In this ejectment action, plaintiff moves for summary judgment for an order of ejectment, and defendants cross-move for summary judgment to dismiss the complaint (motion sequence numbers 002, 003). The issue presented is whether the landlord may evict rent-stabilized lodging house tenants, where the floor on which tenants live is divided into fewer cubicles than that provided in the building's certificate of occupancy, without first attempting to regularize the use.

Plaintiff 81 Bowery Realty Corp., a New York corporation, is the owner and landlord of a mixed-use commercial/residential building located at 81 Bowery Street in the County, City and State of New York (the building). Daskalakis Affirm., Exhibit A [Complaint] ¶¶ 1, 4, 37. Plaintiff alleges that the building is a lodging house, and that the 28 named defendants occupy cubicles ^[FN1] on the fourth floor of the building. Id. ¶¶ 5-36. Eighteen defendants answered the complaint, and they contend that they are rent-stabilized tenants living in Single Room Occupancy (SRO) units registered with the Division of Housing and Community Renewal. Plaintiff does not dispute that defendants are protected by rent stabilization regulations. Daskalakis Affirm. ¶ 22.

On April 11, 2005, plaintiff allegedly served defendants with a 7 day notice of termination. Complaint ¶ 43. On May 11, 2005, plaintiff commenced this action, asserting claims for common-law ejectment and ejectment under Rent Stabilization Code § 2524.3 (c) and for a declaration to quiet title.

Plaintiff alleges that, on December 17, 2004, the New York City Department of Buildings issued it a Notice of Violation and Hearing, No. 34455686X, which states, in pertinent part:

"Occupancy Contrary To That Allowed by Certificate of Occupancy No.80576 In That Use [of the] 2, 3, & 4 floor[s] Has Been Converted Into A Hotel Contrary To [the] Certificate of Occupancy, 35 cubicles 4th FL, 19 3rd and 31 2nd FL.

Remedy: Discontinue or Legalize."

The Certificate of Occupancy, dated September 8, 1980, provides that the permissible use and occupancy for the fourth floor of the building shall be for "62 cubicles." Lee Aff., Ex C. Section 27-198.2 (a) of the Building Code of the City of New Yorks provides, in pertinent part: "No single room occupancy multiple dwelling shall be altered to reduce the number of single room occupancy dwelling units and no single room occupancy multiple dwelling shall be demolished." [*2]

Plaintiff contends that, to correct the violation, defendants must be ejected from the premises so that the 35 cubicles currently on the fourth floor can be torn down to create 62 cubicles in conformity with the Certificate of Occupancy. Plaintiff claims that it "did not reduce the number of cubicles and does not know who [sic] and when the number of cubicles was reduced." Lee Aff. ¶ 14.

81 Bowery now moves for summary judgment granting it an order of ejectment, and defendants cross-move for summary judgment dismissing the complaint.

The standards for summary judgment are well settled.

"[T]he proponent of a summary judgment motion 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"

As a threshold matter, defendants argue that plaintiff cannot bring a common law cause of action for ejectment because defendants are rent stabilized tenants. Although certain appellate courts have held that Supreme Court should have transferred specific ejectment actions to Housing Court and Civil Court (3054 Godwin Terrace Realty Co. v Armstrong, 190 AD2d 617, 617-618 [1st Dept 1993]["Although couched in terms of declaratory judgment, the action essentially seeks to evict rent stabilized tenants for violations of the City Health Code. The Housing Part is competent to hear such claims"]; 1770 E. 14th St. Assocs. v Harris, 209 AD2d 390 [2d Dept 1994][Supreme Court should have transferred purported action for ejectment to Civil Court rather than dismissing the action]), it is not apparent whether a summary proceeding based on illegal occupancy lies against defendants. For example, in holdover proceedings involving illegal basement apartments, courts have ruled that relief in a summary proceeding is not available, due to the lack of a multiple dwelling registration. Khelawan v Corneil, 190 Misc 2d 621, 623 (Hous Part, Civ Ct, NY County 2002); Manabhal v Talavera, NYLJ, Aug 18, 1993, at 24, col 3 (Hous Part, Civ Ct, Kings County 1993); accord Scott v Haynes, NYLJ, Oct 30, 1996, at 29, col 2 (Sup Ct, Kings County 1996). Even where there is a multiple dwelling registration, one court has held that the landlord still cannot recover possession of an illegal unit by a summary proceeding. Frank Pizza Irrevocable Trust v Burns, NYLJ, Oct 7, 1998, at 29, col 1 (Hous Part, Civ Ct, Kings County 1998 ["This magic' MDR number will not insulate petitioner from the consequences of violating the certificate of occupancy"]).

Defendants have not cited any authority holding that ejectment against defendants does not lie. "Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception, the common-law action for ejectment still survives in New York and is more properly referred to as an action to recover possession of real property." Alleyne v Townsley, 110 AD2d 674, 675 (2d Dept 1985) (internal citation omitted). Defendants did not make any motion to transfer the action to the Housing Court when this matter was before Justice Soto. [*3]Instead, the parties engaged in discovery for several years. Moreover, defendants have not set forth any provision of the Rent Stabilization Code which plaintiff did not comply with in seeking to terminate defendants' tenancies.

Turning to the merits, plaintiff's ground for terminating defendants' tenancies is based on Rent Stabilization Code [9 NYCRR] § 2524.3 (c): "Occupancy of the housing accommodation by the tenant is illegal because of the requirements of law and the owner is subject to civil or criminal penalties therefor . . . ." Defendants argue that the existence of a violation is insufficient to terminate a rent-stabilized tenancy. Plaintiff argues that it is not legally obligated to legalize the defendants' SRO cubicles, absent a contract with defendants for that purpose, citing Fazio v Kelly, 2003 NY Slip Op 51276 (Civ Ct, Richmond County 2003).

As defendants indicate,

"It is well settled that a landlord may not remove a tenant on the ground of illegal occupancy where: (1) the landlord created the illegality, or (2) where the landlord took title with notice of an illegality created by a predecessor in title, and (3) the illegality is susceptible of cure without undue expense or difficulty."

"Even assuming the existence of a violation, landlord failed to make the requisite showing that the certificate of occupancy is incapable of amendment (see Dinicu v Groff Studios Corp., 257 AD2d 218, 223 [1999]) or that such an amendment would be unduly burdensome (see Matter of K & G Co. v Reyes, 52 Misc 2d 606 [1966])."

Plaintiff's reliance on Fazio is unavailing. Fazio is contrary to the large majority of cases addressing these issues, and seems to be contrary to the appellate precedent in its own department. McDonnell v Sir Prize Contr. Corp., 32 AD2d 660, supra. "When an ejectment is predicated on NYC RSC 2524-3(c), the landlord has an obligation to cure the illegal condition or show that it would be unduly burdensome or economically infeasable to cure the violation and legalize the occupancy." Kaur v Sobhey, 5 Misc 3d 1012(A) (Civ Ct, Kings County 2004) (collecting cases); C & E Assocs. LLC v Hernandez, NYLJ, at 27, col 1 (Civ Ct, NY County 2008).

Plaintiff admittedly did not inquire of the Department of Buildings about the possibility of amending the Certificate of Occupancy from the 62 cubicles to 35 cubicles on the fourth floor. Neither does plaintiff contend that it would be an undue expense or difficulty to amend the Certificate of Occupancy. [*4]

Accordingly, plaintiff's motion for summary judgment is denied. Because defendants also moved for summary judgment in their favor, plaintiff was required to lay bare its proof that the Certificate of Occupancy was either incapable of amendment, or would entail undue expense or burden. Plaintiff did not come forward with any such evidence to raise a triable issue of fact. Thus, defendants' motion for summary judgment is granted, and the first and second causes of action, denominated as "claims," are dismissed.

Plaintiff's third cause of action, for a declaration to quiet title, is dismissed. Because "the basis of the tenant[s'] claim is an interest pursuant to a lease, no claim adverse to the landlord's interest in the property is asserted, and the complaint fails to state a cause of action." East 41st Street Assocs. v 18 East 42nd St., L.P., 248 AD2d 112, 114 (1st Dept 1998). The Court notes that plaintiff's papers do not contain any arguments addressing this cause of action at all.

On the Court's own motion, the complaint is dismissed as to the defendants who have not answered the complaint, because plaintiff did not take a default judgment against those defendants within a year after their default. CPLR 3215 (c). Given the lack of evidence as to whether plaintiff even attempted to legalize defendants' occupancy, there would be no good cause to permit plaintiff to prosecute the action against the defendants who have not answered.

ACCORDINGLY, it is hereby

ORDERED that plaintiff's motion for summary judgment is denied (Motion Seq. No. 002); and it is further

ORDERED that defendants' motion for summary judgment is granted (Motion Seq. No. 003), and the complaint is dismissed.

Dated: June 18, 2008

New York, New YorkENTER:

s/

J.S.C.