[*1]
Grezzi v Billera
2008 NY Slip Op 51509(U) [20 Misc 3d 1121(A)]
Decided on July 18, 2008
Civil Court Of The City Of New York, Kings County
Kraus, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 18, 2008
Civil Court of the City of New York, Kings County


Helen Grezzi, Petitioner-Landlord

against

Jessie Billera, Respondent-Tenant




L & T 71792/08



ROSENBERG & ESTIS, P.C.

Attorneys for Petitioner

By: Cecily A. Harris, Esq.

733 Third Avenue

New York , New York 10017

(212) 867-8000

TENENBAUM & BERGER LLP

Attorneys for Respondent

26 Court Street, Penthouse

Brooklyn, New York 11242

(718) 596-3800

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by HELEN GREZZI, ("Petitioner") and seeks to recover possession of Apartment 5E, at 350 Empire Boulevard, Brooklyn, New York, 11217 ("Subject Premises") from the rent-stabilized tenant of record, JESSIE BILLERA ("Respondent") and her daughter ANTHONY BILLERA ("Undertenant"), based on the allegation that Respondent's lease expired on March 31, 2008, the premises are located in a two family house, and not subject to any form of rent regulation.

PROCEDURAL HISTORY

This proceeding was commenced by service of a Notice of Petition and Petition, on or about May 22, 2008.The proceeding was initially returnable on May 28, 2008. Respondent appeared on said date, through counsel, and filed a Notice of Appearance, Answer and Jury Demand. Petitioner moves for an order striking Respondent's affirmative defenses, and awarding Petitioner Summary Judgment. The Court heard argument on July 2, 2008. At oral argument Petitioner's counsel agreed to withdraw any claims for use and occupancy without prejudice. The motion was marked submitted and decision reserved.

FACTS

Petitioner, is an eighty-six year old individual owner of the subject premises, which is a two family home. Respondent is a Real Estate Broker with Prudential Douglas Elliman Real Estate. Respondent had originally acted as a Real Estate Broker in renting out both apartments [*2]in the subject building, pursuant to a written exclusive agreement dated February 21, 2006. Respondent found a tenant for the first floor apartment within a few months of obtaining the listing, and alleges that she was unable to find a tenant for the upstairs apartment, on the terms offered.

Respondent took occupancy of the second floor apartment, as her own residence, either in March or April of 2007. Petitioner alleges that Respondent's initial occupancy was without her knowledge or consent, and that Respondent took the keys, given to her in her capacity as a broker, to gain access to the premises and start living there. Respondent alleges she took occupancy pursuant to an oral agreement with Petitioner's daughter, Barbara Virzi, who also acted as a managing agent for the subject premises.

On or about July 2007, the parties executed a lease agreement for the premises for the period of April 2007 through March 2008.

On or about March 3, 2008, Petitioner issued a five day demand as a predicate for a non-payment proceeding for February and March Rent. The Petition in said proceeding, under Index Number 64146/08 [FN1] was served by conspicuous place service on March 28, 2008. The petition in the nonpayment proceeding was never amended to seek any rent beyond the expiration of the lease in March 2008.

On or about March 30, 2008, Respondent made a 311 complaint to HPD, which resulted in five violations being placed on the subject premises, effective April 9, 2008. On June 25, 2008, the nonpayment proceeding was discontinued without prejudice pursuant to a stipulation executed by the attorneys for both parties.

The lease was not renewed upon its expiration, and as indicated above this holdover proceeding based on the expiration of Respondent's lease followed.

MOTION TO STRIKE AFFIRMATIVE DEFENSES

Respondent's first and second affirmative defenses are respectively based upon a claim on the security deposit, and a warranty of habitability defense. Given Petitioner's withdrawal of the claim for use and occupancy without prejudice, these defenses are no longer appropriately asserted in this proceeding, and are not a defense to Petitioner's claim to possession of the subject premises.

In Goethals Mobile Park, Inc v. Saten Island Meadowbrook Park Civic Assn., 208 AD2d 896 (2nd Dept., 1994), The Appellate Division held in pertinent part:

Even assuming that the purported Building Code violations exist and that they are rent-impairing, their existence serves only as a defense to the recovery of rent, or the recovery of possession based upon nonpayment of rent. The Building Code violations provide a standard for determining violations of the warranty of habitability, and, as indicated above, the breach of warranty does not serve as a defense to a plaintiff's right to recovery in a holdover proceeding

Id. at 897-898, (citations omitted).

Based on the foregoing, Respondent's first and second affirmative defenses
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are dismissed without prejudice.
Respondent's third affirmative defense is based on the allegation of


retaliatory eviction. Petitioner argues that Respondent is precluded from asserting the defense as a matter of law, based on authority [Baxter v. Captain Crow Management et al, 128 Misc 2d 254 (Civ. Ct., NY Co., 1985, Saxe, J.)], which Petitioner argues provides that the defense is only applicable to a tenant in occupancy, pursuant to a lease or other rental agreement. Petitioner further argues that since Respondent's lease has expired, she is not in possession pursuant to any agreement. The authority relied upon by Petitioner, however, actually refers to RPL § 235-d, not RPL § 223-b (Baxter, at 263). RPL § 223-b does not to preclude a tenant in a holdover proceeding, based on the expiration of lease, from asserting the defense

Real Property Law § 223-b provides that a landlord may not commence a holdover proceeding, in retaliation for a tenant's good faith complaint to a government agency regarding, among other things repairs.A rebuttable presumption of retaliation is created, when the proceeding is commenced within six months of the filing of such a complaint.

In this case, Respondent made a complaint with HPD, on or about March 30, 2008, which resulted in four class "B" violations and two class "A" violations being placed on the premises, in April 2008.[FN2] This proceeding was commenced on or about May 2008.

However, the March 30, 2008, complaint filed by Respondent with HPD was made immediately after the service of the Notice of Petition and Petition in the non-payment proceeding between the parties under Index Number 64146/08. Moreover, Respondent does not dispute that no rent was paid after January 2008. The non-payment proceeding was not frivolous, and was brought in good faith. Therefor the presumption referred in RPL § 223-a does not apply to this proceeding, as the complaint was filed in response to Petitioner's initiation of a prior non-payment proceeding.

Moreover, RPL § 223-b(4) provides that in order for the Respondent to prevail on said defense, the Court must find that the landlord is acting in retaliation for said complaint and that "... the landlord would not otherwise have commenced such an action or proceeding." Neither one of these conclusions is applicable to the facts in the case at bar.

Respondent's own Exhibit "A" shows that the parties' relationship had broken down, long before the complaints were filed, and that Petitioner and her daughter repeatedly asked the Respondent about committing to a move out date, long before the complaint was made by respondent to HPD in March 2008.

The emails annexed by Respondent in her opposition papers establish that as early as January 2008, Petitioner's daughter asked Respondent in writing about her plans to move, and whether she had located a new home. The record is clear that Petitioner had repeatedly indicated an intention not to renew Respondent's lease after its expiration. The record is devoid of any material facts indicating that the instant proceeding is retaliatory in any way. As such Respondent's third affirmative defense is dismissed with prejudice.

The fourth affirmative defense asserted by Respondent is harassment based on cited portions of the New York City Administrative Code. The Court finds that the defense, as pled, [*4]must be dismissed, as it states no defense to this holdover proceeding. The defense purports to be predicated on portions of the statute that do not exist. Moreover, the defense does not assert any allegation that would form a defense to this holdover proceeding, based on the expiration of the tenant's lease. Harassment does not apply where as here the lease ended, and there is no legal requirement for Petitioner to offer respondent a new lease.

Finally, the traverse defense asserted in paragraph "6" of Respondent's answer is dismissed. The Court finds that the answer is insufficient to rebut the presumption of proper service created by the affidavit of service of the petition herein, or to require a traverse hearing. Simonds v. Grobman, 277 AD2d 369 (2nd Dept., 2000). Rather, the defense is asserted in conclusory form, and does not address any specific factual allegations of how the papers were served in this proceeding.

PETITIONER'S MOTION FOR SUMMARY JUDGMENT

Petitioner also moves for summary judgment and an order awarding


Petitioner a final judgment of possession and the forthwith issuance of the warrant of eviction. Petitioner has established its prima facie case, in the moving papers, by annexing copies of the deed for the subject premises, the certificate of occupancy for the subject building, the expired lease agreement between the parties. Respondent raises no factual issues regarding Petitioner's prima facie case.

CONCLUSION

Petitioner's request for use and occupancy in this proceeding is severed, without prejudice on consent of Petitioner's counsel. Respondent's first and second affirmative defenses are dismissed without prejudice. Respondent's third and fourth affirmative defenses of retaliatory eviction and harassment are dismissed with prejudice. The traverse defense asserted in paragraph "6" of Respondent's answer is dismissed with prejudice.

Petitioner is awarded a final judgment of possession as against Jessie Billera, Anthony Billera, "John Doe" and "Jane Doe". The warrant of eviction shall issue forthwith. Execution is stayed ten days.

This constitutes the decision and order of this Court.

Dated: Brooklyn, New York___________________

July 18, 2008Sabrina B. Kraus, JHC

TO:

ROSENBERG & ESTIS, P.C.

Attorneys for Petitioner

By: Cecily A. Harris, Esq.

733 Third Avenue

New York , New York 10017

(212) 867-8000 [*5]

TENENBAUM & BERGER LLP

Attorneys for Respondent

26 Court Street, Penthouse

Brooklyn, New York 11242

(718) 596-3800

Footnotes


Footnote 1: For purposes of this motion, and in searching the record on summary judgment, the Court has reviewed said file, and taken judicial notice of the contents of said file in its entirety.

Footnote 2: In addition to the exhibits of the parties regarding the complaint and violations the Court reviewed the complaint history for the subject premises, the status of the complaint, and open violations from the HPD website http://167.153.4.71/hpdonline/select_application.aspx.