Opinion
12-05-2017
Dov FELDHEIM, Petitioner–Landlord, v. Tarife STUCKEY, Miguel Caraballo, Ruth Sharp, Edward Alexander, Angela Toure, James Shepard, Respondents–Tenants.
GREEN & COHEN, P.C., Attorneys for Petitioner, By: Anisha Tanna, Esq., 319 E. 91st Street, Professional Suite, New York NY 10128 (212) 831–4400 BOOM! HEALTH LEGAL SERVICES, Attorneys for Respondents, By: Emilio Paesano, Esq., 540 East Fordham Road, Bronx, NY 10458 (718) 295–5598
GREEN & COHEN, P.C., Attorneys for Petitioner, By: Anisha Tanna, Esq., 319 E. 91st Street, Professional Suite, New York NY 10128 (212) 831–4400
BOOM! HEALTH LEGAL SERVICES, Attorneys for Respondents, By: Emilio Paesano, Esq., 540 East Fordham Road, Bronx, NY 10458 (718) 295–5598
Miriam Breier, J. On October 31, 2016, the five captioned summary holdover proceedings were consolidated under Index No. L & T 33615/16. At that time, the petitioner was Denise Keyes, who later sold the subject building, 1760 Topping Avenue, Bronx, New York to petitioner, Dov Feldheim. Dov Feldheim who bought the building on March 6, 2017, was substituted as petitioner in these consolidated proceedings by stipulation dated June 1, 2017.
The fact that there were five separate proceedings pending to recover possession of five units on the first floor of this three unit multiple dwelling, should have been a red flag that the units and the building could potentially be subject to rent stabilization. Petitioner sought to recover possession of the five rooms in the first floor unit through service of individual thirty day termination notices and petitions alleging that the rooms were not subject to rent stabilization. The defenses of de facto rent stabilization status and failure to serve termination notices under the Rent Stabilization Law were raised by the respondents in their answer dated April 13, 2017 served after the denial of their motion to dismiss the petitions on these grounds. (Spears, JHC, March 27, 2017).
The consolidated holdover proceedings were tried before the court on August 24, 2017. Respondent, Tarife Stuckey, who was incarcerated, appeared by video conference. All other named respondents with the exception of Angela Toure were present for the trial. Petitioner and respondents were represented by counsel. The court reserved decision and requested post-trial memoranda, which were submitted by counsel. TRIAL
Petitioner presented its prima facie case through Dov Feldheim, the owner of the premises. A certified deed dated March 6, 2017 describing the premises as a "three family dwelling" and the multiple dwelling registration for the three story three unit building were entered into evidence.
Petitioner testified that he was informed by the prior owner of the premises, Denise Keyes, of the pendency of the consolidated proceedings. He testified that he had not received any rent/use and occupancy from the named respondents and that they do not have leases. Mr. Feldheim testified that a tenant on the third floor of the building pays him $2,058.00 in rent every month. Petitioner rested.
Respondents' first witness, Adelle Sharp, testified that her mother, Ruth Sharp, has lived in room No.5 in the first floor apartment since February 14, 2014. Adelle Sharp testified that she visits her mother "all the time" and was there the day before the trial. Ms. Sharp testified that upon entering the apartment there are three bedrooms and a bathroom to the right, two closets, and two additional bedrooms including her mother's # 5 with a communal kitchen in the rear. Her mother has a key to her room and does not have access to any other rooms except the shared bathroom and kitchen.
Respondents' second witness, James Shepard, testified that he moved into room # 1 of the first floor apartment on July 21, 2012 along with his fiancé, Angela Toure, and they still reside there. He responded to an ad for the apartment that was placed in the Amsterdam News, and spoke with Denise Keyes. Mr. Shepard testified that he paid $750.00 cash to Ms. Keyes; $250.00 each for his deposit, security and first week's rent. He was given a key to the apartment and the door of his room, but no receipt was given. The agreement between him and Ms. Keyes was for rent in the amount of $250.00 to be paid in cash weekly on Fridays as Ms. Keyes did not want a paper trail. Utilities were included in the rent. Mr. Shepard lives in the room with Ms. Toure and they share the common kitchen and bathroom.
Respondents' third witness, Tarife Stuckey, testified that he moved into room # 2 in the first floor apartment on March 6, 2014. He had heard about the apartment from Mr. Shepard. Mr. Stuckey paid Ms. Keyes $320.00 by money order to secure the apartment, but subsequent payments were in cash as Ms. Keyes insisted. Initially he had an agreement with Ms. Keyes to pay $320.00 biweekly, but she raised the rent to $340.00 because the included utilities had risen.
Mr. Stuckey testified that he lives in room # 2 by himself. There is a lock on the door to which he has a key. The room was furnished with a bed and dresser. There is no bathroom and kitchen in his room, and he shares the kitchen and bathroom with the five other people with whom he lives in the apartment.
Respondents' fourth witness, Edward Alexander, testified that he lives in room # 3 in the first floor apartment. Prior to moving in March 2013, Mr. Alexander was living in a homeless shelter. A housing agent at the shelter directed him to Ms. Keyes and he was able to secure the room through her.
Mr. Alexander paid $640.00 for two weeks security, a $300.00 finder's fee and one weeks rent in cash, but was not given a receipt. He testified that Ms. Keyes told him, "I don't do receipts or checks" and that she did not want a "paper trail." The room contained a box spring and mirror, but he and Ms. Keyes agreed that she would furnish a bed, dresser and TV for the room.
Mr. Alexander paid $170.00 a week for the first year he lived in the apartment. The rent was increased by $20.00 a week the following year. Mr. Alexander paid his rent weekly in cash to Ms. Keyes. He is the sole occupant of his bedroom and the only one who can access his locked closet. He shares the bathroom and kitchen with the other people who reside in the apartment.
Respondents' fifth witness, Miguel Caraballo, testified that he moved into room # 4 in the first floor apartment in January 2012 from a homeless shelter. Initially he lived in room # 2 with another individual, but now lives alone in room # 4. His case manager at the shelter helped him secure the room with $1,240.00 he paid towards first and last month's rent.
Mr. Caraballo paid $310.00 cash including utilities biweekly to Ms. Keyes. His room is furnished with a bed, dresser and two nightstands. He has a key to the lock on his door, and shares the kitchen and bathroom with the other residents of the apartment.
Respondent Ruth Sharp, whose daughter testified for respondents, testified that she moved into room # 5 in the first floor apartment on February 14, 2014. She and Ms. Keyes were introduced by the Pastor of the church they both attend. Ms. Keyes picked Ms. Sharp up, and they looked at the room together. They agreed on a $180.00 weekly rent, including utilities, which Ms. Sharp paid biweekly. Ms. Sharp paid $760.00 for two weeks rent and security. Ms. Keyes insisted that the rent be paid in cash and refused to give any receipts. Ms. Sharp testified that she kept her own record of payments, but did not produce any at trial.
Ms. Sharp testified that the kitchen and bathroom were shared spaces, but her room had its own lock on the door to which only she had the key. Ms. Keyes gave her three keys; one for the external house door, the second for the first floor apartment and the third for her room. When Ms. Sharp moved in, the room contained a bed, dresser and nightstand to which she added a TV, lamp, fan and clothing.
Ms. Sharp has not lived anywhere else since moving into her room at the apartment. On cross-examination Ms. Sharp testified that there are three mailboxes in the vestibule, one for each floor of the building. As far as she knows, no one has a key to the mailboxes. Rather, Ms. Keyes distributed the mail to everyone when she came by. After Ms. Keyes sold the building, Ms. Sharp has had to meet the mailperson to retrieve her mail.
After hearing the testimony, the Court took judicial notice of a holdover proceeding brought by Ms. Keyes against Vantashia Hough, the tenant of the second floor apartment under Index No. 58780/15. That holdover proceeding was commenced in October 2015 and adjudicated on March 3, 2016. Respondents entered the building's certificate of occupancy dated July 20, 1936 into evidence. The C of O lists the permissible use and occupancy as a ground floor cellar and three floors each containing apartment with six rooms. Respondents rested.
The court reserved decision pending the parties' submission of post-trial memoranda.
DISCUSSION AND FINDINGS
The court credits the testimony of the respondents, all of whom testified credibly and without contradiction. The five respondents have all been living for several years in separate locked rooms in the first floor apartment. They each have a key to the locked room in which they reside and to which they have exclusive access and possession. They share the kitchen and bathroom in the first floor apartment, but nothing else. The respondents paid rent in cash to Denise Keyes for their individual rooms as agreed. The utilities were paid from the rent respondents paid to Ms. Keyes.
Mr. Feldheim, the current owner, stepped into the shoes of the prior owner, Denise Keyes. Mr. Feldheim knew that there were five separate proceedings pending in court to recover rooms in the first floor apartment which were occupied as five separate residential units by five different tenants. In addition, Mr. Feldheim testified about a tenant living in the third floor apartment who was paying rent to him. The total amount of residential tenants of which Mr. Feldheim had knowledge was six individual tenants in two apartments in the building.
The issue in this proceeding is whether the building in which these tenants' apartments are located had at least six residential units on July 1, 1974 or thereafter, and, thus, is subject to rent stabilization. Rent Stabilization Law [Administrative Code of City of NY] § 26–504[a]; Rent Stabilization Code [9 NYCRR] § 2520.11[d] ; Matter of Loventhal Mgt. v. New York State Div. of Hous. & Community Renewal, 183 A.D.2d 415, 583 N.Y.S.2d 270 [1992] ; see generally Sharabi v. Morales, 23 A.D.3d 544, 806 N.Y.S.2d 602 [2005] ). A building constructed prior to January 1, 1974, which contains six or more residential units, is subject to rent stabilization coverage. See Joe Lebnan, LLC v. Oliva, 39 Misc.3d 31, 965 N.Y.S.2d 268 (App. Term 2d 11th and 13th Jud. Dists. 2013) ; Rashid v. Cancel, 9 Misc.3d 130(A), 808 N.Y.S.2d 920 (App. Term 2d and 11th Jud. Dists. 2005) ; Rosenberg v. Gettes, 187 Misc.2d 790, 723 N.Y.S.2d 598 (App. Term 1st Dept. 2000) ; and Matter of Gracecor Realty Co. v. Hargrove, 90 N.Y.2d 350, 355, 660 N.Y.S.2d 704, 683 N.E.2d 326 (1997).
Because the subject building was constructed in 1936 which is prior to January 1, 1974, if the court finds that it contains more than six residential units, each unit is subject to rent stabilization. In Gracecor Realty Co. v. Hargrove, 221 A.D.2d 237, 634 N.Y.S.2d 1 (1995), the Appellate Division affirmed the lower court's determination that a cubicle unit in a lodging house was subject to rent stabilization, as it was a "housing accommodation" for rent stabilization purposes. If a cubicle unit can be considered a "housing accommodation" for rent stabilization purposes, then each room in the first floor apartment in this building must be also considered a separate "housing accommodation" for rent stabilization.
In Rashid v. Cancel, 9 Misc.3d 130(A), 808 N.Y.S.2d 920, the court found that the use of an illegal basement for residential purposes brought an entire building under the rubric of rent stabilization because the basement's residential use constituted the sixth residential unit in the building. Here there are five individual housing accommodations in the first floor apartment, one housing accommodation in the second floor apartment that was subject to the 2015 holdover brought by Ms. Keyes, and another housing accommodation on the third floor where Mr. Feldheim's rent paying tenant lives. That totals seven residential units, bringing the five housing accommodations in the first floor apartment and the building under the Rent Stabilization Law.
In Joe Lebnan, LLC v. Oliva, 39 Misc.3d 31, 965 N.Y.S.2d 268, the Appellate Term did not examine the legality of the apartments at issue, but rather they considered simply whether six or more units in the building were utilized as residential at one time. See also Matter of Gracecor Realty Co. v. Hargrove, 90 N.Y.2d 350, 355, 660 N.Y.S.2d 704, 683 N.E.2d 326 (1997) (primary issue in the determination of whether a building is considered rent stabilized is the function of the units in the building, which "is not limited by any physical or structural requirements.") 90 N.Y.2d at 355, 660 N.Y.S.2d 704, 683 N.E.2d 326.
Based upon the foregoing conclusions of fact and law, the predicate notices served in the consolidated proceedings are defective and the petition is dismissed for failure to plead the proper regulatory status of the housing accommodations contained in the first floor apartment. These housing accommodations are subject to rent stabilization since they are contained in a building that was constructed prior to January 1, 1974 which contains six or more residential units.
The Clerk of the Court shall enter judgment dismissing the petitions in the five consolidated cases with prejudice. Respondents' counterclaim for legal fees under RPL § 234 is dismissed with prejudice as no leases exist between the parties. The counterclaim for rent overcharge is dismissed for failure of proof.
This constitutes the Decision and Order of the Court after trial. A copy of this decision/order is being mailed to the parties along with their respective trial exhibits.