Zunce v. Rodriguez

• Decision Date: 22 October 2008
• Docket Number: No. 66436/08,66436/08
• Citation: 2008 NY Slip Op 28416,871 N.Y.S.2d 828,22 Misc.3d 265
• Parties: SHEPTIM ZUNCE et al., Petitioners, v. CARMEN RODRIGUEZ et al., Respondents.
• Court: New York Civil Court

22 Misc.3d 265

871 N.Y.S.2d 828

2008 NY Slip Op 28416

SHEPTIM ZUNCE et al., Petitioners, v. CARMEN RODRIGUEZ et al., Respondents.

No. 66436/08

Civil Court, Kings County.

October 22, 2008.

Brooklyn Legal Services Corp.

B, Brooklyn (John C. Gray and Michael Grinthal of counsel), for respondents.

Stern & Stern, Brooklyn (Lawrence M. Stern of counsel), for petitioners.

OPINION OF THE COURT

GEORGE M. HEYMANN, J.

In this personal use holdover proceeding the respondent Carmen Rodriguez¹ has moved this court for an order granting summary judgment pursuant to CPLR 3212 on the following grounds:

(1) that the petition fails to state the facts upon which the proceeding is based;

(2) that the petitioners failed to serve the respondents with the notice of nonrenewal at least 90 days before the expiration of their rent-stabilized lease; and (3) that the respondent Rodriguez and her "husband," Jose Lopez, are both disabled and that he is over 62 years of age and the petitioners have failed to offer "equivalent or superior" housing accommodations.

In the alternative, if summary judgment is denied, the respondent is seeking leave to conduct discovery pursuant to CPLR 408.

The third branch of the motion raises the issue of whether the "common law" marriage of the respondent, tenant of record, affords her the opportunity to claim an exemption from this personal use holdover proceeding on the theory that her elderly, disabled "husband" is a "spouse" entitled to such relief, as provided in the Rent Stabilization Code (RSC).

Factual Background

Respondent Carmen Rodriguez, the tenant of record, and her family have lived in the subject premises located at 446 Bergen Street, second floor, apartment 2R, Brooklyn, New York 11217 since 1978. She and Jose Lopez are not married but have lived together for over 40 years and have two biological children together, Yesina and William Lopez.

On December 28, 2007, the petitioner served a notice of non-renewal (Golub notice)² pursuant to RSC (9 NYCRR) § 2524.4 (a) (1), dated December 26, 2007, upon the respondents by substituted service at the subject premises. Thereafter, on December 31, 2007, two copies were mailed to each named respondent at said premises by both certified and regular first class mail.

The respondents' rent-stabilized lease was to expire on March 31, 2008 and they were informed that they were to "remove from said premises on or before March 31, 2008" as their "apartment is required for the use of [landlord's] daughter Albana Zunce as her primary residence." The notice further stated that

"Mr. Shpetim Zunce[³] and his four children presently reside at 60 Endor Avenue, Staten Island New York 10301. Mr. Zunce has three daughters ages 2, 15, and seventeen years old and a son who is 13 years old. Ms. Albana can no longer comfortably reside at 60 Endor Avenue, Staten Island, New York 10301, and requires her own apartment. Ms. Albana Zunce presently shares a room with her two other sisters."

On January 4, 2008, respondent Rodriguez received the notice by certified mail and in response thereto sent a letter, dated January 8, 2008, by certified mail to the petitioners stating, in part, that

"[a]s for our response to your vengeful decision not to renew our current rent stabilized rental lease we would like to inform you that my husband is over 62 years of age and that my husband and I are both disabled. We are aware that the law states that for these reasons you can not evict us out of our home and you can not evict us with out giving us another equivalent apartment to reside in." (Respondent's exhibit E.)

Thereafter, on April 15, 2008, the petitioners commenced this proceeding by conspicuous service of the petition and notice of petition upon the respondents. To date, the petitioners have not offered to relocate the respondent Rodriguez and her family to another apartment.

Applicable Statutes

"[RSC §] 2524.2 Termination notices

"(a) . . . no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section . . . 2524.4 [Grounds for refusal to renew lease . . .] of [this] Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.

"(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section . . . 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

"(c) Every such notice shall be served upon the tenant:

. . .

"(3) in the case of a notice pursuant to sections 2524.4(a) . . . of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term."

"[RSC §] 2524.4 Grounds for refusal to renew lease . . . without order of the DHCR

"The owner shall not be required to offer a renewal lease to a tenant . . . and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required pursuant to section 2524.2 of this Part [Termination notices] only on one or more of the following grounds:

"(a) Occupancy by owner or member of owner's immediate family.

"(1) An owner who seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence in the City of New York and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York . . .

"(2) The provisions of this subdivision shall not apply where a tenant or the spouse of a tenant lawfully occupying the housing accommodation is a senior citizen or disabled person, as previously defined herein, unless the owner offers to provide and, if requested, provides an equivalent or superior housing accommodation at the same or lower rent in a closely proximate area . . .

"(4) No action or proceeding to recover possession pursuant to this subdivision shall be commenced in a court of competent jurisdiction unless the owner shall have served the tenant with a termination notice in accordance with section 2524.2(a), (b) and (c)(3) of this Part." (Emphasis added.)

Analysis of Statutes and Conclusions of Law

(I) Failure to State the Facts upon Which this Proceeding is Based:

Paragraph 6 of the petition states that the apartment is rent stabilized but then proceeds to state that the "building contains less than six (6) legal residential units." (Emphasis added.) According to the respondent, said building contains eight residential units.

The respondent's argument that the inconsistency in the petition renders it "impossible to know from the petition which of the contradictory statements is the mistaken one and therefore whether the premises are rent stabilized" (respondent's mem of law at 16) is belied by her own statement in her letter to the petitioners, dated January 8, 2008, as set forth above, wherein she refers to her "current rent stabilized rental lease."

Clearly, the word "less" was an unintended error and both parties have acknowledged said premises to be rent stabilized. (See Southcroft Co. v Konopko, 128 Misc 2d 179 [1985] [there was no apparent dispute as to coverage by rent stabilization, thus no prejudice to the tenant]; Paikoff v Harris, 185 Misc 2d 372 [1999] [a misstatement in the petition provides no basis for dismissal].) Therefore, this branch of the motion to dismiss the petition is denied.⁴

(II) Petitioner Failed to Timely Serve the Golub Notice:

The respondents allege that the petitioners did not provide them with adequate notice of their intention not to renew their lease agreement within the 90-to-150-day "window period" as prescribed by RSC § 2524.2 (c) (3),⁵ in that the certified mail was not received until January 4, 2008, 87 days before the lease expired on March 31, 2008.

According to the respondent, "[w]here a predicate notice to a summary eviction proceeding is served by mail, service is considered effectuated five days after the date of mailing," relying on the Court of Appeals holding in Matter of ATM One v Landaverde (2 NY3d 472 [2004]). Landaverde concluded that in order

"to afford tenants a 10-day cure period before they may be subject to lease termination for designated violations . . . owners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period . . . . In this manner, service will be deemed complete upon mailing, and a properly executed affidavit of service will raise a presumption that proper mailing occurred." (Id. at 477-478.)

As this court stated in its decision 135 PPW Owners LLC v Schwartz (7 Misc 3d 1016[A], 2005 NY Slip Op 50629[U], *2 [2005]),

"although the Court [of Appeals] refers to Civil Practice Law and Rules (`CPLR') 2103 [b] [2] which requires the addition of five (5) days to prescribed periods for service by mail, the Court clearly stated that such provision applied only to pending actions and declined to extend its applicability to the commencement of summary proceedings."

This court went on to observe that

"[i]ronically, in its attempt to find a `fair and practical solution to this regulatory ambiguity' ([Landaverde] at 478) the Court of Appeals has actually opened the floodgates to numerous conflicting opinions by judges of the housing court regarding the applicability of Landaverde to various types of notices other than a notice to cure." (Id.)

The following decisions were then cited in favor of, and as opposed to, the applicability of Landaverde to the service of Golub notices: yes: Lynch v Dirks (NYLJ, Jan. 5, 2005, at 19, col 3); Shoshany v Goldstein (NYLJ, Feb. 9, 2005, at 18, col 3); Croman v Thompson (NYLJ, Feb. 23, 2005, at 21, col 3); no...