Philip v. STP Associates, LLC, 2008 NY Slip Op 30867(U) (N.Y. Sup. Ct. 3/20/2008)

• Decision Date: 20 March 2008
• Docket Number: 021154/07.,Motion Sequence #1.
• Citation: 2008 NY Slip Op 30867
• Parties: AMATUZIO PHILIP, ANDERSON HELEN, BAUMAN MICHEL, BOCCA ANDREW, BOCCA LAURIE, BONNER GINGER, BOWE MARTIN, CARAMICO JOSEPH, CARAMICO LISA, CARMAN MARGARET, CARPENTER CAROLYN, COZZA KENNETH, DIETRICH SHIRLEY, DOLA CHARLIE, DRASSER NANCY, DUPRE ROGER, DYCKMAN BOB, EBERSBURGER DALE, FUNK DARLENE, GAFFNEY PATRICIA, HESS NELSON, JAROSLOWSKI JEANETTE, JOHNSON DIANE, KARSCH ROSE RENATE, KESSLER EDWARD, KIM KUMLAN, KOSTRO ALEXANDRIA, LAKE CATHERINE, LAKE JACOB, LANGE FRED, LEWANDOWSKI DIANE, MARTIN LESLIE, MCCANN ROSE ANN, MCCAULEY ELIZABETH, MITCHELL JOSEPHINE, NARGI JACQUELINE, NIKITINA TAMARA, PEDOTE BARBARA, PORTNOY RANDI, RAPPAPORT MARCY, SCHAUER GREGG, SCHMIDT PHILIP, SESSA CONNIE, SNYDER CATHERINE, ST. CLAIR DEBBIE, STONESTREET SUSAN, STONESTREET WILLIAM, SZABLINSKI KENNETH, WALCH THERESA, WESTERVELT MAUREEN, HOME OWNERS PROPERTY AND EQUITY ASSOCIATION, OR HOPE ASSOCIATION OF SYOSSET, Plaintiffs, v. STP ASSOCIATES, LLC, and HORMI HOLDING CO. INC., Defendants.
• Court: New York Supreme Court

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2008 NY Slip Op 30867(U)

AMATUZIO PHILIP, ANDERSON HELEN, BAUMAN MICHEL, BOCCA ANDREW, BOCCA LAURIE, BONNER GINGER, BOWE MARTIN, CARAMICO JOSEPH, CARAMICO LISA, CARMAN MARGARET, CARPENTER CAROLYN, COZZA KENNETH, DIETRICH SHIRLEY, DOLA CHARLIE, DRASSER NANCY, DUPRE ROGER, DYCKMAN BOB, EBERSBURGER DALE, FUNK DARLENE, GAFFNEY PATRICIA, HESS NELSON, JAROSLOWSKI JEANETTE, JOHNSON DIANE, KARSCH ROSE RENATE, KESSLER EDWARD, KIM KUMLAN, KOSTRO ALEXANDRIA, LAKE CATHERINE, LAKE JACOB, LANGE FRED, LEWANDOWSKI DIANE, MARTIN LESLIE, MCCANN ROSE ANN, MCCAULEY ELIZABETH, MITCHELL JOSEPHINE, NARGI JACQUELINE, NIKITINA TAMARA, PEDOTE BARBARA, PORTNOY RANDI, RAPPAPORT MARCY, SCHAUER GREGG, SCHMIDT PHILIP, SESSA CONNIE, SNYDER CATHERINE, ST. CLAIR DEBBIE, STONESTREET SUSAN, STONESTREET WILLIAM, SZABLINSKI KENNETH, WALCH THERESA, WESTERVELT MAUREEN, HOME OWNERS PROPERTY AND EQUITY ASSOCIATION, OR HOPE ASSOCIATION OF SYOSSET, Plaintiffs, v.STP ASSOCIATES, LLC, and HORMI HOLDING CO. INC., Defendants.

021154/07.

Motion Sequence #1.

Supreme Court of the State of New York, Nassau County.

March 20, 2008.

Original Return Date: January 3, 2008

Submission Date: January 31, 2008.

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Elliot S. Schlissel, Esq., Lynbrook, NY, Attorney for Plaintiffs.

Mason & Mason, P.C., Attn: Michael V. Mason, Esq., Garden City, NY, Attorneys for DefendantSTP Associates, LLC.

THOMAS P. PHELAN, Judge.

This application by plaintiffs for an order staying the eviction proceedings pending in the District Court of Nassau County or transferring same to the Supreme Court, Nassau County, and restraining defendants from commencing any further proceedings for the eviction of plaintiffs pending a hearing regarding defendant's, STP Associations, LLC, compliance with Real Property Law § 233("RPL § 233) is denied.

In support of their application plaintiffs submit the affidavit of Marcy Rappaport, one of the plaintiffs and Vice President of the Hope Association.The subject property is the Syosset Mobile Home Park located at 80-16 West Jericho Turnpike, Syosset, New York, which has existed since 1926 and is currently comprised of 51 families.According to Ms. Rappaport, the mobile-home owners (the "Owners") rent the land from the "park" owners.

Ms. Rappaport alleges that defendant, Hormi Holding Co. Inc.("Hormi"), left a notification in their mailboxes on or about April 9, 2007, informing the Owners that the "park" had been sold to STP Associates, LLC("STP").The Owners continued to pay the same rent to STP.Thereafter, and on or about June 2, 2007, the Owners received a new lease from STP increasing the monthly rental to $750.00 per Owner commencing September 1, 2007, and to $1,000.00 beginning March 1, 2008.It is further alleged by Ms. Rappaport that the Owners received termination notices dated September 21, 2007, notwithstanding the understanding that the status quo was to be maintained pending negotiations between the parties regarding the rent increases.Ms. Rappaport states that STP informed them that the termination notices were sent by mistake and to ignore them, but that on or about November 12, 2007, eviction notices were taped to the Owners' doors, five days after new termination notices were sent, together with the return of the rent checks.

In opposition to plaintiffs' application, defendant, STP, submits the affirmation of its counsel who alleges that the Owners were offered an opportunity to execute a new lease.In the event the lease was rejected a month-to-month tenancy would result.It is further alleged that reminder letters were sent to the Owners on August 9, 2007, informing them that if the lease was not signed by August 31, 2007, the offer would be deemed declined.Counsel submits that none of the leases were executed by the plaintiffs.

Also submitted in opposition is an affidavit of Larry Rush, principal of STP.Mr. Rush submits that on September 11, 2007, a letter was sent to the Owners informing them that their failure to pay the full rent would result in commencement of eviction proceedings.Contrary to the allegations of Ms. Rappaport, Mr. Rush avers that STP never agreed to stay pursuit of its rights nor did STP state that the termination notices were sent by mistake and should be ignored.

STP argues that RPL § 233 is inapplicable inasmuch they are pursuing the eviction based upon a permitted exception, to wit: the holdover status of the Owners and not a change in use.Plaintiffs counter that STP is disingenuous contending that, among other things, its statements made to News 12 on June 14, 2007, clearly show that STP has no intention of maintaining the premises as a mobile-home park and, therefore, should be subject to the provisions of RPL § 233.

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Although the transcript of that meeting does indicate that at some time STP does intend to put the premises to another use, it also indicates that at that time the thrust of the discussion was the increase in the rent in the new leases (Schlissel Reply Ex. C).It was asked what would happen if the leases were not signed, and STP responded that the Owners would be on a month-to-month tenancy.At that time STP acknowledged that they would have to give six-months' notice to the Owners when the time came for it to file an application but also indicated that they did know at that time what it would be making an application for.It was anticipated that approvals would not be received until 2009.

The court recognizes the hardship on plaintiffs, but the reality of the situation is that the mobilehome park has been purchased by a developer, the defendant, STP.It is inevitable that the Owners will have to move at some point in time.The issue before the court is whether plaintiffs have met their burden of proof for a preliminary injunction."To obtain a preliminary injunction, a movant must demonstrate a likelihood of success on the merits, danger of irreparable harm unless the injunction is granted, and a balance of the equities in its favor [citations omitted]"Dana Distributors, Inc. v. Crown Imports, Inc.,___ NYS2d ___, 2008 WL 458577(2d Dept.).

Likelihood of Success on the Merits

Plaintiffs' first cause of action seeks to declare the transfer from Hormi to STG void because of STP's failure to comply with the requirements of RPL § 233(b)(6).Assumingarguendo that STP did fail to comply with the requirements of RPL § 233(b)(6), such failure would have occurred after the transfer of the property to STG.Plaintiffs provide no basis in law for the relief sought.Moreover, the court notes that " [t]here is no question that restraint of alienation on a fee simple absolute is as void [sic] against public policy (Hacker v. Hacker,153 App.Div. 270, 138 N.Y.S. 194)"(Application of Nelson,134 Misc.2d 936[N.Y. Sur.1987]).

The second cause of action prays that STP be ordered to provide the requisite notice.Even though it is clear that STP ultimately intends to develop the property for a use other than a mobilehome park, plaintiffs have failed to show that the eviction proceedings commenced in the District Court were not truly based upon a holdover.STP offered leases to plaintiffs in accordance with the statute.None were executed, thereby creating a month-to-month tenancy.The Owners received notices terminating the month-to-month tenancy prior to the commencement of the holdover proceedings.

The relief sought in the third cause of action is for STP to offer the Owners a new lease "with reasonable and realistic terms based on the 31-year average of the `park' existence.This is not required by the statute."Real Property Law 233 is a detailed and comprehensive provision regulating the relationship between the owners and operators of `manufactured' or mobile home parks and the owners of mobile homes located in those communities."(MHC Greenwood Village NY, L.L.C. v. County of Suffolk,18 Misc.3d 312[Sup. Ct. Nassau Co. 2007]).In the absence of any statutory requirement for renewal leases, the court should not impinge further on STG's freedom to contract.(Lanz v. Lifrieri,104 AD2d 400[2d Dept.1984]).

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