Fifth Ave. LLC v. Wertheimer

• Decision Date: 07 October 2014
• Docket Number: No. L & T 76946/2010.,L & T 76946/2010.
• Citation: Fifth Ave. LLC v. Wertheimer, 999 N.Y.S.2d 798(Table) (N.Y. Civ. Ct. 2014)
• Court: New York Civil Court
• Parties: FIFTH AVENUE LLC, Petitioner–Landlord v. Holly WERTHEIMER 20 Fifth Avenue, Apt 6B New York, New York 10011, Respondent–Tenant “John Doe” and “Jane Doe” Respondent–Occupants.

999 N.Y.S.2d 798 (Table)

FIFTH AVENUE LLC, Petitioner–Landlord

v.Holly WERTHEIMER 20 Fifth Avenue, Apt 6B New York, New York 10011, Respondent–Tenant “John Doe” and “Jane Doe” Respondent–Occupants.

No. L & T 76946/2010.

Civil Court, City of New York, New York County.

Oct. 7, 2014.

Jeffrey M. Goldman, Esq., New York, for Petitioner.

Dawn K. Kelly, Esq., Koehler & Isaacs, LLP, New York, for Respondent.

Anna Nechayev, Esq., Brooklyn, Guardian Ad Litem.

SABRINA B. KRAUS, J.

BACKGROUND

The underlying summary holdover proceeding was commenced by 20 FIFTH AVENUE LLC(Petitioner) against HOLLY WERTHEIMER(Respondent), the rent-stabilized tenant of record based on the allegation that Respondent has failed to maintain the Subject Premises as her primary residence. Both parties are represented by counsel and a guardian ad litem (GAL) has been appointed for Respondent.

The pleadings asserted that Respondent has been living in the same building as the Subject Premises, but that she lives in Apartment 8G with Matthew Danoski (Danoski). Respondent has filed an answer wherein she asserts that any absence from the Subject Premises is a result of her suffering from severe agoraphobia.

PROCEDURAL HISTORY

Petitioner issued a Notice of Non–Renewal dated April 23, 2010, advising Respondent that her last lease, which expired July 31, 2010, would not be renewed based on her alleged non-primary residence. The Notice asserted that based on a private investigation and observations of building personnel, Respondent rarely occupied the Subject Premises, and resided in apartment 8G with Danoski. The Notice asserted Respondent had occupied the Subject Premises for less than 183 days per year. The petition is dated August 2, 2010, and the proceeding was originally returnable September 2, 2010.

Respondent appeared by counsel on the initial return date. On October 5, 2010, the parties entered a stipulation wherein Respondent consented to jurisdiction and agreed to serve an answer on or before October 21, 2010.

Respondent filed a verified answer on or about October 22, 2010. The answer asserts: a general denial; that the Subject Premises is Respondent's only residence; that any absence from the Subject Premises by Respondent was due to a medical condition, specifically severe agoraphobia ; that Respondent never abandoned or vacated the Subject Premises; that Petitioner has waived its right to maintain this proceeding, because Petitioner knew Respondent was staying with Danoski since 2005 and took no action in regard to this fact; and that Respondent qualifies as a person with disabilities under the Americans with Disabilities Act of 1990, and Petitioner is required to make a reasonable accommodation for Respondent.

On January 18, 2011, Petitioner moved for discovery seeking an order directing Respondent to produce certain documents and appear for a deposition. Respondent consented to that part of the motion seeking production of documents pursuant to a stipulation entered between the parties on February 28, 2011. On April 5, 2011, Respondent cross-moved for a protective order. The motions were consolidated for disposition and granted per court order (Kaplan, J) on April 5, 2011, which provided that Respondent should answer interrogatories and that Petitioner could renew its motion for an EBT if needed after the interrogatories “... in a manner tailored to accommodate respondent to the extent possible.” The proceeding was marked off calendar pending completion of discovery.

On June 18, 2012, Petitioner moved for an order restoring the proceeding to the calendar, an order of preclusion pursuant to CPLR 3126 based on Respondent's failure to produce medical records, and setting a trial date. The motion was settled by the parties' stipulation which provided that Respondent would produce additional documentation and refrain from calling two witnesses at trial, one of whom was represented to be deceased. The proceeding was adjourned to August 2, 2012 for trial. Respondent reserved the right to move for the appointment of a Guardian Ad Litem.

On August 2, 2012, Respondent moved for an order appointing a Guardian Ad Litem for Respondent and related relief. The motion was granted by the court (Elsner, J) on the return date on consent. The court order reopened discovery to allow Respondent to supplement responses to interrogatories and documents previously provided, and the proceeding was adjourned to September 19, 2012 for the Guardian Ad Litem to appear. On August 14, 2012, the court signed an order appointing Anna Nechayev as GAL (GAL).

On September 19, 2012, the proceeding was adjourned by the Court for the GAL to meet with Respondent.

On December 6, 2012, Petitioner moved for leave to conduct an independent medical examination of Respondent. On January 15, 2013, Respondent cross-moved for discovery and a protective order. The motions were argued and submitted on February 28, 2013, and on March 9, 2013, this Court issued an order consolidating the motions for disposition and granting Petitioner's request for an independent exam.

On October 8, 2013, Petitioner moved for an order restoring the proceeding to the calendar for trial. The motion was granted by this court pursuant to an order dated November 13, 2013, providing that any final motions were to be made within 20 days and scheduling trial for January 23, 2014.

On March 26, 2014, the case was transferred by the court (Wendt, J) for assignment to a trial judge. On May 7, 2014, the proceeding was assigned to Part L for trial. Respondent made an application for this Court to recuse itself, based on the Court's familiarity with the proceeding in connection with discovery orders previously issued. The Court denied the application. The trial commenced with the parties marking documents for identification. The trial continued on June 2, 18, and August 1, 2014. On August 1, 2014, the trial concluded and the proceeding was adjourned to September 16, 2014, for the submission of post trial memoranda.

On September 16, 2014, post trial memorandum were submitted, and the Court reserved decision.

FINDINGS OF FACT

Petitioner is the owner of the subject building pursuant to a deed dated December 1, 2003 (Ex 1). There is a valid multiple dwelling registration on file with HPD (Ex 2). Respondent is the rent-stabilized tenant of record of the Subject Premises, pursuant to an original written lease dated July 18, 1994 (Ex 4) and most recently renewed for a period through and including July 31, 2010 (Ex 5). When Respondent executed her April 1, 2006 renewal (Ex 16) Respondent attached a hand written note stating “I would still like to switch apt & surrender 6B for total upgrade PLEASE CONSULT INFO before executing!!! Much better deal for Solil Management!”

DHCR records as of June 6, 2013 show Respondent as the registered tenant of record with a legal registered rent of $1500.24 per month (Ex 3).

Petitioner hired a private investigator to install a surveillance camera outside the Subject Premises. The parties stipulated to the admission into evidence of a Video Report of Samatt Research Inc. covering a period of July 6, 2009 through July 21, 2010 (Ex 6). According to the Report during this entire period, Respondent spent one night in the Subject Premises entering July 18, 2009 at approximately 11:30 pm and leaving the next morning at approximately 9:300 am. Respondent did not substantially dispute this evidence, but implied through Danoski's testimony, that she may have been in the apartment on one additional occasion during this period to get a pair of shoes.

Danoski testified on behalf of Respondent. Danoski is the tenant of record of Apartment 8G in the subject building. Respondent formerly lived in apartment 8G in the subject building. Danoski has lived in Apartment 8G since 1994, and previous to taking over Respondent's lease, he and the Respondent lived together in apartment 8G for a brief period in the 1990s, while Respondent was still the tenant of record of that apartment. Apartment 8G is a studio apartment.

Danoski works as an editor for CBS for the news program 60 Minutes. Danoski met Respondent in 1989, when Respondent was working at CBS. Danoski described Respondent as vivacious, confident and outgoing when they met. Respondent and Danoski were coworkers and in 1989 or 1990 they started dating. According to Danoskui, they had a “fling” that lasted less than a year. During this period, Danoski and Respondent spent time living together in apartment 8G at the subject building.

In 1994, Respondent told Danoski that she was going to give up her tenancy in Apartment 8G, and move to a one bedroom apartment in the same building, however in order to effectuate the transfer, Respondent needed someone to immediately take over her lease. This occurred in June or July of 1994. Danoski took over the lease for apartment 8G, and Respondent moved into the Subject Premises.

Danoski testified that as time went on, Respondent became remote and much less communicative. Danoski testified that he observed the change starting in January 1994 and continuing for approximately two and a half years. During this period, Danoski and Respondent remained very close and spent a lot of time together. By December 1995/January 1996 Respondent was no longer able to keep working at CBS. Around this period new digital editing equipment came into favor that changed the nature of Respondent's work. Respondent had difficulty with the new equipment. Respondent also had an ongoing conflict which had developed with one of her supervisors at work. Respondent stopped working and went on disability as of early 1996.

Danoski testified that after going on disability Respondent slept a tremendous amount and started cutting herself. Respondent showed Danoski where she had cut her legs. In 1999 or 2000 Respondent began to visit Danoski in his apartment, and regularly spend time there.

Danoski admitted that Respondent was regularly occupying Apartment in 8G by 2002. Respondent cooking...