Opinion
80280/10.
Decided June 13, 2011.
Joseph Burden, Esq., Belkin Burden Wenig Goldman, LLP, New York, New York, Attorney for Petitioner.
Robert Levy, Esq., New York, New York, Attorney for Respondents.
Petitioner commenced this holdover proceeding, after service of a notice of nonrenewal, based on his contention that respondent Joseph Sapinsky (hereinafter "tenant of record") was not using the subject premises as his primary residence. The tenant of record and his daughter, Laura Sapinsky-Blake, (hereinafter collectively referred to as "respondents") answered the petition by raising two affirmative defenses: (1) that by accepting rent "and by other acts" after service of the predicate notice, petitioner waived his right to maintain this proceeding; and (2) the tenant of record's daughter is entitled to tenancy rights if the tenant of record is deemed to no longer primarily reside at the premises.
Respondent-undertenant Danvil Blake answered the petition collectively with the other respondents. As he failed to assert any independent claim to possession, his rights are subsumed by, and addressed in the context of, the other respondents' claims.
After issue was joined, the parties agreed to mark the case off calendar pending discovery. In doing so, the parties stipulated that the tenant of record was now "liv[ing] in upstate NY and because of his age and physical/medical condition he [would] not be produced for an EBT nor be called as a witness at trial (nor submit affidavits on a motion for summary judgment)." Upon completion of discovery, which included an examination before trial of the daughter, petitioner now moves for summary judgment; to strike respondents' affirmative defenses; for fair market use and occupancy and an award of reasonable attorneys fees.
Petitioner raises two arguments in support of his motion for summary judgment. First, petitioner asserts that "there can be no succession claims to a non-primary resident's tenancy" ( see Petitioner's Memorandum of Law at 10). Second, petitioner alternatively argues that even if a succession rights claim could be raised in the context of a nonprimary residence proceeding, that claim would fail as respondents cannot establish that the tenant of record and his daughter each primarily resided at the subject premises two years prior to the tenant of record's permanent vacatur. These arguments are addressed in turn.
Petitioner's first argument is premised on a misguided interpretation of the Rent Stabilization Code ("Code") and runs contrary to existing case law and is thus without merit. Petitioner essentially argues, that since the Code provides that succession rights are to be memorialized at the time of the offering of a renewal lease under RSC § 2523.5(b)(1) and that petitioner need not offer a renewal lease to a tenant not using the premises as his or her primary residence ( see 9 NYCRR § 2524.4[c]; see also Ehrlich v NYC Conciliation and Appeals Bd., 67 NY2d 622), succession can never be asserted in a nonprimary residence proceeding as no lease renewal is offered.
Contrary to petitioner's contention, the plain language of the Code does not foreclose a viable successor tenant from asserting his or her rights in the context of a nonprimary residence proceeding. Rather, the Code specifically provides that a landlord's failure to offer a renewal lease based on a claim of nonprimary residence be ratified by a "court of competent jurisdiction" ( 9 NYCRR § 2524.4[c]). An occupant, with a claim to succession, has an interest in the expiring lease and its renewal ( see 245 Realty Assoc. v Sussis, 243 AD2d 29, 35 [1st Dept 1998]). In this proceeding, the issues of nonprimary residence and succession are ripe for adjudication — precisely in the manner that trial and appellate courts have regularly addressed these claims ( see e.g. 72A Realty Assoc. v Kutno , 15 Misc 3d 100 [App Term, 1st Dept 2007]; University Tower Assoc. v Mintz, 15 Misc 3d 150[A][App Term, 2d Dept 2007]).
Assuming arguendo that the language of the Code could be viewed to support the position advanced by petitioner, the court notes that "[l]iteral interpretation of the words used [in a statute] will not be accorded when to do so will occasion great inconvenience, or produce inequality, injustice or absurdity" ( Zappone v Home Ins. Co., 55 NY2d 131, 137). "It is, moreover, always presumed that no unjust of unreasonable result was intended and the statute must be construed consonant with that presumption" ( Id. [citations omitted]).
Here, petitioner's interpretation of the subject statute would lead to an absurd result as it would largely remove the issue of succession rights, a component of a largely remedial set of statutes, outside the purview of Housing Court. As noted in Hughes v Lenox Hills Hosp. ( 224 AD2d 4, 15 [1st Dept 1996]), RSC § 2523.5(b) contemplates that the issue of succession to a rent stabilized tenancy is to be addressed after the tenant of record has stopped residing at the premises, but not until the lease term expires. Specifically, the court noted that the:
"language [of the Code] suggests that, in the ordinary course of events, a family member, who remains in the apartment following the departure of the named tenant, will receive a renewal notice towards the end of the lease term, directed to the named tenant; the recipient will thereupon inform the landlord of the tenant's departure as well as his status as a family member; and, assuming there is no dispute regarding his status, the surviving family member will receive a renewal lease designating him tenant of record"
( id. at 13-14).
However, under petitioner's interpretation of the statute, a potential successor would largely be precluded from asserting a succession defense in a summary proceeding except for in very limited circumstances. This is because succession only comes into play when the tenant of record stops primarily residing at the premises — a point at which a landlord may be within his or her right to not offer a subsequent renewal lease under RSC § 2524.4(c). In other words, a potential successor generally cannot assert his or her claim to the tenancy until the first renewal lease is offered after the tenant of record no longer primarily resides at the premises. According to petitioner, since no lease must be offered to either the tenant of record or the potential successor tenant, no claim may be asserted in the context of a nonprimary residence proceeding. Following petitioner's argument, the issue of succession typically could not be raised in a summary proceeding thereby forcing successor tenants to have to assert their claims as requests for declaratory relief in Supreme Court — a considerably longer and more expensive process. Turning the assertion of succession issues into a matter of gamesmanship cannot be what the legislature intended in enacting the Code ( see Hughes, 224 AD2d at 15 ["The merit to Rent Stabilization Code (9 NYCRR) § 2523.5 (b) is that it spares family members the disruption of relocation at a time of emotional and possibly financial turmoil. Indeed, the thread that runs through the cases construing the succession provision is the need for continuity in possession or, alternatively stated, the need for a place to call home"][internal quotation marks omitted]).
Such an interpretation of the Code also runs afoul of RPAPL 743 which provides that an answer to a summary proceeding "may contain any legal or equitable defense, or counterclaim" ( cf. NY City Civ Ct Act § 905; Cobert Const. Corp. v Basset, 109 Misc 2d 119, 121 [App Term, 1st Dept 1981]["The issue in any summary proceeding for possession is whether landlord is entitled to such possession, and any equitable defense offered by the tenant to show that landlord is not entitled to possession must be considered"]).
Petitioner's alternative argument for summary judgment is rooted in the undisputed fact that the tenant of record has not primarily resided at the subject premises for several years. However, during this period, the tenant of record, with the assistance of his daughter, distorted that fact by continuing to sign lease renewals and pay the monthly rent in his name. Based on respondents' uncontested actions, petitioner argues that the daughter cannot prevail on her succession claim. This argument, coupled with the undisputed facts in this case, finds support in both the construction of the Code and prevailing caselaw.
Summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]). "The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'"( JMD Holding Corp. v Cong Fin Corp. , 4 NY3d 373 , 384 quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also Zuckerman v City of New York, 49 NY2d 557, 562). In considering such a motion, the court's responsibility is to determine whether a material issue of fact exists, not to determine said issue ( see Esteve v Abad, 271 AD725, 727 [1st Dept 1947] ["the court is not authorized to try the issues but it must determine whether there is an issue to be tried"]). However, where no such material issue of fact remains in dispute, "the Court should not hesitate to give this remedy the full purpose for which it is intended" ( Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965] affd 16 AD2d 729 [3d Dept 1966]).
It is undisputed that the tenant of record has not primarily resided at the premises for several years. Thus, the issue turns to whether his daughter is entitled to succession rights under RSC § 2523.5(b)(1). Notably here, the date a tenant ceases to primarily reside at a premises is not necessarily the same date that he or she is deemed to have permanently vacated the premises as relevant to succession claim analysis ( see Warren LLC v Carbello, NYLJ, May 6, 2009, at 30, col 1 [Civ Ct, Queens County]). In instances where the tenant of record and the potential successor tenant distort the fact that the tenant has vacated the premises by continuing to pay the monthly rent and executing renewal leases in the tenant of record's name, then the permanent vacatur date is generally defined as the date the last renewal lease expired ( see Metropolitan Life Ins. Co. v Butler, 2002 NY Slip Op 50014[U] [App Term, 1st Dept 2002] [noting that the "tenants of record cannot be said to have permanently vacated the apartment premises until the spring of 1999, since they never surrendered possession and continued to execute renewal leases extending through September 1999. During the immediately preceding two year period, there was no showing that respondent lived in the premises with the tenants, since the tenants were concededly not residing there primarily"]; 72A Realty Assoc. v Kutno , 15 Misc 3d 100 , 102 [App Term, 1st Dept 2007]; 72A Realty Assoc. v Healey , 26 Misc 3d 132 [A] [App Term, 1st Dept 2010]; Third Lenox Terrace Assoc. v Edwards, 23 Misc 3d 126[A] [App Term, 1st Dept 2009]; Clinton Realty Assoc. LLC v De Los Angeles, 29 Misc 3d 142[A] [App Term, 1st Dept 2010]; East 96th Street Co., LLC v Santos, 12 Misc 3d 133[A] [App Term, 1st Dept 2006]).
The rationale behind the above line of cases is that "succession rights are not automatically vested in a potential successor upon the [vacatur] of a stabilized tenant, but remain inchoate until the occupant's status as a qualified successor [is] ratified by judicial determination at a time after the [vacatur]'" ( South Pierre Assoc. v Mankowitz , 17 Misc 3d 53 , 54 [App Term, 1st Dept 2007] quoting 245 Realty Assoc., 243 AD2d at 33). While an occupant has an interest in succession in a lease that pre-dates the tenant of record's vacatur ( cf. 245 Realty Assoc., 243 AD2d at 33), the claim must still be timely asserted after the vacatur date in a manner that is consistent with the Code. The reason behind this is twofold. First, under the Code, the burden is on the successor tenant to assert said right ( see 9 NYCRR § 2523.5[e]; South Pierre Assoc., 17 Misc 3d at 54). Second, as discussed above, the Code contemplates that these issues will be addressed when the lease comes up for renewal after the tenant of record vacates ( id. at 55). However, if a succession claim is not timely asserted, it tends to impair a landlord's ability to investigate and prosecute its rights ( Id.). Thus, where an occupant does not timely assert a succession claim, it is generally deemed waived ( Id.; see also Third Lenox Terrace Assoc., 23 Misc 3d 126[A] ["To ensure the fair and orderly resolution of succession disputes, the governing Code provision contemplates the timely interposition of succession claims"]).
In order to qualify as a successor to a tenancy, the Code "requires simultaneous tenancy by the potential successor with the rent-stabilized tenant for the two years immediately prior to the tenant's permanent removal from the premises" ( Glass v Brookford LLC, 29 AD3d 347, 349 [1st Dept 2006]; 9 NYCRR § 2523.5[b][1]; see also 43 Realty Corp v Buksha, NYLJ, Dec. 11, 1991, at 25, col 2 [Civ Ct, NY County]). As noted above, it is undisputed that the tenant of record stopped primarily residing in the subject premises in 2003. While the tenant of record periodically used the apartment over the next couple of years, it is conceded that the use was occasional, at best, and ceased long ago. During this period, three lease renewal offers were made in 2004, 2006 and 2008. The tenant of record's daughter acknowledges that during this time, she failed to assert her claim and instead brought or sent the lease renewal offers to the tenant of record to sign and return. The tenant of record also continued to pay the rent each month in his own name drawn from an account with the subject premises listed as the address. Under these circumstances, the daughter waived her right to assert her succession claim. Thus, based on respondents' actions detailed above, the earliest date that the tenant of record could have been deemed to have permanently vacated the subject premises for purposes of a succession claim is July 2010 when the last renewal lease expired ( cf. 72A Realty Assoc. v Kutno, 15 Misc 3d at 102; Third Lenox Terrace Assoc. v Edwards, 23 Misc 3d 126[A]; Metropolitan Life Ins. Co. v Butler, 2002 NY Slip Op 50014[U]). During the immediate preceding two-year period, there is no showing that respondent lived in the premises with his daughter, thus summary judgment is appropriate as the daughter cannot establish that she primarily resided with the tenant of record for two years prior to his permanent vacatur ( cf. Metropolitan Life Ins. Co., 2002 NY Slip Op 50014[U]).
There are limited exceptions in which a potential successor's delay in asserting his or her rights is not deemed to undermine a succession claim when viewed in the context of the duration of the tenancy and the nature and length of the delay ( see e.g. 354 East 66th Street Realty Corp. v Curry , 26 Misc 3d 130 [A] [App Term, 1st Dept 2010] [15 month delay in asserting succession claim during period of which landlord knew that the tenant of record was in a nursing home did not amount to a waiver of the succession claim]). Here, although the daughter claims petitioner had knowledge of her succession claim, this self serving assertion is factually unsupported and is completely belied by the daughter and tenant of record's actions and thus does not excuse the daughter for the approximate seven-year delay in asserting her rights.
Accordingly, petitioner's motion is granted. Petitioner is awarded a judgment of possession against Joseph Sapinsky, Laura Sapinsky-Blake and Danvil Blake. The warrant to issue forthwith with execution of the warrant stayed through August 31, 2011. Respondents to pay ongoing use and occupancy at the last rent amount by the 5th of each month, without prejudice to each side. As the parties' lease provides for attorneys fees and the tenant of record has not previously surrendered his interest in the premises, petitioner is entitled to an award of reasonable attorneys fees. This matter is restored to the Part F calendar on July 25, 2011 at 9:30 am for a hearing to calculate outstanding use and occupancy and to determine the reasonable amount of attorneys fees incurred in this proceeding that petitioner may collect as the prevailing party under the terms of his lease with the tenant of record.
Petitioner's motion to strike the first affirmative defense is likewise granted as completely devoid of support.
While it is apparent from the motion papers that the tenant of record may have physically abandoned the premises long ago, the answer submitted on his behalf did not concede that he was not primarily residing in the premises. Instead, it simply pleaded the succession claim as an alternative defense in the event the court found that he was no longer primarily residing at the premises. Thus, the attorneys fees clause of the lease is triggered as the issues before the court encompassed the nonprimary residence claim defended by the tenant of record. The court further notes that respondents have failed to oppose that portion of the motion.
The foregoing constitutes the decision and order of this Court, copies of which are being sent to all parties.