Royal Assocs. v. Gomez
| Docket Number | Index No. L&T 302054/22 |
| Decision Date | 30 May 2023 |
| Citation | 2023 NY Slip Op 23187 |
| Parties | Royal Associates LLC, Petitioner-Landlord, v. Alicia Gomez & Jose Gomez, Respondents-Tenants, Marcela Henao, Ignacio Henao, John Doe & Jane Doe, Respondents-Undertenants. |
| Court | New York Civil Court |
Attorneys for Petitioner: Jamie Nevins, Esq. Cooper, Paroff & Graham, P.C.
Attorneys for Respondent: Aura Zuniga, Esq. Make the Road New York
Recitation as required by CPLR 2219(a), of the papers considered in the review of Respondent Ignacio Henao's motion for summary judgment pursuant to CPLR 3212.
Papers NYSCEF Doc.
Notice of Motion & Affirmation/Affidavits/Exhibits 18-21
Affirmation in Opposition & Exhibits 22-40
Upon the foregoing cited papers, the decision and order on Respondent's motion is as follows:
Relevant Background and Procedural History
The subject holdover was commenced by Petitioner Royal Associates LLC ("Petitioner") upon filing a Notice of Petition and attorney-verified Petition on February 23, 2022. The proceeding is premised on a 10-day termination notice following a 10-day notice to cure, purporting to terminate the rent-stabilized tenancy of Respondents Alicia Gomez and Jose Gomez ("Respondents-Tenants") pursuant to 9 NYCRR (Rent Stabilization Code) § 2524.3(a) on the basis on an "illegal[] sublet and/or assign[ment] of the premises without the prior written consent of the landlord" in violation of Real Property Law § 226(b) and the Rent Stabilization Code ("RSC") § 2525.6. The termination notice states that
Respondent-Undertenant Ignacio Henao ("Respondent") interposed an answer through counsel on January 30, 2023, and now moves for summary judgment. Respondent argues that he and his spouse Flor Henao a/k/a Jane Doe ("Co-Respondent"), along with their adult children (including Respondent Marcela Henao), are not unlawful sublessees but rather close family members of the tenants of record with extensive historical ties to the apartment, a defense which if established is fatal to an illegal sublet holdover. Respondent further argues that Petitioner's termination notice is impermissibly vague, as it fails to address the familial nature of his relationship with the tenants of record.
In support of his motion Respondent attaches an affidavit in which he states that his spouse Flor Henao is the daughter of the tenant of record Jose Gomez a/k/a Hugo Henao and stepdaughter of Hugo Henao's wife and co-tenant Alicia Gomez. Respondent alleges that he and Flor, along with their then-4-year-old son, moved into 37-19 83rd Street. Apt. 42 Jackson Heights, NY 11372 (the "subject premises") in 1983, where Flor's father Hugo Henao a/k/a Jose Gomez and his wife Alicia Gomez were already living, that Hugo Henao used the pseudonym Jose Gomez when signing leases (which Respondent's attorney surmises was a result of his immigration status upon emigrating from Columbia), that at some point before 2003 Alicia and Hugo moved out of the premises and gave Respondent Ignacio Henao and Co-Respondent Flor Henao the apartment, that Alicia and Hugo lived elsewhere and remained married until Hugo's death in 2003, and that Alicia continued to sign leases long after vacating. Respondent further avers the landlord has been aware of his and Flor's occupancy of the apartment for many years as "the building's superintendent came to the apartment countless times to do repairs" and that Respondent has paid rent directly to the landlord. Respondent attaches substantial documentary evidence in support of his motion, albeit all lacking in certification markings pursuant to CPLR 4518(c) or CPLR 2105.
In opposing the motion Petitioner relies entirely on an attorney affirmation. Without challenging the authenticity or admissibility of Respondent's evidentiary submissions, Petitioner's counsel argues that Respondent has failed to prove that Jose Gomez and Hugo Henao are one and the same person and therefore have failed to establish an immediate family relationship. The remainder of Petitioner's opposition addresses Respondent's failure to show co-occupancy for the requisite two-year period prior to vacatur of the tenants of record as required under the Rent Stabilization Code in order to establish succession rights.
A rent-stabilized tenant who sublets their apartment without the consent of the landlord risks early termination of the lease pursuant to RSC §§ 2524.3(a) and 2525.6(f) upon service of a termination notice (see RSC § 2524.2(c)(2)). While typically a landlord must serve a 10-day notice to cure prior to termination (see RSC § 2524.3(a)), a cure period is not required where a tenant "sublets her apartment at market rates to realize substantial profits not lawfully available to the landlord and does so systematically, for a substantial length of time," particularly through unlawful short-term rentals. (Goldstein v Lipetz, 150 A.D.3d 562, 563 [2d Dept 2017]; see also Gruber v Anastas, 100 A.D.3d 829, 829 [2d Dept 2012]; 335-7 LLC v Steele, 52 N.Y.S.3d 248 [App Term, 1st Dept 2016]).
Perhaps because an illegal sublet holdover redresses behavior that undermines the integrity of the Rent Stabilization Law's statutory scheme, a respondent-occupant cannot assert succession rights as a defense (see 901 Bklyn Realty, LLC v Woods-Najac, 119 N.Y.S.3d 811 [App Term, 2d, 11th & 13th Jud Dists, 2d Dept 2019]). Conversely, a rent-stabilized tenant who merely allows a close family member to reside in her apartment for an extended period without engaging in profiteering, has not engaged in an unauthorized sublet, even where the tenant of record resides elsewhere (see id.; 235 W. 71 St. v Chechak, 782 N.Y.S.2d 498, 498-99 [App Term, 1st Dept 2004], affd 16 A.D.3d 242 [1st Dept 2005]; Hudson St. Equities v Escoffier, 2003 NY Misc. LEXIS 1073 at *2 [App Term, 1st Dept 2003]). Such conduct may justify the commencement of a holdover based on the tenant's failure to maintain the premises as their primary residence upon service of a termination notice 90-150 days before expiration of the lease (see RSC § 2524.2(c)(2); 888 E. 96th St., LLC v Hargrove, 111 N.Y.S.3d 494 [App Term, 2d, 11th & 13th Jud Dists, 2d Dept 2018]; PLWJ Realty, Inc. v Gonzalez, 285 A.D.2d 370, 370-71 [1st Dept 2001]), however, in these cases a remaining family member may interpose a defense of succession rights (see 72A Realty Assocs. v. Kutno, 838 N.Y.S.2d 334 [App Term 1st Dept 2007]; Wittenberg v. Ortega, Hernandez-Feneque, N.Y.L.J., June 9, 1998, 25:1 [App Term 1st Dept 1998]).
Turning to the particular facts of this case, the court will address first the sufficiency of Petitioner's termination notice, which Respondent's counsel claims is impermissibly vague in that it fails to account for Respondent's familial relationship with the tenants of record . Respondent's Notice of Motion does not request dismissal on this basis, normally a bar to seeking relief (see Carter v Johnson, 110 A.D.3d 656, 658 [2d Dept 2013]). Nonetheless, as summary eviction proceedings are special proceedings governed by Article 4 of the CPLR, it is this court's obligation to survey the sufficiency of all pleadings, papers, and admissions before trial and to render, sua sponte if necessary, any relief permitted on a motion for summary judgment (see CPLR 409(b); Bahar v Schwartzreich, 204 A.D.2d 441, 443 [2d Dept 1994]), including as to the sufficiency of any statutory predicate notice .
A landlord seeking to terminate a rent-stabilized tenancy is required to serve a predicate notice enumerating the ground for eviction under the Rent Stabilization Code prior to commencement (see RSC § 2524.2(b)). The termination notice must be supported by specific factual statements, not mere conclusions, to enable the tenant to adequately defend herself (see Domen Holding Co. v Aranovich, 1 N.Y.3d 117, 125 [2003]; 888 E. 96th St., LLC v Hargrove, 111 N.Y.S.3d 494 [App Term, 2d, 11th & 13th Jud Dists, 2d Dept 2018] 69 E.M. LLC v Mejia, 29 N.Y.S.3d 849 [App Term, 1st Dept 2015]).
In the context of illegal sublet holdovers, the First and Second Departments require different levels of specificity in the predicate notices. In the First Department, it has long been the case that a landlord need only need to state in the notice to cure and termination notice that it has observed individuals other than the tenant of record residing at the premises, thereby triggering a presumption of an unlawful sublet or assignment (see, e.g., East Vil. RE Holdings LLC v McGowan, 72 N.Y.S.3d 516 [App Term, 1st Dept 2017]; Amin Mgt LLC v Martinez, 57 N.Y.S.3d 674 [App Term, 1st Dept 2017]).
In contrast, in the Second Department, in which this court sits the Appellate Term has recently established a heightened notice requirement in cases where a landlord knows or has reason to know that the alleged sublessee is a close family member. In 888 E. 96th St., LLC v Hargrove, the Appellate Term granted a pre-answer motion to dismiss where the predicate notice stated that the tenant "had not been observed residing at the premises 'for many months'...
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