Opinion
2129804
Decided April 20, 2005.
Gloria O'Connor, the plaintiff herein, has moved this court for summary judgment on the grounds that no triable issues of fact exists and she is entitled to judgment as a matter of law as per CPLR § 3212. Ms. O'Connor's underlying action, pursuant to RPAPL § 601, is to eject the defendants who have been and continue to be in wrongful possession of the basement apartment at 1098 Park Place, Brooklyn, NY since May 31, 2004 despite having been served (on April 15, 2004) with a thirty day notice to vacate and demanded surrender. Ms. O'Connor, as evidenced by her deed and divorce decree, became the sole fee owner of the subject property following the 1990 dissolution her marriage. Ms. O'Connor asserts that since the subject premises are only a lawful two family house, the defendants' occupancies of the basement is not permissible. In addition, the defendants have failed to pay for the reasonable use and occupancy thereof, which from March 1, 2004 to July 31, 2004 total to two-thousand ($2,000.00) dollars.
Ms. Sandra Gallier, the defendant herein, submitted an affidavit in opposition asserting that triable issues of fact exist as a result of the following; to wit, 1. as a tenant in continuous possession since December 2001, she has a right to possession of the basement apartment which she has not surrendered; 2. use and occupancy are questionable since there is no certificate of occupancy for the premises and violations exist therein; and, 3. this court lacks subject matter jurisdiction since the assessed value of the subject premises is less than twenty-five thousand ($25,000.00) dollars. The aforementioned affidavit in opposition was curiously signed by one, Vera P. Caines; and, attached thereto was a summary of events that chronicled the adverse conditions of the apartment and her mistreatment at the hands of the plaintiff, her relatives, and other tenants since the inception of her tenancy. Also included were a series of variously dated criminal court dispute referral centers' complaints alleging harassment by another tenant, the landlord, along with police complaints for criminal mischief, harassment, and illegal eviction.
Although it is undisputed that the defendant was served with a thirty-day notice to vacate and surrender the subject premises, the fact is that both the First and Second Departments of the Appellate Division have held that no notice was required at common law prior to commencing an ejectment proceeding and that there has been no statutory modification of that rule (See Alleyne v. Townsley, 110 AD2d 674, 487 NYS2d 600 [2nd Dept. 1985] and East 82 LLC v. O'Gomley, 295 AD2d 173, 743 NYS2d 473 [1st Dept. 2002]). Pursuant to RPAPL § 612, the only time that notice is required in an ejectment proceeding is when the claim is based on reverter of an estate or for the breach of a condition subsequent. In all other instances, the complaint must simply set forth the plaintiff's interest in the property, and describe it with reasonable certainty in such manner that, from the description, possession of the property claimed may be delivered (see RPAPL § 641). Any argument that notice is required by Real Property Law, § 232-a is inapposite. That section applies to the initiation of summary proceedings only after service of a thirty day notice upon a month to month tenant who holds over after the expiration of his or her term.
Under Multiple Dwelling Law 300(5) and the NYC Administrative Code § 27-217, a written permit is a pre-requisite for the legal occupancy of a basement or cellar. In addition, § 302(1)(b) provides that no rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent ( See Shamir v. Perry, 4 Misc 3d 1022[A], 2004 WL 2035004, 2004 NY slip Op. 50994[U], citing 11 Realty Corp. V. William Norton, et al., 189 Misc2d 389 and Jalinos v. Ramkalup, 255 AD2d 293 [2nd Dept. 1998]; Mannino et. al. v. Fielder, 165 Misc2d 605, 629 NYS2d 651; Hornfeld v. Gaare,130 AD2d 398, 515 NYS2d 258; Santiago v. Perez, NYLJ, July 16, 1992, p. 25, col. 3 [Civ. Ct., Qns. Cty.]). Therefore, since neither of the parties has attested to the existence of a valid permit for the rental of the basement apartment being utilized by the defendant herein, it is clear that the subject rental is illegal, and that no valid landlord-tenant relationship ever existed. It is also established in the case law that a landlord's consent to the illegal occupancy is not a defense as "public policy would render nugatory any consent thus given" (See Wack v. Boutin, 81 NYS2d 281 [App. Term, 2nd Dept.], and Fazio v. D'Angelo, 2003 WL 22227363 (NY Civ. Ct.), 2003 NY Slip Op. 51276[U]). In a similar vein, it has been held that "arguably, a petitioner who has acted with unclean hands in collecting rent from an illegal basement apartment could be relegated to bringing a more costly and time-consuming ejectment action in either the Supreme Court [as this plaintiff has elected] or Civil Court. In weighing the equities it is clear that public policy compels this Court to place first and foremost the well-being of the tenant, the public and any firefighters or other emergency personnel that might be called to the premises if calamity struck." (See DelGigante v. Danilova, 188 Misc2d 240, 727 NYS2d 861, citing, Sorenson v. Ramon, NYLJ, 5/17/00, 34:1 (Civ.Ct. Richmond County). In short, jurisdiction over illegal apartment evictions extends from Housing Court to Civil Court to Supreme Court.
It is interesting to note that while the DelGigante, supra, court opined that whether legalization of the subject premises is a remedy available to the tenant is a question that can be considered in due course, the Fazio, supra, court emphatically stated that ". . . there is nothing in the law that permits the court to force the landlord to legalize the apartment absent a contract between the parties to achieve that purpose." This court is inclined to agree with the latter holding.
On the basis of the foregoing, it is clear that the plaintiff, notwithstanding the various arguments hereinabove raised by the defendant, is entitled to an order of ejectment pursuant to Article 6 of the RPAPL, but not to the collection of rents and/or use and occupancy. Accordingly, the plaintiff's request herein for summary judgment on the grounds that there are no triable issues of fact is granted as per CPLR § 3212. Her demand for use and occupancy, however, is denied. This constitutes the decision and order of this court.