Small v. Fang

• Citation: 28 N.Y.S.3d 650 (Table)
• Decision Date: 30 November 2015
• Docket Number: No. 73087/2015.,73087/2015.
• Parties: Larry M. SMALL, as Trustee for the Arie Genger 1995 Life Insurance Trust, Petitioner/Landlord, v. Seymour H. FANG, Respondents/Tenants.
• Court: New York Civil Court

28 N.Y.S.3d 650 (Table)

Larry M. SMALL, as Trustee for the Arie Genger 1995 Life Insurance Trust, Petitioner/Landlord,

v.Seymour H. FANG, Respondents/Tenants.

No. 73087/2015.

Civil Court, City of New York.

Nov. 30, 2015.

JACK STOLLER

, J.

Recitation, as required by CPLR § 2219(a)

, of the papers considered in the review of these motions.

Papers	Numbered
Notice of Motion and Supplemental Affidavits and Affirmation Annexed	1, 2, 3, 4
Notice of Cross–Motion and Supplemental Affidavit and Affirmation Annexed	5, 6, 7
Affirmation and Affidavits In Opposition to the Cross–Motion and in Reply	8, 9, 10
Reply Affirmation and Affidavit In Support of Motion	11

Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:

Larry M. Small, as Trustee for the Arie Genger 1995 Life Insurance Trust, the petitioner in this proceeding ("Petitioner"),¹ commenced this holdover proceeding against Seymour H. Fang, the respondent in this proceeding ("Respondent"), seeking possession of 225 West 83rd Street, Apt. 15Z, New York, New York ("the subject premises") on the grounds of termination of Respondent's tenancy therein by thirty days' notice pursuant to RPL § 232–a

and that the subject premises is not subject to any rent regulation by virtue of it being a condominium unit. Respondent interposed an answer ("the Answer") asserting various defenses. Respondent now moves to dismiss on various grounds. Petitioner cross-moves for summary judgment in its favor. The Court consolidates both motions for resolution herein.

There is no dispute of material fact that Petitioner is a trust established for the benefit of, inter alia, Sagi Genger, who also happens to be Respondent's son-in-law ("Respondent's son-in-law"); that the subject premises is a condominium unit;² that Respondent's son-in-law purchased the subject premises on or about the end of 2003; and that Respondent took possession of the subject premises at around that time or in early 2004. There is no dispute of material fact that a Court found, in litigation between Petitioner and Respondent's son-in-law ("the Supreme Court litigation")³ that Respondent's son-in-law defaulted on a loan secured by the subject premises; that Petitioner loaned Respondent's son-in-law money to assist with the default; that, as a part of this arrangement, Petitioner obtained title to the subject premises;⁴ that Petitioner caused a notice of termination ("the Notice") to be served upon Respondent advising Respondent that Petitioner elected to terminate Respondent's tenancy on thirty days' notice more than thirty days prior to February 28, 2015, the date the Notice purported to terminate Respondent's tenancy; and that Petitioner commenced this proceeding afterward. The record on this motion practice therefore demonstrates that Petitioner has proven its entitlement to summary judgment on its prima facie case. The Court thus considers Respondent's defenses and causes to dismiss, both raised in his motion to dismiss and in the Answer.

Respondent argues that he was not served with a true copy of the notice of petition and petition because the copy Petitioner caused to be served upon him did not have a stamp of the clerk of the Court, citing 225 5th LLC v. Fiori Fiori Inc., N.Y.L.J. Feb. 16, 2005 at 22:3 (Civ.Ct. N.Y. Co.) in support of his position. Other authority stands for the opposite proposition, that the absence of a stamp of the clerk on the Court on the service copy does not amount to a defect requiring dismissal. Strong L.P. v. Dakar Rest., Inc., 28 Misc.3d 1213(A) (Civ.Ct. Kings Co.2010)

, Kismet Mgt. Corp. v. Great Neck Retail Supply Corp., 27 Misc.3d 1203(A) (Dist. Ct. Nassau Co.2010), 239 S. 1st St. LLC v. Ribot, 16 Misc.3d 1101(A) (Civ.Ct. Kings Co.2007), First Ave. Owners Corp. v. Riverwalk Garage Corp., 6 Misc.3d 439, 444, 784 N.Y.S.2d 844 (Civ.Ct. N.Y. Co.2004), Doughty Assocs. v. Urban, 2003 N.Y. Misc. LEXIS 1251 (Dist. Ct. Nassau Co.2003). Reconciling this conflicting authority requires an examination into the particular facts herein.

The Court in 225 5th LLC, supra, N.Y.L.J. Feb. 16, 2005 at 22:3, found that the service of a copy of the pleading without the stamp of the clerk and with the handwritten index number to be defective because it did not provide notice to the recipient that the pleading was properly issued. There is no dispute on the record in this motion that the instant proceeding is the fourth holdover proceeding commenced against Respondent seeking possession of the subject premises, nor that Respondent has been an attorney for more than fifty years. Respondent avers in support of his motion that the notice of petition he was served with "bears no actual indication that the notice of petition was issued by the Clerk of the Court or any confirmation that the proceeding was in fact commenced." Parsing this language reveals that Respondent does not allege that he did not recognize what the notice of petition and petition was, nor that he did not know how to respond appropriately to the notice of petition and petition, which is consistent with Respondent's professional experience and with Petitioner's commencement of three prior holdover proceedings against Respondent. Accordingly, the Court does not reach the question of which strand of authority on this point is more persuasive. Rather, the Court finds that the facts herein render this proceeding to be more similar to the authority that finds that such defects do not warrant dismissal. See 239 S. 1st St. LLC, supra, 16 Misc.3d at 1101, 840 N.Y.S.2d 721

(A)(finding that the service copy of the notice of petition with a handwritten index number and no clerk's stamp was not defective, in part because the respondent therein did "not claim that the [n]otice of [p]etition ... was illegible or unintelligible so that he could not ascertain the nature of this proceeding or what was required of him in order to appear and/or answer"). Accordingly, the Court denies Respondent's motion to dismiss this proceeding on this ground and grants Petitioner's motion to dismiss the First Jurisdictional Defense asserted in the Answer.

The Notice informed Respondent that Petitioner purported to terminate his tenancy as of February 28, 2015. The Notice also informed Respondent that the Notice was without prejudice to Petitioner's position in a then-extant holdover proceeding Petitioner had commenced against Respondent ("the prior proceeding").⁵ Respondent argues that this reservation of Petitioner's rights fatally rendered the notice ambiguous.

The standard upon which the Court evaluates a predicate notice in a holdover proceeding is whether the notice is reasonable under the circumstances. Hughes v. Lenox Hill Hospital, 226 A.D.2d 4, 17, 651 N.Y.S.2d 418 (1st Dept.1996)

, appeal dismissed, 90 N.Y.2d 829, 660 N.Y.S.2d 552, 683 N.E.2d 17 (1997). A plain reading of the Notice as such reveals no ambiguity. Petitioner wanted Respondent out of the subject premises and has been intending to evict Respondent if Respondent did not voluntarily move, whether in the prior proceeding or in the instant matter. The function of a predicate notice is twofold: to end a tenant's estate and inform him or her of the consequence associated with not vacating. Raffone v. Schreiber, 18 Misc.3d 925, 927, 850 N.Y.S.2d 851 (Civ.Ct. N.Y. Co.2008). SeePark Summit Realty Corp. v. Frank, 107 Misc.2d 318, 321, 434 N.Y.S.2d 73 (App. Term 1st Dept.1980), aff'd, 84 A.D.2d 700, 448 N.Y.S.2d 414 (1st Dept.1981), aff'd, 56 N.Y.2d 1025, 453 N.Y.S.2d 643, 439 N.E.2d 358 (1982) (a termination notice pursuant to RPL § 232–a must only inform a tenant that a landlord elects to terminate the tenancy and that refusal to vacate will lead to summary proceedings). Nothing in the Notice detracts from this limited purpose of a termination notice pursuant to RPL § 232–a. There is no reading of the Notice that could make a reasonable reader believe that circumstances exist according to which Petitioner would countenance Respondent's continued tenancy, and thus no ambiguity. Accordingly, the Court denies Respondent's motion to dismiss on this ground and grants Petitioner's motion to dismiss the Third Affirmative Defense of the Answer.

Such reasoning informs the Court regarding Respondent's motion to dismiss on the ground that the Notice was stale by the time Petitioner commenced this proceeding. Petitioner commenced this proceeding on August 7, 2015, five months and ten days after February 28, 2015, the termination date set forth in the Notice, a lapse of time that Respondent argues renders the Notice as stale. While Respondent cites authority in support of a proposition that a predicate notice to a summary proceeding can go stale at some point, Respondent never cites to any authority that stands for the proposition that five months is a long enough time to render a predicate notice stale.

Furthermore, there is no dispute in the record that the Court did not dispose of the prior proceeding until an order dated June 11, 2015 that dismissed the proceeding without prejudice on the basis of lack of personal jurisdiction. Petitioner commenced this proceeding less than two months after that dismissal. As the purpose of the Notice is to inform Respondent that Petitioner intends to seek his eviction through Court process if Respondent does not voluntarily vacate, Park Summit Realty Corp., supra, 107 Misc.2d at 321, 434 N.Y.S.2d 73

; Raffone, supra, 18 Misc.3d at 927, 850 N.Y.S.2d 851, Petitioner's continued prosecution of the prior proceeding after the termination date on the Notice and the commencement of this proceeding also gives Respondent notice that Petitioner seeks his eviction. Petitioner's course of action has not conferred any actionable repose upon Respondent. Compare 14 Morningside Ave HDFC v. Murray, N.Y.L.J. April 23, 2002 at 18:1 (App. Term 1st Dept.), R.M.H. Estates v. Hampshire, 13 Misc.3d 1222(A) (Civ.Ct. N.Y. Co.) (a cause of action sounding in nonpayment of rent is not barred as stale when...