Samayoa LLC v. Nelson, LT–901837/16.

• Decision Date: 24 May 2017
• Docket Number: No. LT–901837/16.,LT–901837/16.
• Citation: 61 N.Y.S.3d 193 (Table)
• Parties: SAMAYOA LLC, Petitioner–Landlord, v. Lancelot NELSON d/b/a Classique Jewelry and Accessories, Respondent–Tenant, "John Doe", "jane Doe" and/or "ABC Corp.", Respondents–Undertenants.
• Court: New York Civil Court

61 N.Y.S.3d 193 (Table)

SAMAYOA LLC, Petitioner–Landlord,
v.
Lancelot NELSON d/b/a Classique Jewelry and Accessories, Respondent–Tenant,

"John Doe", "jane Doe" and/or "ABC Corp.", Respondents–Undertenants.

No. LT–901837/16.

Civil Court, City of New York.

May 24, 2017.

DAKOTA D. RAMSEUR, J.

Petitioner–Landlord Samayoa LLC ("Landlord") commenced this summary proceeding pursuant to RPAPL 711 and RPL 231 for possession of the commercial premises at 4262A White Plains Road a/k/a 4520–4280 White Plains Road (the "Premises"), alleging that Respondent–Tenant Lancelot Nelson ("Tenant") used, or permitted to be used, the Premises for an illegal trade or business. Before the Court is Tenant's motion for summary judgment dismissing the Petition which, for the reasons set forth below, is denied.

BACKGROUND FACTS AND PROCEDURAL HISTORY

The Petition alleges the following: On or about August 17, 2016, the New York City Police Department ("NYPD") executed a search warrant at the Premises (Petition § 10b, Exh A ). Officers recovered: (1) packaged in clear plastic bags, several hundred tablets and pills, later determined to be controlled substances; (2) $1,205.00 in United States currency; (3) a black plastic bag; and (4) documents in Tenant's name issued by New York state agencies (Petition § 10c-d, Exhs B–C ). The NYPD arrested Tenant, who was present at the search, and subsequently charged him with numerous violations of the Penal Law, including multiple charges of possession of a controlled substance and possession with intent to sell (Petition § 10e, Exh D ). On or about October 27, 2016, the Bronx County District Attorney's Office notified Landlord of its belief that the Premises were being used to facilitate the illegal sale of controlled substances and requested that Landlord commence an eviction proceeding (Petition § 10g, Exh E; RPAPL 711, 715 ).

In his Answer, Tenant asserted a general denial and several affirmative defenses, one of which is that this action is defective for seeking to terminate the tenancy without a predicate notice of termination. Tenant now moves for summary judgment relying on that affirmative defense, and because there is no triable issue of fact as to whether Tenant used the Premises, or permitted them to be used, for an illegal purpose.

In opposition, Landlord argues first, that, in an illegal use proceeding, no termination notice or date of termination is required in the pleadings; and second, that for summary judgment purposes, the Petition has sufficiently alleged Tenant's connection to an illegal trade or business.

In reply, Tenant draws a distinction between the requirements for "voiding" a tenancy for illegal use pursuant to RPL 231 and "termination" of the tenancy, and argues that Landlord's use of the latter lacked a Notice of Termination. Tenant also argues that Landlord has not satisfied the requirements of RPL 231 because a single arrest for possession of controlled substances is insufficient to demonstrate illegal use of the Premises, or to create a presumption of illegal use.

DISCUSSION

Addressing the parties' procedural arguments first, Respondent's contention that a Notice of Termination was required in this action is without merit. RPL 231(1) serves as the statutory basis for voiding a tenancy based on illegal activity:

Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same, or any part thereof, for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises, or any part thereof shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied (emphases added).

Absent a rent-stabilized or federally-subsidized tenancy, an illegal use proceeding commenced under RPAPL 711(5) is statutory, not a holdover proceeding based on an existing lease, and therefore does not require a predicate termination notice ( New York County Dist. Attorney's Off. v. Oquendo, 147 Misc.2d 125, 130 [Civ Ct N.Y. County 1990] ; New York City Hous. Auth. v. Harvell, 189 Misc.2d 295, 296 [App Term 1st Dept 2001] [notice required pursuant to federal regulatory scheme]; see also Hudsonview Co. v. Jenkins, 169 Misc.2d 389, 394 [Civ Ct N.Y. County 1996] [finding that service of notice of termination, despite lack of requirement to do so, is "surplusage" which, through incorporation into the petition, provides "great notice in fact to the respondent"] ).

RPAPL 715(1) and (4) reinforce the expedient nature of such proceedings, providing that a law enforcement agency may compel an owner to commence such a proceeding on similar grounds or, if an owner does not diligently prosecute the proceeding, permitting that agency to commence its own action and imposing penalties on the owner for non-compliance:

An owner or tenant of any premises within two hundred feet from other demised real property used or occupied in whole or in part for purposes of prostitution, or for any illegal trade, business or manufacture, [or] any duly...