Park Cent. I LLC v. Figueroa, 25249/2017

CourtNew York Civil Court
Citation104 N.Y.S.3d 866,64 Misc.3d 742
Docket Number25249/2017
Parties PARK CENTRAL I LLC and E & M Lafayette Apts LLC, Petitioner, v. Miguel FIGUEROA, Respondent, "John Doe" and Sophia Figueroa, Respondents-Undertenants.
Decision Date19 June 2019

The Law Offices of Scott Gross, for the Petitioner

Vernon & Ginsburg, LLP, for the Respondents

Karen May Bacdayan, J.

After oral argument and upon the foregoing cited papers, the decision and order on these motions is as follows:


Petitioner commenced the instant nonprimary holdover proceeding against Miguel Figueroa ("Miguel"), the tenant of record of the rent stabilized premises located at 820 Boynton Avenue, Apt. 2M, Bronx, NY 10473. Also named in the Petition as a respondent is Sophia Figueroa ("Sophia"), whom the parties do not dispute is Miguel's biological daughter.1 Petitioner claims that Miguel no longer occupies the apartment as his primary residence.

After Petitioner moved for discovery in August 2017, the case was marked off-calendar for document production and depositions of both Miguel and Sophia. Respondents subsequently filed a joint Answer through counsel alleging several defenses to the proceeding including Sophia's defense of entitlement to succeed to Miguel's tenancy. Discovery was completed in January 2018. The matter was then adjourned several more times and again marked off-calendar in contemplation of trial.

In December 2018 Petitioner filed the instant motion seeking summary judgment against both Miguel and Sophia. Petitioner argues it is entitled to judgment against Miguel because the undisputed facts establish he no longer occupies the subject premises as his primary residence. Petitioner seeks summary judgment against Sophia claiming that she cannot succeed to the tenancy under the prevailing law in the First Department.

Respondents oppose Petitioner's application and cross-move for summary judgment on Sophia's succession defense. Respondents' papers do not deny that Miguel no longer resides in the unit as his primary residence.

Oral argument was held on May 23, 2019.


Petitioner seeks summary judgment against Miguel asserting that, based on Respondents' sworn statements, it is not disputed that Miguel does not occupy the apartment as his primary residence. Petitioner annexes deposition transcripts to its motion, in which Miguel and Sophia admit that Miguel moved out of the premises in October 2013. (Petitioner's exhibit C, tr at 7; Petitioner's exhibit D, tr at 12.) Petitioner also attaches to its papers the affidavit of property manager Nathan Dessler who affirms that Miguel moved out of the premises prior to the service of the termination notice. As such, Petitioner argues, Miguel cannot establish that he had an ongoing, substantial physical nexus with the controlled premises for actual living purposes and therefore judgment against Miguel should be entered.

Petitioner also seeks summary judgment against Sophia arguing she is not entitled to succeed to Miguel's tenancy as a matter of law. Petitioner argues that the prevailing case law in the First Department, Third Lenox Terrace Assoc. v. Edwards , 91 A.D.3d 532, 937 N.Y.S.2d 41 (1st Dept. 2012), requires the Court to find that Miguel did not permanently vacate in October 2013 because by signing the 2015 renewal lease and continuing to pay rent in his name, he maintained an ongoing connection to the apartment even though he no longer occupied the unit as his primary residence. In Third Lenox succession, was denied to a remaining family member where the tenant of record continued to sign renewal leases and pay rent in her name for seven years after she ceased living in the premises as her primary residence. ( Id. ) Petitioner argues that, pursuant to Third Lenox , the Court must consider Miguel's permanent vacatur date to be April 30, 2017 which is the date the last renewal lease expired. As Miguel admits he actually vacated the premises in 2013 (four years prior to the expiration of the renewal lease), Petitioner argues that as a matter of law Miguel and Sophia could not have co-resided in the premises for the requisite two-year period prior to Miguel's permanent vacatur for Sophia to obtain succession rights.2

In opposition to Petitioner's motion for summary judgment against her,3 Sophia argues that she is entitled to summary judgment as a matter of law because she and Miguel co-resided in the apartment as a primary residence for the two years prior to Miguel's actual permanent vacatur in October 2013.

Respondents do not deny that Miguel signed the 2015 renewal lease after having vacated the premises and continued to make payments in his name. Instead, they claim that Sophia is entitled to succession despite Miguel having done so. Respondents ask the Court to distinguish this case from Third Lenox on its facts and likens the facts herein to those present in Jourdain v. NY St. Div. of Hous. & Community Renewal , 159 A.D.3d 41, 70 N.Y.S.3d 239 (2d Dept. 2018), an Appellate Division, Second Department case.

In Jourdain , the tenant of record vacated the premises eight years before the remaining family member asserted her claim to succession, continued to pay rent in her own name, and signed a renewal lease while she was admittedly not living in the apartment. ( Id. ) Notwithstanding these facts, the Court held that the remaining family member was entitled to succeed to the premises. ( Id. at 49, 70 N.Y.S.3d 239.) Sophia urges the Court to find that here, as in Jourdain , she is not barred from asserting her succession claim simply because Miguel signed a single renewal lease and continued to pay rent in his name after his actual permanent vacatur in 2013. This is especially true, Sophia argues, because Petitioner fails to allege any discernible prejudice caused by these acts.4 No prejudice exists, Respondents claim, because Petitioner was aware that Sophia resided in the premises since 2009, and Miguel requested Sophia be added to the lease on numerous occasions. (Affidavit of Miguel at 18-19, 22, 32.)

In addition to her own affidavit, Sophia attaches to her motion the affidavits of Miguel, and her mother, Daisy Apellaniz, both of which aver that Miguel and Sophia resided together in the premises from 2009 to 2013. Additionally, Sophia annexes documentary records which purport to reflect her continuous occupancy of the premises as her primary residence from 2009 to present. (Respondent's exhibits 1-6).


Summary judgment is a drastic remedy appropriate only where there is no doubt as to the absence of triable issues. ( Andre v. Pomeroy , 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974].) On such a motion, a court's function is to find, rather than to decide, issues of fact. ( Southbridge Towers, Inc. v. Renda , 21 Misc. 3d 1138[A], 2008 NY Slip Op. 52418[U], 2008 WL 5076468 [Civ. Ct., N.Y. County 2008], citing Epstein v. Scally , 99 A.D.2d 713, 472 N.Y.S.2d 318 [1st Dept. 1984].) The facts must be considered "in the light most favorable to the non-moving party." ( Ortiz v. Varsity Holdings, LLC , 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011].) The Court must accept as true the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. ( Warney v. Haddad , 237 A.D.2d 123, 654 N.Y.S.2d 138 [1st Dept. 1997] ; Assaf v. Ropog Cab Corp. , 153 A.D.2d 520, 544 N.Y.S.2d 834 [1st Dept. 1989].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of fact requiring a trial. ( Alvarez v. Prospect Hospital , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986].) If an issue is "fairly debatable a motion for summary judgment must be denied." ( Stone v. Goodson , 8 N.Y.2d 8, 12, 200 N.Y.S.2d 627, 167 N.E.2d 328 [1960].)

Petitioner's Motion for Summary Judgment against Miguel Figueroa

Section 2524.4 (c) of the Rent Stabilization Code allows a landlord to refuse to renew a stabilized tenant's lease if the tenant does not occupy the premises as his or her primary residence. The courts have interpreted "primary residence" to mean an "ongoing, substantial, physical nexus with the controlled premises for actual living purposes." ( Emay Props. Corp. v. Norton , 136 Misc. 2d 127, 129, 519 N.Y.S.2d 90 [App. Term, 1st Dept. 1987] ; E. End Temple v. Silverman , 199 A.D.2d 94, 94, 605 N.Y.S.2d 56 [1st Dept. 1993] ; Berwick Land Corp. v. Mucelli , 249 A.D.2d 18, 18, 671 N.Y.S.2d 44 [1st Dept. 1998].)

Based on the evidence and the Respondents' moving papers, Petitioner has established its prima facie entitlement to summary judgment against Miguel on its claim of nonprimary residence. As noted above, Respondent's opposition papers do not dispute that Miguel vacated the premises in 2013. In fact, Respondents in their papers repeatedly assert that Miguel vacated the premises in October 2013. (Affidavit of Miguel at 3, 27; affidavit of Sophia at 3, 15.) As Respondents raise no triable issues of fact as to Miguel's primary residence, the court grants Petitioner summary judgment against Miguel Figueroa.

Petitioner's Motion for Summary Judgment Against Sophia Figueroa

Petitioner claims it is entitled to a judgment against Sophia because, as a matter of law in the First Department, she cannot establish a claim for succession. While it is undisputed that Sophia qualifies as a family member eligible for succession under the Rent Stabilization Code, Petitioner alleges Sophia is barred from asserting her claim because she and Miguel did not co-occupy the premises for a period of two years prior to the expiration of the last renewal lease signed by Miguel. Petitioner relies on the definition of "permanent vacatur" espoused by the Appellate Division, First Department in Third Lenox . Conversely, Petitioner claims that even if the Jourdain reasoning is applied here and the date of permanent vacatur is October 2013,...

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    • New York Civil Court
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    ...rights to son of tenant of record who continued to both sign renewal leases and pay rent in her name); Park Central I LLC v. Figueroa (64 Misc 3d 742, 104 NYS3d 866 [Civ Ct Bx Co 2019] ); Park Cent I LLC v. Williams (62 Misc 3d 1225[A][Civ Ct Bx Co 2019] ); and see Matter of Jourdain v. New......

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