together with her joint tax returns filed with John Cox for 1991, indicating part-year residence in New York. Conspicuously absent from the documentary evidence, however, is any indication of when the tenants of record purchased their home in Connecticut.

The only evidence submitted by defendant, which did not acquire the subject apartment building until September 7, 1994, is a short opposing affidavit by one of its partners. It simply attests to reports from its employees that plaintiffs' parents no longer reside at the subject apartment. Defense counsel's affidavit in opposition to plaintiffs' summary judgment motion recites the absence of discovery in this...