Golden Mountain Realty Inc. v. Severino

• Decision Date: 29 February 2012
• Citation: 36 Misc.3d 346,939 N.Y.S.2d 835
• Parties: GOLDEN MOUNTAIN REALTY INC., Petitioner, v. Abraham SEVERINO, 202 Mott Street, Apt. 17 New York, N.Y. 10012, Respondent.
• Court: New York Civil Court

36 Misc.3d 346
939 N.Y.S.2d 835

GOLDEN MOUNTAIN REALTY INC., Petitioner,
v.
Abraham SEVERINO, 202 Mott Street, Apt. 17 New York, N.Y. 10012, Respondent.

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

Feb. 29, 2012.

939 N.Y.S.2d 836

Donald Eng, Esq, New York, Attorney for Petitioner.

New York Legal Assistance Group, New York, Attorneys for Respondent.

SABRINA B. KRAUS, J.

36 Misc.3d 347

BACKGROUND

This summary holdover proceeding was commenced by GOLDEN MOUNTAIN REALTY INC. (Petitioner) against ABRAHAM SEVERINO (Respondent), seeking to recover possession of 202 MOTT STREET, APT. 17, NEW YORK, N.Y. 10012 (Subject Premises) based on the allegation that Respondent was a licensee who's right to possession had terminated with the death of Antonia M. Bido, a former tenant of record, or a subtenant no longer entitled to possession.

PROCEDURAL HISTORY

Petitioner issued a ten day notice to quit dated May 9, 2011. The notice was to Respondent and Manuel Severino, Respondent's father, who died on April 28, 2011. The notice sets forth the basis for the termination:

The reason is that you are in possession of the premises as a licensee and/or subtenant of Antonia M. Bido, who was the tenant of the premises at the time the licensee and/or sublease was made, that Antonia M. Bido is deceased, and that your

939 N.Y.S.2d 837

continued possession of the premises is without the permission of the landlord.

The notice required that Respondent and his father vacate on or before May 27, 2011.

The petition is dated June 20, 2011 and only names Respondent. The petition asserts that Respondent entered into possession of the Subject Premises as a licensee with the permission of Antonia M. Bido, the tenant of record at the time Respondent entered possession. The petition asserts there is no landlord tenant relationship between Petitioner and Respondent, and that the tenancy of Antonia M. Bido terminated by her death. The petition asserts that the Subject Premises is subject to the Rent Control Law and has been duly registered with DHCR.

36 Misc.3d 348

The proceeding was originally returnable in Part D on July 6, 2011, and was adjourned to August 4, 2011 at Respondent's request. On August 4, 2011, Respondent appeared by counsel, and the proceeding was adjourned to September 13, 2011. Respondent's time to answer was extended through August 19, 2011. Respondent's answer asserts nineteen affirmative defenses and eleven counterclaims¹ . Included in the defenses are: Respondent's claim of estoppel and waiver based on Petitioner's accepted rent from Respondent's father for 22 years; and that Respondent is entitled to succession rights to the Subject Premises. Succession is only asserted as an affirmative defense not as a counterclaim.

Respondent's answer asserts that he has resided in the Subject Premises since about 2005, when he moved in with his father, who resided in the Subject Premises since approximately 1968. The answer asserts that Respondent's father moved into the Subject Premises with Antonia Bido, and that they were married at the time they moved in.

On September 13, 2011, the proceeding was transferred to Part X. On January 9, 2012, the proceeding was assigned to Part R for trial. The trial commenced and concluded on January 9, 2012. The parties submitted post trial memos on January 20, 2012, and the Court reserved decision.

PRIOR LITIGATION

On April 21, 2011, an illegal lockout proceeding was commenced by respondent and his father, in reference to the Subject Premises under Index No. 64998/2011 and was returnable on April 27, 2011.² The petition asserted there was a fire in the Subject Premises on March 3, 2011, and that since that date Petitioner had not allowed Respondent and his father access to the Subject Premises. The petition further asserted that a notice of eviction was posted regarding the Subject Premises on April 20, 2011.

Petitioner, represented by the same counsel as in the underlying proceeding filed opposition papers to Respondent's motion. As a result of the fire, HPD issued a partial vacate order, which covered the Subject Premises. Petitioner asserted that Respondent had contacted

36 Misc.3d 349

management, after the fire, to request a letter confirming his occupancy and this led to Petitioner's discovery that Antonia Bido was not occupying the Subject Premises.

Petitioner then issued a thirty day notice to vacate to Antonia Bido based on nonprimary residence. The notice was

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dated April 13, 2011 and provided in pertinent part:

The bases of the landlord's belief that you are not occupying the premises as your primary residence are:

(a) that you are unknown to the landlord and have never been seen in the premises by the landlord;

(b) that your rent is paid by money orders bearing your name but always tendered by others;

(c) that the premises are occupied by Herman Severino and others;

(d) that the apartment was damaged by a fire and the occupants requested a letter from the landlord identifying a person other than you to be the legal tenant;

(e) that a request to the occupants for information regarding your residency and familial relationship to the occupants was unanswered.

Respondent commenced the lockout proceeding in response to said notice. On April 27, 2011 the proceeding was dismissed by the Court (Spears, J) who noted on the file the basis of the dismissal as "because the premises was closed due to a fire."

TRIAL

Petitioner purchased the subject building in 1984 (Exhibit 1 is the certified deed). Mr. Lee is the registered managing agent for the building, and has been collecting rent for the building since 1984. Mr. Lee goes to the building at least once a week. When Mr. Lee is not available to collect the rents, someone else does, and provides the collected rents to him. Mr. Lee has personal knowledge of all rent payments made since 1984. Mr. Lee testified that through 2011, rent for the Subject Premises was paid by money order, which was generally slipped under the door to apartment 5 in the building. Apartment 5 is used by Petitioner as an office in the building. The name on the money orders submitted was Antonia M. Bido. The last money order Petitioner received in the name of Antonia Bido was in February 2011.

In 1984, Antonia Bido was registered as the tenant of record for the Subject Premises at a rent of $72.60 per month (certified

36 Misc.3d 350

DHCR record Exhibit 3). In approximately 1985 or 1986, Mr. Lee attempted unsuccessfully to learn the identity of the tenants in the Subject Premises, no further attempts were made after this date. The parties stipulated that Antonia Bido died in 1989. Antonia Bido died in the Dominican Republic.

There was a fire in the building on or about March 2, 2011, which damaged many apartments, and resulted in a vacate order being issued for four apartments in the building, including the Subject Premises. Petitioner is in the process of repairing the apartments damaged by the fire, and acknowledged that an HP proceeding had been instituted regarding the repairs on these units. As of the time of the trial the four damaged apartments, including the Subject Premises were not habitable and not occupied. After Mr. Lee's testimony Petitioner rested.

Respondent was born in 1948. Respondent lived in the Subject Premises with his parents and brother from 1968 until 1972, when he married and moved out. Respondent later moved to an apartment at 239 Mulberry Street where he lived for approximately thirty years. The apartment on Mulberry Street is located about one block from the Subject Premises, which enabled Respondent to visit his parents daily. Respondent worked for Macy's for thirty years as a cook, and speaks only a little English. Respondent had an accident

939 N.Y.S.2d 839

in 1995, and after that date stopped working and received disability benefits.

Respondent moved back into the Subject Premises in 2005, after his divorce was finalized (Judgment of Divorce Exhibit D).

Respondent's parents were born in the Dominican Republic and did not speak English. Antonia Bido and Manuel Severino were married (marriage certificate for Manuel Severino and Mercedes Bido Exhibit C) and moved into the Subject Premises in 1968. Respondent's mother spent three to four months a year in the Dominican Republic, and was never there for longer than six months at a time. Respondent's parents would travel annually to the Dominican Republic, with his mother leaving earlier in the year, and his parents returning to New York together.

From 1987 to 1989 Respondent's parents lived in the Subject Premises with his two brothers and a cousin, Jose Luna. Respondent testified...