Opinion
570097/20
01-21-2022
Great Jones St. Realty Corp., Petitioner-Appellant, v. Nittaya Chimsanthia, Respondent-Respondent, and "John Doe", "Jane Doe," Respondents-Undertenants.
Unpublished Opinion
PRESENT: EDMEAD, P.J., MCSHAN, SILVERA, JJ.
PER CURIAM
Petitioner, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Eleanora Ofshtein, J.), dated August 27, 2021, which denied its cross motion for summary judgment of possession and to dismiss respondent Chimsanthia's second, fourth, seventh, eighth, eleventh, twelfth, fourteenth, fifteenth and sixteenth affirmative defenses in a holdover summary proceeding.
Order (Eleanora Ofshtein, J.), dated August 27, 2021, modified to grant petitioner's motion to dismiss the second, eighth and sixteenth affirmative defenses; as modified, order affirmed, with $10 costs.
Petitioner commenced this holdover proceeding alleging that respondent's license to occupy the subject Great Jones Street (unregulated) apartment expired upon the death of her husband Joseph Scott, who, it is alleged, occupied the premises solely as an incident to his employment as building manager or superintendent. Respondent interposed an answer containing some 18 affirmative defenses, alleging, inter alia, that petitioner's principals are her in-laws, that her late husband had an ownership interest in the building and occupied the apartment, not as the result of his employment, but in his position as owner, and that she inherited her husband's interest.
Civil Court correctly denied petitioner's motion for summary judgment of possession. Petitioner failed in its burden to demonstrate that respondent's now-deceased husband occupied the apartment solely as an incident to his employment as building manager or superintendent (see Mohr v Gomez, 173 Misc.3d 553 [App Term, 1st Dept 1997]). Moreover, triable issues were raised with respect to respondent's defense that her late husband, the president and shareholder of petitioner, converted the subject commercial loft space to residential use at his own expense in consideration of a life estate for the benefit of his spouse (see Paladino v Sotille, 15 Misc.3d 60 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). With respect to petitioner's contention that any purported oral agreement giving a life estate was barred by the statute of frauds (see General Obligations Law § 5-703), respondent has sufficiently alleged part performance, i.e. taking possession for several years and converting said unit from commercial to residential use, that is unequivocally referable to the oral agreement (see Tuttle, Pendelton & Gelston v Dronart Realty Corp., 90 A.D.2d 830 [1982]), so as to remove the agreement from the statute of frauds.
Contrary to petitioner's primary contention with respect to the affirmative defenses, we find that such defenses are adequately pleaded. Nor are we bound by law of the case in considering the merits of such defenses (see Hutchings v Yuter, 108 A.D.3d 416, 417 [2013]).
However, respondent's second and eighth affirmative defenses (inaccurate description of the subject premises in the predicate notice and petition) should have been dismissed, based upon this Court's prior determination (see Great Jones St. Realty Corp. v Chimsanthia, 67 Misc.3d 136 [A], 2020 NY Slip Op 50547[U] [App Term, 1st Dept, 2020]). Respondent's sixteenth affirmative defense, alleging that she cannot be evicted because of her familial relationship to petitioner's principals, should have also been dismissed. The RPAPL contains no language exempting individuals with some familial relationship to a petitioner from eviction as licensees (see Aloni v Oliver, 70 Misc.3d 137 [A], 2021 NY Slip Op 50069[U][App Term, 1st Dept 2021]; Heckman v Heckman, 55 Misc.3d 86 [App Term, 2nd Dept, 9th & 10th Jud Dists 2017]).
Petitioner has not established any legal basis to dismiss the other affirmative defenses. We have examined petitioner's remaining contentions and find them to be without merit.
All concur