Opinion
No. LT–000706–11.
2013-01-10
STP ASSOCIATES, LLC, Petitioner(s) v. Nelson HESS, Respondent(s). STP Associates, LLC, Petitioner(s) v. Marcy Rappaport, Respondent(s).
Mason & Mason, Garden City, Avurtine & Associates, PLLC, Syosset, attorney for petitioner. William Rapp, Esq., Scarborough, by Daniel M. O'Hara, Esq., of Counsel, New York, attorney for respondent.
Mason & Mason, Garden City, Avurtine & Associates, PLLC, Syosset, attorney for petitioner. William Rapp, Esq., Scarborough, by Daniel M. O'Hara, Esq., of Counsel, New York, attorney for respondent.
Frederick C. Kelly, Esq., Monroe, attorney for respondent Bonner.
SCOTT FAIRGRIEVE, J.
This summary proceeding involves the last mobile trailer home park (trailer park) in Nassau County located at 80 West Jericho Turnpike, Syosset, New York. The Petitioner STP Associates, LLC (hereinafter STP) acquired title in April of 2007. STP owns the land but the mobile homes are owned by the Respondents. Petitioner has commenced this holdover proceeding to recover possession of the premises from the Respondents.
Petitioner contends that it wants to evict all the Respondents so that it can develop another use for the property other than as a mobile home park. Respondents have vigorously fought STP's attempts to evict them for approximately six years.
The central issue in this proceeding is whether STP met the requirements of Real Property Law § 233(b)(6). Real Property Law § 233(b)(6) in pertinent states that a landlord may not evict manufactured home tenants unless:
The manufactured home park owner or operator proposes a change in the use of the land comprising the manufactured home park, or a portion thereof, on which the manufactured home is located, from manufactured home lot rentals to some other use, provided the manufactured home owner is given written notice of the proposed change of use and the manufactured home owner's need to secure other accommodations. Whenever a manufactured home park owner or operator gives a notice of proposed change of use to any manufactured home owner, the manufactured home park owner or operator shall, at the same time, give notice of the proposed change of use to all other manufactured home owners in the manufactured home park who will be required to secure other accommodations as a result of such proposed change of use. Eviction proceedings based on a change in use shall not be commenced prior to six months from the service of notice of proposed change in use or the end of the lease term, whichever is later. Such notice shall be served in the manner prescribed in section seven hundred thirty-five of the real property actions and proceedings law or by certified mail, return receipt requested. RPL § 233(b)(6).
Respondent alleges that the Petitioner did not meet its burden of showing that they intended to change the use of the property since the Petitioner failed to present enough evidence to convince the court of its alleged resolve to change the use of the property to a use other than mobile homes. The Respondent asserts that the Petitioner did not take affirmative steps to change the use of the property, and the steps the Petitioner did take were not substantial. According to the Respondents, by taking no further steps beyond conceptual planning, not filing for approval with any municipality, not taking out any construction loans, and not having engineers create engineered site plans, demonstrate that the Petitioner did not intend to change the use of the property. Therefore, the Petitioner had no good-faith intention to change the use of the property. However, the court does not accept Respondent's reasoning. This court's decision in STP Associates v. Drasser, 2011 WL 6303392 (N.Y. Dist. Ct.2011), set the basis for demonstrating STP's good faith intention as follows:
It is noted that “good faith” is not a prerequisite to a finding that the change of use notice itself satisfied the requirements of RPL § 233(b)(6). However, if it is proven that STP's intention was to evict these tenants pursuant to RPL § 233(b)(6) under “theory” that it proposed to change the use of the property, while actually only intending to lease the property to mobile home owners other than the current tenants, STP's basis for evicting the tenants would be a sham, and will not lie. However, the Court does note that STP must merely have a “proposed” change in use. The Court is mindful that a developer's plans can change for any multitude of legitimate reasons. Demonstrating a lack of good faith, i.e., that STP had no intention of ever changing the use of the property, even if it did subsequently lease the property to other mobile home owners, or if it sold the property without implementing a change in use, would be an uphill battle at best for these tenants.
The decision clearly states that the Petitioner must merely show that they had some proposed change in use and it would be very difficult for Respondents to prove otherwise. Petitioner submitted both testimonial and documentary evidence in support of the proposed change in use. All the managing partners at STP testified that STP purchased the property with the intention to convert the property into condominiums or some other use. STP hired architects, engineers, attorneys and conducted research to get the process started. Petitioner also submitted site plans prepared by its architect into evidence. Petitioner's architect also testified that he was hired to do various planning and site studies to develop the property. STP contends that it did not move forward to develop the property because of the ongoing litigation between it and the Respondents. Petitioner has clearly satisfied its light burden of demonstrating that it intended to change the use of the property upon purchase from other than the use of a mobile home park.
Prior to evicting, Petitioner is required to serve a six month proposed change of use notice informing Respondents of the Petitioner's intent to change the use of the land. SeeRPL § 233(b)(6). Acting Supreme Court Justice Steven M. Jaeger noted in his decision of July 26, 2012 that Respondents' attempts to invalidate the six month notice served upon Respondents had been rejected:
Justice Phelan dismissed the Drasser complaint, holding that STP's September, 2009 Change of Use Notices complied with RPL § 233 as a predicate to commence holdover proceedings, that plaintiffs were not entitled to further lease offerings, that the stipulation discontinuing the first action was valid and enforceable, and that plaintiffs were not entitled to injunctive relief.
The Appellate Division, Second Department, affirmed the order dismissing the complaint by order dated December 13, 2011. Drasser v. STP Associates, LLC, 90 AD3d 701. Plaintiffs sought unsuccessfully to stay Justice Phelan's order during the pendency of that appeal.
As a result, STP commenced summary holdover proceedings to evict the plaintiffs in the District Court of Nassau County. Plaintiffs engaged in motion practice in that court challenging the Change of Use Notices. By order dated December 15, 2011, the District Court (Fairgrieve, J.) rejected plaintiff's challenges and held the Notices to be proper. STP Associates, LLC v. Drasser, et al, 2011 N.Y. Slip Op 52243(U).
During trial this court rejected Respondents' attempts to raise the validity of the six month notice as having been previously decided.
Respondents also claimed that the five day mailing rule as required by Matter of ATM One v. Landaverde, 2 NY3d 472, applied to the service of the 30 day notice terminating the Respondents' monthly tenancies.
This court rejected Respondents' argument that the five day mailing rule applied based upon Brooklyn Home for Aged People Housing Development Fund Co. v. Derrick Selby, 32 Misc.3d 130(A), 932 N.Y.S.2d 759 (App Term 2nd, 11th & 13th Jud Dists 2011).
Respondents contended that Petitioner did not properly terminate the tenancies of Barbara Pedote, Robert Dyckman, and Josephine Mitchell when Petitioner served termination notices that expired on February 14, 2011. Real Property Law § 232(b) requires that a notice of termination be timely, definite, and unequivocal. RPL § 232(b). The surrender of possession date must be the same as the expiration of the term or rental period. Hunt v. Hart, 188 Misc. 543, 68 N.Y.S.2d 463. Respondent contends that Petitioner failed to demonstrate which date the tenants lease term commenced and ended, therefore, the Notices of Termination are invalid.
The court does not sustain Respondents' argument. Under New York law, a month-to-month tenancy can only be terminated at the end of the rental month, which is when the term expires. The date when the tenant is required to vacate must coincide with the last day of the rental month, and service of the notice must occur at least thirty days prior to the end of the term. Rasch, New York Landlord & Tenant § 30.24. Based on its testimony, STP clearly established that Respondents Barbara Pedote, Robert Dyckman, and Josephine Mitchell were month-to-month tenants. STP also established that Respondents Pedote, Dyckman, and Mitchell's rents were due on the 15th of the month. Besides its testimony, STP submitted a tenant/rent ledger that was admitted into evidence which clearly shows that the rents of Barbara Pedote, Robert Dyckman, and Josephine Mitchell were due on the 15th of the month. Furthermore, Barbara Pedote testified that she did not have a written lease and that her rent was due on the 15th of the month. STP clearly established that the last day of the rental month was the 15th of the month, therefore the Notices of Termination sent by STP are valid.
Based upon the foregoing, Petitioner is awarded a judgment of possession with the warrant stayed until March 15, 2013. The court is mindful of the additional 90 day notice which the Nassau County Sheriff must serve upon Respondents pursuant to RPL § 233(d). In calculating the 90 day period, the Sheriff must exclude Saturdays and Sundays, and public holidays. SeeRPAPL § 749(2).
So Ordered.