Jam. Seven, LLC v. Villa

• Decision Date: 29 May 2020
• Docket Number: 2018-1773 Q C
• Citation: 128 N.Y.S.3d 410 (Table),67 Misc.3d 138 (A)
• Parties: JAMAICA SEVEN, LLC, Appellant, v. Luis G. VILLA, Jr., Individually as Distributees of the Estate of Zoraida Orozco, Respondent, et al., Occupants.
• Court: New York Supreme Court — Appellate Term

67 Misc.3d 138 (A)

128 N.Y.S.3d 410 (Table)

JAMAICA SEVEN, LLC, Appellant,

v.Luis G. VILLA, Jr., Individually as Distributees of the Estate of Zoraida Orozco, Respondent, et al., Occupants.

2018-1773 Q C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist..

Decided on May 29, 2020

Horing, Welikson & Rosen P.C. (Niles C. Welikson of counsel), for appellant.

Catholic Migration Services (Thomas Power and Andrew Lehrer of counsel), for respondent.

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County ( Joel R. Kullas, J.), entered July 17, 2018. The order, insofar as appealed from, upon reargument, adhered to the determination in a prior order of that court dated February 28, 2018 which (1) granted the branches of a motion by occupant Luis G. Villa, Jr., seeking summary judgment dismissing the petition on the ground that occupant is entitled to succession rights as a first successor and to direct landlord to offer occupant a rent-stabilized renewal lease without a vacancy increase, and (2) denied landlord's cross motion for summary judgment, in a licensee summary proceeding.

ORDERED that the order entered July 17, 2018, insofar as appealed from, is modified by deleting the provisions thereof which, upon reargument, adhered to so much of the order dated February 28, 2018 as granted the branches of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition on the ground that occupant is entitled to succession rights as a first successor and to direct landlord to offer occupant a rent-stabilized renewal lease without a vacancy increase and substituting therefor provisions (a) granting the branch of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition for failure to state a cause of action, and (b) dismissing the branch of occupant's motion seeking to direct landlord to offer occupant a renewal lease without a vacancy increase; as so modified, the order, insofar as appealed from, is affirmed, without costs.

After the death of their mother, Luis G. Villa, Jr. (occupant) and his sister asserted succession rights and requested that landlord provide them with a renewal lease. Landlord acknowledged that occupant and his sister had succession rights and offered occupant and his sister a lease based upon such rights; however, the rent provided for in the lease was at a vacancy rate, rather than a renewal rate. When occupant and his sister refused to sign the lease tendered by landlord, landlord served a 10-day notice to quit and commenced this licensee summary proceeding ( RPAPL 713 [7] ) upon a bare allegation that occupant and his sister were licensees whose license had expired upon their mother's death. Occupant's answer and subsequent motion for summary judgment sought dismissal of the petition, including on the grounds that occupant had succession rights and that the licensee petition failed to state a cause of action because landlord had previously not disputed occupant's succession rights. Occupant's motion also sought an order directing landlord to offer occupant a renewal lease without a vacancy increase.

In opposition to the motion, landlord asserted that it was entitled to offer a renewal lease with a vacancy increase because occupant and his sister were second successors pursuant to Rent Stabilization Law of 1969 (Administrative Code of City of NY) § 26-512 (f), as occupant's mother had previously obtained succession rights to the apartment from her mother. Landlord also cross-moved for summary judgment.

In an order dated February 28, 2018, the Civil Court, among other things, granted the branches of occupant's motion seeking summary judgment on the ground that occupant has succession rights as a first successor and to direct landlord to issue a renewal lease without a vacancy increase. Landlord appeals from so much of an order of the Civil Court entered July 17, 2018 as, upon reargument, adhered to the February 28, 2018 determination.

Insofar as relevant to this appeal, this licensee summary proceeding is predicated upon a claim that occupant's license to occupy the...