OH 161st St. LLC v. Brooks
| Decision Date | 19 February 2019 |
| Docket Number | 028870/2018 |
| Citation | 94 N.Y.S.3d 803 |
| Parties | OH 161ST STREET LLC, Petitioner, v. Barry BROOKS, Respondent, Rosa DeJesus, "John Doe" and "Jane Doe", Respondents-Undertenants. |
| Court | New York Civil Court |
Jason D. Boroff, New York, N.Y. and Associates, PLLC, by David Lee, Esq. for the Petitioner
The Legal Aid Society, by Vanessa Adegbite, Esq. for the Respondent-Brooks
The decision and order on this motion is as follows:
PROCEDURAL POSTURE AND FACTS
This is a holdover proceeding brought against Respondent, Barry Brooks ("Respondent"), on the grounds that he is violating a substantial obligation of his rent-stabilized tenancy. Mr. Brooks lives in state-funded supportive housing for people with psychiatric disabilities and substance abuse problems. Petitioner claims that Respondent routinely violates the visitors' policy contained in the agreements which govern his tenancy by allowing Rosa DeJesus ("Ms. DeJesus"), to reside in the premises.1 Respondent claims that Ms. DeJesus does not reside in the subject premises; rather, she (Affirmation of Respondent's counsel at 8.)2
Respondent moves to dismiss the proceeding pursuant to CPLR 3211(a)(7) for Petitioner's failure to state a cause of action. In her affirmation, Respondent's attorney frames her argument and states that the visitors' policy found in the residency agreement unlawfully restricts Respondent "from hosting overnight visitors in his home" in violation of Section 235-f of the Real Property Law.3 (Affirmation of Respondent's counsel at 13.) Respondent's argument is further elucidated in his proposed late answer: "Petitioner's occupancy restriction is against public policy pursuant to N.Y.R.P.L. 235-f... as it unfairly restricts visitation to two and a half days out of the week." (Proposed late answer at 1 and 3.) Respondent also argues that the visitors' policy "is an infringement of the Respondent's First Amendment rights pursuant to the United States of America Constitution." (Affirmation of Respondent's counsel at II.) In the alternative, Respondent seeks leave to serve a late answer asserting the defenses above, as well as breach of the warranty of habitability ( RPL § 235-b ), along with counterclaims for damages pursuant to RPL 235-b, for an order to correct violations in the apartment pursuant to sections 110 (c) of the Civil Court Act and 27-2121 of the Administrative Code of the City of New York, and for attorneys' fees.
Petitioner opposes Respondent's motion by stating that the visitors' policy does not violate the roommate law (affirmation of Petitioner's counsel at 10), and that the policy is constitutional as the state has a compelling interest in limiting visitation in this supportive housing facility, and that the policy accomplishes this goal and is not unduly burdensome. (Affirmation of Petitioner's counsel at 17.) Neither Mr. Brooks nor Ms. DeJesus has submitted an affidavit; nor has Respondent submitted papers in reply. Oral argument was heard on January 31, 2019.
In evaluating Respondent's request for dismissal under CPLR 3211(a)(7), the court must afford the pleadings a liberal construction. ( Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1984] ; see also CPLR 3026.) "The facts as alleged in the [petition]" must be accepted as true, the Petitioner must accorded "the benefit of every possible favorable inference," and the court may "determine only whether the facts as alleged fit within any cognizable legal theory." (See id. at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511.) "Dismissal of the complaint is warranted if the [petitioner] fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." ( Connaughton v. Chipotle Mexican Grill, Inc. , 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] [internal citations omitted] ). When evidentiary material is submitted in support of an application under CPLR 3211 (a) (7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." ( Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977].)
The roommate law was enacted as part of the Omnibus Housing Act of 1983 in response to courts that "refus[ed] to extend the protection of the human rights law to unrelated persons sharing a dwelling." (L 1983, ch 403, § 1.) The law is designed to prevent evictions of residential tenants who have nontraditional living arrangements with co-occupants of the apartment for reasons of economy, safety, and companionship. (Id. )
RPL § 235-f, which is entitled "Unlawful Restrictions on Occupancy," provides, in pertinent part:
A roommate is a person, "other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." ( RPL § 235-f[1][b].) Roommates may not succeed to a rent-regulated tenancy, and so differ from traditional or non-traditional immediate family members in that way.4 A roommate is also different from a guest, "who is temporarily received and entertained at one's home but who is not a regular occupant." (Hon. Gerald Lebovits, Roommates in New York Law , 34 NYSBA NY Real Property Law Journal 73 [Fall 2006], available at https://works.bepress.com/gerald_lebovits/73/ [last accessed Feb. 12, 2019]; see also Black's Law Dictionary [10th ed 2014], guest) [Note: online version].)
The relationship that the statute intends to govern is not the one restricted by Petitioner's visitors' policy. Visitors and guests are not roommates and do not qualify as permitted occupants under the statute. A roommate is a long-term co-occupant of an apartment with the lease-holder, with whom the entire living area is shared . ( Brookford, LLC v. Penraat , 47 Misc. 3d 723, 733, 8 N.Y.S.3d 859 [Sup. Ct., N.Y. County 2014] [internal citations omitted].) "[The roommate law] contemplates that the occupant reside in the apartment together with the tenant." (150 E. 3rd St. Assocs. v. Harper , 1990 NY App Div LEXIS 16874 [App Term, 1st Dept, April 25, 1990, No. 90-352].)
It follows that courts have found in the context of illegal sublet proceedings that where a tenant no longer lives in the apartment because they are either incarcerated,5 or have been temporarily reassigned for work,6 even though the apartment may still be a tenant's primary residence, they are not protected by the roommate law because they do not share or reside in the apartment with the occupant.
Ms. DeJesus is a guest. As previously stated, she visits often, (Affirmation of Respondent's counsel at 8.) Respondent himself confirmed at oral argument that Ms. DeJesus does not live with him in his apartment and alternately stays elsewhere.
While this court may have found otherwise had Respondent argued and the facts had supported that Ms. DeJesus shares and resides in the apartment together with Respondent, based on Respondent's submissions and statements, RPL § 235-f is inapplicable to the case at bar because it does not protect Respondent from having visitors in violation of a visitors' policy. Thus, Respondent's motion to dismiss the proceeding for Petitioner's failure to state a cause of action because the visitors' policy upon which Petitioner bases its claim is in derogation of the occupancy protections set forth in section 235-f of the Real Property Law is denied.
Respondent asserts through his attorney, unsupported by his own affidavit, that the visitors' policy set forth in the lease and the residency agreement violates his First Amendment right of association.7 It is not clear from Respondent's attorney's affirmation whether the policy is being challenged as facially invalid, or as it is applied to him. A successful facial challenge to the constitutionality of the visitors' policy would invalidate the policy in its entirety on the basis that every application would be unconstitutional; a successful as-applied challenge would find the policy unconstitutional as it is applied to the particular facts of Respondent's case. As has been explained by the Appellate Division in the First Judicial Department:
( Real Estate Bd. Of New York, Inc. v. City of New York , 165 A.D.3d 1, 9 n. 3, 84 N.Y.S.3d 33 [1st Dept. 2018], quoting Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174-175 [2d Cir. 2006].)
Courts should make a finding of facial invalidity sparingly and in exceptional circumstances. (See Ayotte v. Planned Parenthood of N. New England , 546 U.S. 320, 328-30, 126 S.Ct. 961, 163 L.Ed.2d 812 [2006] [...
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