Opinion
87540/15
09-22-2017
Mohsen Zandieh, ARASH ZANDIEH & ASHKAN ZANDIEH, Petitioner, v. Grzegorz Polkosnik and MARZANNA POLKOSNIK, Respondents-Tenants.
For Petitioner - Stern & Stern, ESQS., 50 Court Street, Suite 1100, Brooklyn, NY 11201 718-935-9458 For Respondent - Brooklyn Legal Services Corporation A — 260 Broadway 2nd Floor, Brooklyn, NY 11211, 718-487-2315
For Petitioner - Stern & Stern, ESQS., 50 Court Street, Suite 1100, Brooklyn, NY 11201 718-935-9458 For Respondent - Brooklyn Legal Services Corporation A — 260 Broadway 2nd Floor, Brooklyn, NY 11211, 718-487-2315 Cheryl J. Gonzales, J.
Petitioner commenced this residential summary holdover proceeding on or about September 9, 2015, seeking to recover possession of Apartment No.1L, located at 563 Manhattan Avenue, Brooklyn, NY, 11222 on the ground that Arash Zandieh, one of the building's owners, intends to use the apartment as his primary residence. Specifically, in the notice of nonrenewal, Petitioners state that they seek to recover possession of the subject apartment because, at the time of the notice, Arash resided with his girlfriend in Long Beach, New York, and as the building manager for properties located in Brooklyn and Queens his commute to work is more than one hour and a half long. In the notice, Petitioners further state that the subject apartment will be more convenient and accessible to Arash's place of business, and will allow him to better fulfill his business and family responsibilities.
Respondents appeared by counsel and interposed an answer asserting a general denial, and raised several affirmative defenses including that the notice of non-renewal was not served within the window period, the notice lacks sufficient specificity, Petitioners are not permitted to bring this proceeding, retaliatory eviction, and lack of good faith.
After motion practice, the proceeding was transferred to the Expediter and referred to this part for trial.
At trial, Petitioner's first witness, Mohsen Zandieh, testified that he is the owner of the subject building and testified to the elements of Petitioners' prima facie case.
Petitioner's Exhibits 1-5.
Mr. Zandieh further testified that he seeks to recover the apartment for his son Arash. According to Mr. Zandieh, Arash, who is 34 years-old, resides with him and his spouse, but Arash deserves to be independent. Further, Arash uses the home for storage of his personal items which include materials related to his business ventures. Mr. Zandieh testified that as a result, the living room, the den, the basement and the garage are a disaster. This arrangement has created friction in the home, and it has prevented Mr. Zandieh and his spouse from utilizing the house the way they used to. Mr. Zandieh testified that he and his spouse no longer have control of who comes into the home, and do not have control of Arash's comings and goings. Mr. Zandieh testified that it would be helpful for Arash to live in an apartment of his choice so that they can all live independently of each other. In addition, Mr. Zandieh testified that if Arash were able to occupy the subject apartment Arash could conduct his affairs and assist him in managing the family's buildings located in New York City. Mr. Zandieh further testified that he has never sought to recover an apartment for his use, or the use of his family members.
On cross-examination, Mr. Zandieh testified that the subject building is a four-story building and contains two units per floor with a total of 8 units. Ashk Associates LLC purchased the building in 2012, and Mr. Zandieh was the managing member of this LLC. Mr. Zandieh testified that at the time of purchase, all the units in the building were residential and occupied. However, although under the contract the prior owner was to deliver the building vacant, six of the units were occupied. Only Apartment #4R and Apartment #2L were vacant at the time of closing, and Mr. Zandieh testified that he was not aware that the apartments were rent stabilized because they were not registered. However, he was aware that, under the law, the building would be subject to Rent Stabilization. Mr. Zandieh testified that when he purchased the building in 2012, he planned on doing a gut rehab of the building, but only intended on converting what is designated as Apartment #1R on the first floor into a commercial space. Mr. Zandieh also testified that he offered the tenants of Apartment #1L $25,000 to leave, but they rejected his offer. Mr. Zandieh denied telling Respondents that if they did not move he would not renew their lease. Mr. Zandieh also acknowledged sending the letter dated January 25, 2013, which memorialized the $25,000 buyout offer. However, Mr. Zandieh testified that in writing the letter, he did not intend to convey that he would seek to evict Respondents if they did not move by the end of their lease term.
Respondents' Exhibit A.
Respondents' Exhibit B.
Respondents' Exhibit C.
Mr. Zandieh then stated that he served Respondents with a notice to cure dated February 7, 2013, in which he informed Respondents that they had breached the terms of their lease by installing a washing machine in the apartment without seeking prior permission from him. But, he later acknowledged that the lease does not prohibit the use of washing machines in the apartment, and testified that despite the notice to cure Respondents continued to utilize the washing machine. As a result of the continued use, Respondents were sent a notice of termination dated March 5, 2015. Mr. Zandieh acknowledged that around the same time, he received a letter dated March 15, 2013 addressed to him by tenants of the building informing him that they were forming a Tenants Association. Mr. Zandieh also responded to this letter through counsel. Mr. Zandieh then testified that he was unsuccessful in getting Respondents to discontinue use of the washing machine, but the proceeding was nevertheless discontinued by stipulation between the parties. Mr. Zandieh further testified that generally either he, or his son, prepares lease renewals which they do between 90 to 120 days prior to expiration of a lease. Mr. Zandieh later identified a lease renewal executed by the parties for a term running from September 1, 2013 through August 31, 2015, and acknowledged the handwritten changes made to the security deposit section of the lease which were initialed by Arash. Mr. Zandieh further acknowledged receiving a letter from Respondents dated September 23, 2013, addressed to him in which Respondents sought the correction of the security deposit amount and requested a credit. Mr. Zandieh testified that the correction was made, the corrected renewal lease was executed and sent to Respondents. Mr. Zandieh then testified that he hired an architect who filed plans with the NYC Department of Buildings ("DOB" herein) which included a proposed use of the first floor as commercial space. Further, Mr. Zandieh explained that, in his experience, a commercial space commands more rent than a residential unit including a Rent Stabilized residential unit such as the unit Respondents occupy.
Petitioner's Exhibit 2.
Respondents' Exhibit E.
Respondents' Exhibit F.
Respondents' Exhibit G.
Respondents' Exhibit H.
The Court notes that the law states that the window period is 90-150 days [see RSC §2523.5 (a)].
Respondents' Exhibit J.
Petitioner's Exhibit 3.
Respondents' Exhibit B2.
Mr. Zandieh testified that Arash initially made the decision to move into the subject apartment when his girlfriend began employment with Citibank so that she could be closer to work. Later, Arash decided to move into the building when his relationship with his girlfriend did not develop as he had hoped, but the breakup did not occur until after they acquired the building. Mr. Zandieh further testified that the subject building was purchased by the family because he had intended on using one of the apartments for himself, but has never spent any time in any of his buildings, and this was only an idea. Mr. Zandieh then stated that the family decided to transfer the subject property from the LLC to themselves individually so that there would be no impediment should they seek to recover one of the apartments for their own use. Mr. Zandieh testified that although he testified that Arash did not decide to move into the apartment until after the property was transferred to them, it was possible that the subject had been discussed prior to the conveyance. Mr. Zandieh stated that he could not remember when he began drafting documents to change the form of the building's ownership.
Mr. Zandieh testified that the decision to have Arash occupy the subject apartment was made sometime in 2015. The decision was dependent on his relationship with his girlfriend, which was rocky, as well as his management duties. At the time Arash made the decision he was living in Garden City, where he had lived for about a year and a half, and he was living with his girlfriend Monica whose last name Mr. Zandieh did not remember.
On re-direct, Mr. Zandieh testified that the prior holdover proceeding commenced under Index No. 64664/13 was settled with a stipulation of settlement between the parties pursuant to which Respondents were given permission to keep their washing machine and pay surcharges. Mr. Zandieh testified that he hired an architect to file plans with DOB, and instructed the architect to file plans to convert the first floor right into a commercial space, and to leave the rest of the building as residential space. According to Mr. Zandieh, zoning regulations permit commercial use of the first floor of the building, which consists of two apartments, but because Respondents wanted to continue utilizing their apartment as residential space only the one side of the first floor was converted into a commercial space. As a result, the building was left as is with 7 residential units and commercial space on half of the first floor.
Petitioner's Exhibit 6.
On re-cross, Mr. Zandieh testified that zoning regulations and the certificate of occupancy reflect different information regarding classification of the building in terms of the number of residential units and commercial space in the building. Mr. Zandieh claimed that even though his filings with the DOB reflect that the building is zoned for 6 residential units and one commercial space, he only sought to convert the right side of the first floor to commercial space.
Next, Arash Zandieh testified that he currently resides with his parents at their Bittersweet Lane home in Glen Cove, New York, where he occupies the living room as well as the basement. Arash testified that he is currently a real estate manager and the owner of Evolution Comics. As a real estate manager, he is responsible for the maintenance, repairs, and the day to day activities in all the properties owned by the family. As the owner of Evolution Comics, he deals in art, comic books and toys. Evolution Comics' office is located in Little Neck, New York, Arash Zandieh stores all of his merchandise in his parents' home and they have stated to him that his business has taken over their house.
Arash testified that as of May 21, 2015, he lived in Garden City, New York, in a three-story condominium unit that he rented at more than $3,000 a month and shared with his girlfriend Monica. Arash Zandieh testified that he moved out of the apartment he shared with Monica in June 2015 when the lease expired, and he and Monica were no longer a couple. He then moved into his parents' home, and his commute is approximately two and half to three hours in the morning from Glen Cove, New York. He stated that he had to visit the buildings located in Greenpoint, Brooklyn, about 3 to 4 times a week. Mr. Arash Zandieh also testified that he has never sought to recover any apartment owned by the family for his use, and regaining possession of this apartment would allow him to maintain his business by enabling him to make visits to the various businesses owned by the family. Mr. Arash Zandieh stated that the reason he seeks to recover Apartment #1L is because, at the time he decided to move, he was making frequent visits to Manhattan, Brooklyn, and Long Island. Mr. Arash Zandieh described his relationship with Mr. Polkosnik as "very cold", but stated that there was nothing between them that would have caused him to seek possession of the apartment. He added that, should he recover possession of the subject apartment, he intends on using it as his residence his whole life, or at least until he marries. He further testified that he plans to reside in the apartment for at least a year. Mr. Zandieh also testified that he did not intend on altering the certificate of occupancy for the building in any way. In addition, he testified that he never discussed the alterations to the building or to the certificate of occupancy which either his brother or father. However, according to Arash Zandieh in 2013, prior to the family's purchase the building, the building was vacant except for one tenant, and the family hired an architect to draw up plans with that tenant in mind. According to Arash Zandieh, prior to purchasing the building, they were informed that the building was vacant, and the plan was to convert the first floor into a commercial space. Arash testified that he found out prior to the closing that the building was not vacant, and although they had inspected the building prior to the closing and saw tenants in the building, the prior owner had represented that the tenants would move out. As a result of these circumstances, they took possession of the building, as is, with all its tenants. Arash Zandieh also testified that he had no plans to convert Respondents' apartment into a commercial space, and claimed that he is not seeking possession of the apartment in retaliation for Respondents' failure to cooperate with Petitioners' plans.
On cross-examination, Arash Zandieh testified that his address as stated in the notice of nonrenewal was for an apartment in Long Beach, New York, that he occupied between 2013 and 2014. However, as of May of 2015, the date of the notice, he lived in Garden City, New York. Arash Zandieh attributed the discrepancy to a mistake. He later explained that the only address people knew was his Long Beach address because he lives a private life and does not like telling people where he lived. He explained that at the time he moved from an apartment to a private house because he lives a private life, and the move made a big difference in the amount of privacy. He acknowledged that his father knew where he lived, but his father does not know the exact address for places he tries to get to. According to Arash Zandieh, he occupied the Long Beach apartment from August 1, 2013 through June 30, 2014, and as of July 1, 2014 he began occupying an apartment in Garden City, New York, until the lease expired June 2015. Arash Zandieh stated that at the time of the notice of nonrenewal, he and Monica shared an apartment. He and Monica began living together on August 1, 2013, and stopped living together in June of 2015. He testified that Monica started working at Citibank located in Long Island City in January of 2014. In August of 2013, when he and Monica were moving to Long Beach, Arash Zandieh testified that he did not give any consideration to moving into any of his father's properties because his work did not require him to commute as he was working from home. He testified that sometime in April 2014, his comic business picked up, and he began making more frequent trips to Brooklyn and to the City.
Arash Zandieh further testified that if he were to move into one of this father's properties, he would not live rent free. And, although in 2014 his work required him to be in Brooklyn and he made frequent trips to the buildings there, he did not have a need to live in Brooklyn since he was just maintaining the properties and he had the assistance of the building superintendents. At the time he was also living with Monica who did not want to live in Brooklyn since she was working at a bank located in Midtown even though her commute would have been easier from Brooklyn. However, things changed when in April of 2014, while working at Citibank, she expressed her wish to live in Brooklyn. Then around June or July of 2014, the couple moved. At that time he made efforts to locate an apartment in Brooklyn, and his search included apartments located in buildings owned by the family as well as other areas in Brooklyn where the G line runs. However, his efforts were unsuccessful.
Arash Zandieh then testified that he decided that he wanted to move into the subject apartment sometime between April or May of 2014, but waited until May 2015 to seek possession of the apartment. He explained that even though this proceeding was commenced in 2015, the plan to recover possession of the apartment had been put in place about a year prior. He also testified that this apartment is more attractive than other apartments controlled by his family because it is located on the first floor which makes it easier to get in and out, it is within walking distance of the other buildings owned by the family, and it is located away from the other tenants in the building. Further, Mr. Arash Zandieh stated that between the time he decided he wanted to move into the subject building in 2014 and the time the proceeding was commenced in 2015, there were no other available apartments in the building he could have moved into.
Upon inquiry, Arash Zandieh testified that between 2014 and 2015 there was a change of the tenants in Apartment #4R, and he acknowledged that there was in fact a vacancy in the building. However, he claimed that Monica did not want to move into the building at that time. He also acknowledged that his prior testimony that there were no vacant apartments in the building for him to move into before commencing this proceeding was incorrect. Arash Zandieh further acknowledged that Apartment #2L in the building is not rent stabilized, and that when that lease expires he can seek possession of the apartment based on the lease expiration. However, Arash Zandieh stated that he did not wish to evict that tenant because the tenant was "a good guy". He then acknowledged that Apartment #1R became vacant sometime prior to March 2015 and a new tenant moved in. However, Petitioners were unaware that Apartment #1R would become vacant as the prior tenant and the current tenant had made an agreement that the apartment would be turned over to the current tenant, who is also the commercial tenant in the building. According to Arash Zandieh, Petitioners honored the agreement although they were not bound by it. He further testified that he did offer Respondents a lease renewal for a term commencing on September 1, 2013.
Respondents' Exhibit I.
Next, Respondent Marzanna Polkosnik, testified that she has lived in Apartment #1L with her husband for approximately 11 years. Ms. Polkosnik testified that when ownership of the building changed sometime in 2012, the new landlord contacted them and offered money for them to vacate the apartment, but they declined the offer. Ms. Polkosnik testified that after they refused the landlord's offer, the landlord began harassing them. Specifically, Ms. Polkosnik testified that the landlord removed the antenna that provided access to Polish TV stations which had been on the roof of the building; the landlord removed Respondents' belongings from the basement; the landlord removed the laundry line; the landlord changed the electricity during the holiday season; the landlord failed to make required repairs; the landlord made another buyout offer to Respondents; and Mr. Zandieh called Respondents "stupid Polaks". She testified that the ceiling in the bathroom fell twice, and no one came to address the condition. The landlord's response was that he did not have time to address the condition and proceeded to call Respondents "stupid Polaks". Further, Ms. Polkosnik testified that Arash Zandieh did not frequent the building as often as he claimed, and he came to the building when apartments #2L and #4R were being renovated. According to Ms. Polkosnik, the last time she saw Arash Zandieh at the building was about a year ago.
On cross-examination, Ms. Polkosnik testified that she did not ask the landlord for permission to have the antenna on the roof, and when the landlord removed the antenna he did not permit Respondents to replace the antenna. She testified that she was not aware of a lease provision prohibiting the use of antennas in the building. Ms. Polkosnik testified that the laundry line was attached to the building because an old line was already attached to the building, and stated that Petitioner upgraded the electricity during the holiday season to harass Respondents. Ms. Polkosnik further testified that the ceiling first fell down when Petitioners were renovating the apartments upstairs in 2013, but the landlord ultimately repaired the ceiling, and the second time the ceiling fell during Easter of 2016 and it was also fixed.
At the conclusion of the trial, Respondents moved to dismiss the proceeding on the ground that the renewal lease was not served within the proper window period. Respondents state that because of changes made to the security deposit amount, the corrected renewal was not returned to them until September 2013. This, they argue, constituted a late offer and thus changed the date when the lease was to commence, and because of the inaccurate commencement date of the renewal the window period for service of the notice of nonrenewal also changed. As a result, they argue that Petitioners' service of the notice fell outside of the window period and cannot serve as a proper predicate to this proceeding.
In opposition, Petitioners counter that they tendered the renewal lease to Respondents on May 20, 2013, 90 days prior to its expiration, and it was signed on August 28, 2013 with the same commencement period as all prior renewals. Petitioners assert that the security deposit amount contained in the tendered renewal was later corrected and the correction did not otherwise change the other terms of the renewal lease. Petitioners further assert that Respondents never notified Petitioners that they elected to have the lease commence 90 days after the correction, and even began paying the new rent immediately. Further, once the error was pointed out to Petitioners, the renewal was amended, the lease was tendered timely and therefore the notice of nonrenewal was timely served.
Petitioners commenced this proceeding pursuant to Rent Stabilization Code ("RSC" herein) §2524.4 (a)(1). RSC §2524.4 (a)(1) provides that the owner of a rent stabilized unit may opt not to offer the tenant a renewal lease on the ground that he or she seeks to recover the apartment for his use or that of an immediate family member. Immediate family member is defined to include the son of an owner (see RSC § 2520.6 [n]). Notwithstanding, the owner bears the burden to prove by a preponderance of the evidence that he has a genuine intention to recover the apartment for his use or that of an immediate family member (see Nestor v Britt, 213 AD2d 255, 624 NYS2d 14 [1st Dept 1995]). Good faith has been determined by considering the credibility of the testifying witnesses and an appraisal of the totality of the circumstances (see Horsford v Bacott, 32 AD3d 310, 820 NYS2d 554 [1st Dept 2006]; Chan v Adossa, 195 Misc 2d 590, 595, 760 NYS2d 609 [App Term, 2nd Dept 2003]; Basic Holding Corp v Gabel, 21 AD2d 874, 251 NYS2d 367 [1st Dept 1964]). It has been held that "a finding of lack of good faith is not mandated by either the claimed availability of other apartments or any prior discord between the parties" and that "'absolute synchronicity' between the trial evidence and the allegations set out in a predicate notice is not required" (see Gussow v Hornblower, 4 Misc 3d 131 (A), 791 NYS2d 869 [App Term, 1st Dept 2004]; Matter of Berlinrut v Leventhal, 43 AD2d 522, 349 NYS2d 82 [1st Dept 1973]; and Santos v Staples, 8 Misc 3d 138 (A), 806 NYS2d 448 [App Term, 2nd and 11th Jud Dists 2005]). In addition, "the owner is not required to occupy an apartment that is not controlled and thus diminish his income from his property" (Matter of Berlinrut, id. at 522). However, the "inquiry into good faith" includes an inquiry into "the landlord's honest intention to gain possession for his own use" (id). Further, the evidence of "bad feelings" between the parties is not evidence of lack of good faith by an owner seeking to recover possession (Gerson v Albert, NYLJ, Nov 5, 1986 at 11, col 6 [Civ Ct, NY County 1986]). In particular, where incidents between a landlord and tenant occurred years prior to the proceeding, they have been held too remote to constitute proof of retaliation; and where the "incidents are minor disagreements which can reasonably be expected between a landlord and tenant in a tenancy which lasted ten years" no retaliatory motive can be inferred (Gerson, id).
In addition, Real Property Law ("RPL" herein) § 223-b (1) provides that no landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for a good faith complaint to a governmental authority of the landlord's alleged violation of any health or safety law, actions taken in good faith to secure or enforce any rights under the lease or rental agreement under RPL § 235-b ("Warranty of habitability"), or the tenant's participation in activities of a tenant's organization. Moreover, pursuant to RPL § 223-b (5), a rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession within six months after a good faith complaint was made to a governmental authority of the landlord's violation of any health or safety law. The effect of the presumption shall be to require the landlord to provide a credible explanation of a non-retaliatory motive for his acts, and such an explanation shall overcome and remove the presumption unless the tenant disproves it by a preponderance of the evidence.
Upon a review of the testimonial and documentary evidence presented at trial, this Court finds that Petitioners failed to establish that their intention to recover the subject apartment for Arash Zandieh's use is genuine. The testimony of the witnesses at trial was not credible, and their version of the facts relating to their intent to recover the apartment changed during the trial and contradicted the allegations contained in the notice of termination which was served upon Respondents. The notice of nonrenewal stated a Long Beach address for Arash Zandieh even though he had not been living at that address for some time. Arash Zandieh explained the discrepancy as a mistake, and stated that he was a private person who did not like to share where he resided. However, in his testimony he also stated that he moved from an apartment in Long Beach into a house in Garden City which offered more privacy. This undermines his claim for possession of the subject apartment since the apartment would not meet his professed need for great privacy. The evidence also showed that Petitioners intended on doing a gut rehab of the building and turning the entire first floor of the building into a commercial space. Mr. Zandieh's testimony regarding Petitioners' intention to only convert one side of the first floor into a commercial space was contradicted by the filings made with DOB. His explanation for the discrepancy was not credible, and the evidence showed that Petitioners began to harbor feelings of resentment toward Respondents when they refused to accept their buyout offer. What ensued after Respondents rejected the offer for a buyout were a series of attempts to harass Respondents into giving up their rent stabilized tenancy. First, Petitioners began denying Respondents privileges which they had enjoyed under prior ownership of the building, including removing the antenna and the clothing line attached to the building. Then, the holdover proceeding that followed shortly after Petitioners obtained ownership of the building was commenced for use of a washing machine in the apartment which is not prohibited by the lease between the parties and simply required the payment of surcharges. Further, Arash Zandieh described the relationship between the parties as being "cold", which is in contrast to his description of his relationship with other tenants in the building whom he testified he would prefer not to evict. Moreover, Ms. Polkosnik's testimony that she had not seen Arash Zandieh at the building as often as he testified to being in the building was unrebutted and undermines Petitioners' claims. And, in his own testimony, Arash Zandieh described waiting a year to seek possession of the apartment not only because Respondents were in occupancy, but also because they had been cold and difficult with Petitioners.
Based on the foregoing, the petition is hereby dismissed. Respondents' request for attorney's fees is granted to the extent that the matter is set for a hearing on October 30, 2017 at 2:15 p.m. to determine the amount of fees.
This constitutes the decision and order of this Court.
All trial exhibits may be picked up in Part P, Room 506 within 30 days. Dated: September 22, 2017 _____________________________ Cheryl J. Gonzales, J.H.C.