Opinion
Index No. L&T 302054/22
05-30-2023
ROYAL ASSOCIATES LLC, Petitioner-Landlord, v. Alicia GOMEZ & Jose Gomez, Respondents-Tenants, Marcela Henao, Ignacio Henao, John Doe & Jane Doe, Respondents-Undertenants.
Attorneys for Petitioner: Jamie Nevins, Esq., Cooper, Paroff & Graham, P.C. Attorneys for Respondent: Aura Zuniga, Esq., Make the Road New York
Attorneys for Petitioner: Jamie Nevins, Esq., Cooper, Paroff & Graham, P.C.
Attorneys for Respondent: Aura Zuniga, Esq., Make the Road New York
Logan J. Schiff, J. The decision and order on Respondent Ignacio Henao's motion is as follows: Relevant Background and Procedural History
The subject holdover was commenced by Petitioner Royal Associates LLC ("Petitioner") upon filing a Notice of Petition and attorney-verified Petition on February 23, 2022. The proceeding is premised on a 10-day termination notice, following a 10-day notice to cure, purporting to terminate the rent-stabilized tenancy of Respondents Alicia Gomez and Jose Gomez ("Respondents-Tenants") pursuant to 9 NYCRR (Rent Stabilization Code) § 2524.3(a) on the basis on an "illegal[ ] sublet and/or assign[ment] of the premises without the prior written consent of the landlord" in violation of Real Property Law § 226(b) and the Rent Stabilization Code ("RSC") § 2525.6. The termination notice states that "[u]pon information and belief, it has been years since the prime tenants Alicia Gomez and Jose Gomez occupied the apartment. It came to the attention of the landlord that the apartment is being occupied by Marcela Henao and Ignacio Henao when a renewal lease was sent to the tenants of record and Marcela and Ignacio attempted to sign and return the renewal with their names No permission has been sought or received for a sub-let of this apartment."
Respondent-Undertenant Ignacio Henao ("Respondent") interposed an answer through counsel on January 30, 2023, and now moves for summary judgment. Respondent argues that he and his spouse Flor Henao a/k/a Jane Doe ("Co-Respondent"), along with their adult children (including Respondent Marcela Henao), are not unlawful sublessees but rather close family members of the tenants of record with extensive historical ties to the apartment, a defense which if established is fatal to an illegal sublet holdover. Respondent further argues that Petitioner's termination notice is impermissibly vague, as it fails to address the familial nature of his relationship with the tenants of record.
In support of his motion Respondent attaches an affidavit in which he states that his spouse Flor Henao is the daughter of the tenant of record Jose Gomez a/k/a Hugo Henao and stepdaughter of Hugo Henao's wife and co-tenant Alicia Gomez. Respondent alleges that he and Flor, along with their then-4-year-old son, moved into 37-19 83rd Street. Apt. 42, Jackson Heights, NY 11372 (the "subject premises") in 1983, where Flor's father Hugo Henao a/k/a Jose Gomez and his wife Alicia Gomez were already living, that Hugo Henao used the pseudonym Jose Gomez when signing leases (which Respondent's attorney surmises was a result of his immigration status upon emigrating from Columbia), that at some point before 2003 Alicia and Hugo moved out of the premises and gave Respondent Ignacio Henao and Co-Respondent Flor Henao the apartment, that Alicia and Hugo lived elsewhere and remained married until Hugo's death in 2003, and that Alicia continued to sign leases long after vacating. Respondent further avers the landlord has been aware of his and Flor's occupancy of the apartment for many years as "the building's superintendent came to the apartment countless times to do repairs" and that Respondent has paid rent directly to the landlord. Respondent attaches substantial documentary evidence in support of his motion, albeit all lacking in certification markings pursuant to CPLR 4518(c) or CPLR 2105.
In opposing the motion Petitioner relies entirely on an attorney affirmation. Without challenging the authenticity or admissibility of Respondent's evidentiary submissions, Petitioner's counsel argues that Respondent has failed to prove that Jose Gomez and Hugo Henao are one and the same person and therefore have failed to establish an immediate family relationship. The remainder of Petitioner's opposition addresses Respondent's failure to show co-occupancy for the requisite two-year period prior to vacatur of the tenants of record as required under the Rent Stabilization Code in order to establish succession rights. DISCUSSION
A rent-stabilized tenant who sublets their apartment without the consent of the landlord risks early termination of the lease pursuant to RSC §§ 2524.3(a) and 2525.6(f) upon service of a termination notice (see RSC § 2524.2(c)(2)). While typically a landlord must serve a 10-day notice to cure prior to termination (see RSC § 2524.3(a) ), a cure period is not required where a tenant "sublets her apartment at market rates to realize substantial profits not lawfully available to the landlord, and does so systematically, for a substantial length of time," particularly through unlawful short-term rentals. ( Goldstein v. Lipetz , 150 A.D.3d 562, 563, 53 N.Y.S.3d 296 [2d Dept. 2017] ; see also Gruber v. Anastas , 100 A.D.3d 829, 829, 954 N.Y.S.2d 568 [2d Dept. 2012] ; 335-7 LLC v. Steele , 52 N.Y.S.3d 248 [App. Term, 1st Dept. 2016] ).
Perhaps because an illegal sublet holdover redresses behavior that undermines the integrity of the Rent Stabilization Law's statutory scheme, a respondent-occupant cannot assert succession rights as a defense (see 901 Bklyn Realty, LLC v. Woods-Najac , 119 N.Y.S.3d 811 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2019] ). Conversely, a rent-stabilized tenant who merely allows a close family member to reside in her apartment for an extended period without engaging in profiteering, has not engaged in an unauthorized sublet, even where the tenant of record resides elsewhere (see id. ; 235 W. 71 St. v. Chechak , 4 Misc.3d 114, 782 N.Y.S.2d 498, 498-99 [App. Term, 1st Dept. 2004], affd 16 A.D.3d 242, 790 N.Y.S.2d 871 [1st Dept. 2005] ; Hudson St. Equities Group, Inc . v. Escoffier , 2003 WL 21994079 at *1–2, 2003 N.Y. Misc. LEXIS 1073 at *2 [App. Term, 1st Dept. 2003] ). Such conduct may justify the commencement of a holdover based on the tenant's failure to maintain the premises as their primary residence upon service of a termination notice 90-150 days before expiration of the lease (see RSC § 2524.2(c)(2); 888 E. 96th St., LLC v. Hargrove , 111 N.Y.S.3d 494 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2018] ; PLWJ Realty, Inc. v. Gonzalez , 285 A.D.2d 370, 370-71, 726 N.Y.S.2d 858 [1st Dept. 2001] ), however, in these cases a remaining family member may interpose a defense of succession rights (see 72A Realty Assocs. v. Kutno, 15 Misc.3d 100, 838 N.Y.S.2d 334 [App. Term 1st Dept. 2007] ; Wittenberg v. Ortega, Hernandez-Feneque , N.Y.L.J., June 9, 1998, 25:1 [App Term 1st Dept. 1998]).
Turning to the particular facts of this case, the court will address first the sufficiency of Petitioner's termination notice, which Respondent's counsel claims is impermissibly vague in that it fails to account for Respondent's familial relationship with the tenants of record (Resp.’s Affrm. ¶ 47). Respondent's Notice of Motion does not request dismissal on this basis, normally a bar to seeking relief (see Carter v. Johnson , 110 A.D.3d 656, 658, 973 N.Y.S.2d 650 [2d Dept. 2013] ). Nonetheless, as summary eviction proceedings are special proceedings governed by Article 4 of the CPLR, it is this court's obligation to survey the sufficiency of all pleadings, papers, and admissions before trial and to render, sua sponte if necessary, any relief permitted on a motion for summary judgment (see CPLR 409(b) ; Bahar v. Schwartzreich , 204 A.D.2d 441, 443, 611 N.Y.S.2d 619 [2d Dept. 1994] ), including as to the sufficiency of any statutory predicate notice (see Greenport Preserv. L.P. v. Heyward , 74 Misc.3d 46, 160 N.Y.S.3d 734, 735 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2021] ; 1646 Union v. Simpson , 62 Misc 3d 142(A), 2019 WL 309986 [App. Term, 2d, 11th &13th Jud. Dists., 2d Dept. 2019] ).
A landlord seeking to terminate a rent-stabilized tenancy is required to serve a predicate notice enumerating the ground for eviction under the Rent Stabilization Code prior to commencement (see RSC § 2524.2(b)). The termination notice must be supported by specific factual statements, not mere conclusions, to enable the tenant to adequately defend herself (see Domen Holding Co. v. Aranovich , 1 N.Y.3d 117, 125, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003] ; 888 E. 96th St., LLC v. Hargrove , 111 N.Y.S.3d 494 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2018] 69 E.M. LLC v. Mejia , 29 N.Y.S.3d 849, 49 Misc.3d 152(A) [App. Term, 1st Dept. 2015] ).
In the context of illegal sublet holdovers, the First and Second Departments require different levels of specificity in the predicate notices. In the First Department, it has long been the case that a landlord need only need to state in the notice to cure and termination notice that it has observed individuals other than the tenant of record residing at the premises, thereby triggering a presumption of an unlawful sublet or assignment (see, e.g., East Vil. RE Holdings LLC v. McGowan , 72 N.Y.S.3d 516 [App. Term, 1st Dept. 2017] ; Amin Mgt LLC v. Martinez , 57 N.Y.S.3d 674, 55 Misc.3d 144(A) [App. Term, 1st Dept. 2017] ).
In contrast, in the Second Department, in which this court sits, the Appellate Term has recently established a heightened notice requirement in cases where a landlord knows or has reason to know that the alleged sublessee is a close family member. In 888 E. 96th St., LLC v. Hargrove , the Appellate Term granted a pre-answer motion to dismiss where the predicate notice stated that the tenant "had not been observed residing at the premises ‘for many months’ and was actually residing at a different address, and that the tenant had sublet the premises to [the movant] without tenant's prior knowledge and written consent" ( 111 N.Y.S.3d 494 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2018] ). In granting dismissal, the court relied on the unrebutted affidavit from the movant stating that he was the respondent's son, that they had lived together for many years, and that he continued residing in the premises after she moved out. The court dismissed the matter, noting that in the absence of allegations in the predicate notice of a revocable contractual relationship between the respondent and her son, or other facts to support a claim the relationship rose to the level of a sublet, the allegations set forth were "more properly resolved in the context of a primary residence proceeding" ( id. ).
More recently in 901 Bklyn Realty, LLC v. Woods-Najac , on an appeal concerning the scope of pre-trial discovery, the Appellate Term emphasized that the general presumption that a sublet occurs where a person other than the lessee is shown to be in possession "does not apply where the person in occupancy is a close family member of the tenant, as the permissible occupancy of family members does not provide a basis for a claim of illegal sublet." ( 119 N.Y.S.3d 811 [App. Term, 2d, 11th & 13th Jud. Dists., 2d Dept. 2019] ). The court then exercised its authority to review the papers pursuant to CPLR 409(b) and dismissed the proceeding given that the predicates notices merely made conclusory allegations as to illegal sublet or assignment. In reaching this conclusion, the Appellate Term appears to have relied on extrinsic evidence that the respondent notified the landlord that she was the daughter of the deceased tenant of record and was asserting her right to succeed to the apartment, claims which are "not a cognizable defense to an illegal sublet proceeding, which must be based solely on the issue of whether there has been an illegal sublet" ( id. ).
Implicit in the Woods-Najac and Hargrove holdings is the fact that succession rights play an important remedial role in the Rent Stabilization Law's regulatory framework (see Matter of Jourdain v. New York State Div. of Hous. & Community Renewal , 159 A.D.3d 41, 45, 70 N.Y.S.3d 239 [2d Dept. 2018] ; Matter of Murphy v. New York State Div. of Hous. & Community Renewal , 21 N.Y.3d 649, 977 N.Y.S.2d 161, 999 N.E.2d 524 [2013] ), which is jeopardized when a landlord files an unlawful sublet holdover against possible successor family members in the absence of specific allegations of a contractual arrangement or profiteering.
Looking at Petitioner's termination notice, it suffers from the same infirmities as the predicate notices in Hargrove and Woods-Najac . The notice merely states that the Respondents-Tenants have not resided in the premises for an extended period, and that other individuals have attempted to sign the lease in their own names, without any specific allegations of a contractual relationship or discussion of the familial relationship between the parties. There is no allegation of profiteering or transient use. Moreover, Petitioner has not offered any admissible rebuttal evidence to the claim in Respondent's affidavit that the tenants of record are immediate family members, and that Respondent and his wife and Co-Respondent have lived continuously in the premises since 1983 with the superintendent's knowledge, and in fact have paid rent directly to the landlord for several years. Finally, Petitioner's acknowledgment in its termination notice that Respondent attempted to sign his name to the most recent renewal lease is a fact that tends to rebut rather than support a claim of a concealed unlawful sublet. Under these circumstances, Petitioner's predicate notice fails to state the facts necessary to authorize commencement of a holdover based on unauthorized sublet or assignment, and the proceeding must be dismissed pursuant to CPLR 409(b). Petitioner's remedy is to commence a primary residence holdover (see 235 W. 71 St. v. Chechak , 4 Misc.3d 114, 782 N.Y.S.2d 498, 498-99 [App. Term, 1st Dept. 2004], affd 16 A.D.3d 242, 790 N.Y.S.2d 871 [1st Dept. 2005] ; Santorini Equities, Inc . v. Picarra , 2003 WL 1793090, 2003 N.Y. Misc. LEXIS 246 [App. Term, 1st Dept. 2003] ; 119 Grand Realty v. Imbert , 2021 N.Y.L.J. LEXIS 414 [Civ. Ct., N.Y.Co. 2021] ; Elk Cent. Props Orchard v. Shaon, 2020 N.Y.L.J. LEXIS 667 [Civ. Ct., N.Y. Co. 2020] ).
The court need not consider Respondent's uncertified exhibits in concluding that the predicate notice is defective given that an unrebutted affidavit can, standing alone, shift the burden on a summary judgment motion where the affiant offers non-conclusory factual assertions within their personal knowledge that resolve all material issues of fact, as opposed to self-serving speculation (see Song v. CA Plaza, LLC , 208 A.D.3d 760, 761, 172 N.Y.S.3d 640 [2d Dept. 2022] ; Hegy v. Coller , 262 A.D.2d 606, 606, 692 N.Y.S.2d 463 [2d Dept. 1999] ; Bendik v. Dybowski , 227 A.D.228, 228, 642 N.Y.S.2d 284 [1st Dept. 1996] ). Here, Petitioner offers no admissible evidence in opposition to the affidavit, instead relying entire on an attorney affirmation, which has no probative value (see Thompson v. Pizzaro 155 A.D.3d 423, 423, 62 N.Y.S.3d 807 (1st Dept. 2017) ; Vermette v. Kenworth Truck Company, Inc ., 68 N.Y.2d 714, 506 N.Y.S.2d 313, 497 N.E.2d 680 [1986] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
To the extent there is some ambiguity whether Co-Respondent Flor Henao's father Hugo Henao and the tenant of record Jose Gomez are one and the same person, such a finding is not necessary at this stage, as it is unrebutted that Respondent and Co-Respondent are close family members of the tenants of record by virtue of Co-Respondent's father Hugo Henao's marriage to the joint tenant of record Alicia Gomez.
The court notes that it does not and cannot determine in this proceeding whether any of the Respondents have established a right to succeed to the apartment, a fact-intensive inquiry that requires establishing a specific familial relationship and co-residency for at least two years before vacatur of the tenant of record (see RSC § 2523.5(b)(1). In contrast, the definition of a close family member for purposes of defeating an unauthorized sublet holdover is more flexible, nor is there a required showing a co-occupancy with the tenant of record for a specific period (see Hudson St. Equities Group, Inc . v. Escoffier , 2003 WL 21994079 at *1–2, 2003 N.Y. Misc. LEXIS 1073 at *2 [App. Term, 1st Dept. 2003] [foster brother of tenant of record with longstanding ties to apartment was a licensee or guest rather than a sublessee]).
CONCLUSION
In light of the above findings, the court dismisses this proceeding pursuant to CPLR 409(b). The clerk is hereby directed to enter a judgment of dismissal in favor of Respondent Ignacio Henao. This constitutes the decision and order of the court.