Pedote v. STP Assocs., LLC

• Decision Date: 23 July 2012
• Docket Number: No. 12–004729.,12–004729.
• Citation: 2012 N.Y. Slip Op. 51521,959 N.Y.S.2d 91,36 Misc. 3d 1227
• Parties: Barbara PEDOTE, Nelson Hess, Darlene Funk, Marcy Rappaport, Dale Ebersberger, Catherine Snyder, Lisa Caramico, Jacqueline Nargi, Debbi St. Clair, Nancy Drasser, Alexandra Kostos, Phillip Schmidt, Edward Kessler, Elizabeth McCauley, Jeanette Jaroslawski, Anna Sessa, Connie Sessa, Rose Renate–Karsch, Randi Portnoy, Theresa Walch, William Stonestreet, Susan Stonestreet, Josephine Blancuzzi, Roseann McCann, Diane Johnson, Andrew Fromia, Plaintiffs, v. STP ASSOCIATES, LLC, Defendant.
• Court: New York Supreme Court

36 Misc.3d 1227

959 N.Y.S.2d 91

2012 N.Y. Slip Op. 51521

Barbara PEDOTE, Nelson Hess, Darlene Funk, Marcy Rappaport, Dale Ebersberger, Catherine Snyder, Lisa Caramico, Jacqueline Nargi, Debbi St. Clair, Nancy Drasser, Alexandra Kostos, Phillip Schmidt, Edward Kessler, Elizabeth McCauley, Jeanette Jaroslawski, Anna Sessa, Connie Sessa, Rose Renate–Karsch, Randi Portnoy, Theresa Walch, William Stonestreet, Susan Stonestreet, Josephine Blancuzzi, Roseann McCann, Diane Johnson, Andrew Fromia, Plaintiffs,

v.STP ASSOCIATES, LLC, Defendant.

No. 12–004729.

Supreme Court, Nassau County, New York.

July 23, 2012.

William V. Rapp, Esq., Scarborough, for Plaintiff.

Jeffrey A. Miller, Esq., Westerman Ball Ederer Miller & Sharfstein, Uniondale, for Defendants.

STEVEN M. JAEGER, J.

DefendantSTP Associates, LLC(hereinafter STP) has owned the Syosset Trailer Park located at 80 West Jericho Turnpike, Syosset, New York, since 2007.Plaintiffs are owners of mobile homes and tenants of Syosset Trailer Park.

This is, to the Court's knowledge, the third action or proceeding brought by tenants of the Syosset Trailer Park against STP in this Court(Additionally, an entity known as Hope Assoc. of Syosset, LLC commenced a subsequent action against STP and others in this Court under IndexNo. 4940–12).

Procedural History

The history of the prior litigations are succinctly set forth in the decision and order of Justice Thomas P. Phelan dated December 10, 2010 dismissing the action entitled Drasser, et al. v. STP Associates, LLC, under IndexNo. 15465–09:

Defendant, STP Associates, LLC(“STP”), purchased the Syosset Trailer Park located at 80 West Jericho Turnpike, Syosset, New York, in 2007.Plaintiffs are the remaining tenants at the trailer park.Real Property Law § 233(e) requires each manufactured home park owner to offer each tenant the opportunity to enter into a lease with a term of not less than one year.On June 1, 2007, STP sent each tenant of the park a written lease in which it offered a one-year rental agreement.None of the plaintiffs executed the lease agreement.Therefore, as of September 1, 2007, they became month-to-month tenants of the park.In September 2007, STP terminated plaintiffs' tenancies.

In November 2007, it commenced eviction proceedings against each of the individual plaintiffs in the Nassau County District Court, First District, Landlord/Tenant Part.In response to those proceedings, plaintiffs commenced a lawsuit in Nassau County Supreme Court, entitled Amatuzio v. STP, indexnumber 021154/07 (the prior action).The first cause of action sought to void the sale of the park from Hormi Holding to STP based on an alleged violation of RPL § 233(b)(6).The second cause of action sought a court order directing STP to provide a six-month notice of change of use pursuant to RPL § 233 prior to commencing eviction proceedings.The third cause of action sought an order directing STP to modify the proposed written lease to include terms and conditions favorable to and desired by plaintiffs.The fourth cause of action alleged that the proposed rent increase by STP violated RPL § 233(g)(3) and sought an order directing compliance with that requirement.

Simultaneously with the filing of the prior action, plaintiffs sought and obtained a temporary restraining order from this court preventing STP from continuing the holdover proceedings and the District Court from considering the proceedings or issuing a judgment of eviction.In denying plaintiffs' request for a preliminary injunction, this court determined that STP offered leases to plaintiffs in accordance with the statute.None were executed, thereby creating a month-to-month tenancy.(Decision of the Hon. Thomas Phelan, dated 3/20/08, Amatuzio et al.(2008 N.Y. Slip Op. 30867(U), Sup.Ct. Nassau County)(p. 4)(the prior decision).On April 29, 2008, plaintiffs filed for, and were granted, a further stay of the summary proceedings by the Appellate Division, Second Department.

One of the major contentions of plaintiffs in the prior action was that they were entitled to a six-month change-of-use notice before the commencement of a holdover proceeding against residents of a manufactured home park.In the context of the prior action, on May 30, 2008, the parties agreed in a written stipulation to the following: 1) Defendant STP retroactively withdrew all previous Notices to Terminate served on plaintiffs as if the same had never been served and retroactively restored the tenancies.The pending Holdover Summary Proceedings were withdrawn.2) In accordance with Real Property Law § 233(b)(6), STP agreed to serve six (6) months Change of Use notices on each plaintiff herein prior to commencing a Summary Holdover Proceeding based on a month-to-month termination.3) The second cause of action in plaintiff's Amended Complaint was withdrawn.4) Plaintiffs withdrew their appeal to the Appellate Division Second Department.

In June 2008, plaintiff served a Six Month Change of Use Notice, pursuant to Real Property Law § 233(b)(6) advising defendants that the owner proposed a change in the use of the park and that their month-to-month tenancies were terminated as of December 31, 2008.Pending the expiration of the notices of termination, defendant filed Non–Payment Summary Proceedings, which were concluded by stipulation.Plaintiffs settled the non-payment proceedings by paying approximately 19 months rent of the 23 claimed due.

On August 6, 2008, the prior action was discontinued with prejudice by stipulation.Three homeowners residing at the park (Giner Bonner, Marcy Rappaport and Lisa Caramico) were not provided with the Notice of Termination when the other plaintiffs were served.Defendant was prohibited by federal bankruptcy law from giving notice to those three homeowners (United States Bankruptcy Code,11 U.S.C. § 362).The bankruptcy stay relative to these three residents was lifted by the United States Bankruptcy Court, Eastern District of New York, on March 9, 2010(Orders of the Hon. Robert E. Grossman, dated March 9, 2010).These homeowners were served Notices of Change in Use on March 17, 2010, with a termination date of September 30, 2010.The court notes that on January 26, 2010, defendant also served Notices of Termination on each plaintiff advising that each of their tenancies would terminate on March 31, 2010.

In the action now before the court, plaintiffs again seek a preliminary injunction pursuant to CPLR 6311 enjoining STP from commencing any eviction proceedings against plaintiffs in reliance on its service on plaintiffs of the Notice to Quit dated September 15, 2009, that stated “Six Month Notice of Proposed Change in Use of the Land Comprising Syosset Trailer's Park.”Plaintiffs also seek an order directing summary judgment pursuant to CPLR 3212 on the first cause of action, declaring and setting forth the rights of the parties, specifying that plaintiffs are in good standing and were entitled to a written lease for a term of at least twelve months on or before October 1, 2009, containing terms and conditions, including provisions for rent and other charges, consistent with all rules and regulations promulgated by the manufactured home park owner/operator prior to the date of the offer, with rent charges identical to the rents currently paid by plaintiff; on the second and third causes of action, declaring and setting forth the rights of the parties, specifying that the Notices to Quit are null and void and of no effect; on the fourth cause of action, permanently enjoining STP from serving any further notices pursuant to RPL § 233, without leave of the court, on any of plaintiffs or until such time as the court may determine that STP is in compliance with the requirements of RPL § 233(b)(6)(i); and declaring that pursuant to RPL § 233(b)(6), STP may only move forward to evictions based on an actual change in use, not a proposed change in use.

Justice Phelan dismissed the Drasser complaint, holding that STP's September, 2009 Change of Use Notices complied with RPL § 233 as a predicate to commence holdover proceedings, that plaintiffs were not entitled to further lease offerings, that the stipulation discontinuing the first action was valid and enforceable, and that plaintiffs were not entitled to injunctive relief.

The Appellate Division, Second Department, affirmed the order dismissing the complaint by order dated December 13, 2011.Drasser v. STP Associates, LLC,90 AD3d 701.Plaintiffs sought unsuccessfully to stay Justice Phelan's order during the pendency of that appeal.

As a result, STP commenced summary holdover proceedings to evict the plaintiffs in the District Court of Nassau County.Plaintiffs engaged in motion practice in that court challenging the Change of Use Notices.By order dated December 15, 2011, the District Court(Fairgrieve, J.) rejected plaintiff's challenges and held the Notices to be proper.STP Associates, LLC v. Drasser, et. al.,2011 N.Y. Slip Op 52243(U).

Current Litigation

Plaintiffs, at least twenty (20) of whom were also plaintiffs in the Drasser action, subsequently commenced this action seeking declaratory judgment and other relief.The first claim is that the Change of Use Notices are invalid due to STP's filing of Tax Reduction Applications.The second claim is that STP is seeking to evade or circumvent state and local environmental laws and regulations.The final claim is that the Change of Use Notices are invalid under RPL § 233(b)(6)(ii).

Defendant moves to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), for sanctions and for other relief.Defendants allege that each of these claims is barred as a matter of law by res judicata and collateral estoppel.

Plaintiffs contend that dismissal is inappropriate as a motion to reargue the Drasser dismissal is pending before the Second Department.Counsel for plaintiffs also argues that the causes of action are unrelated to the theory of the Drasser...