Dorafield Realty Corp. v Davis (2010 NY Slip Op 50171(U))

Dorafield Realty Corp. v Davis

2010 NY Slip Op 50171(U) [26 Misc 3d 1218(A)]

Decided on February 3, 2010

Civil Court Of The City Of New York, Kings County

Heymann, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Petitioner commenced this holdover proceeding on January 8, 2009, after having served a Notice to Cure and Notice to Terminate which were thereafter incorporated in the Petition.

The Notice to Cure, dated September 22, 2008, claims that the respondent 1) unreasonably refused the landlord access to make repairs and 2) illegally assigned or sublet the leased premises without the consent of the landlord and that the respondent has "not lived at Apartment for or about six months, living instead in Trinidad, West Indies."

The termination notice, dated December 29, 2008, reiterates the allegations of denial of access and states that "[f]rom on or about February 2008, to date, one Nayamkah Gamba ["Jane [*2]Doe" - granddaughter of the tenant of record] together with an unknown man, and a child, has continued to reside permanently at Apartment 2, 251 Jefferson Avenue, Brooklyn, New York 11216" [the subject premises].

Prior to serving the Petition and Notice of Petition, the petitioner sought to obtain access to the subject premises by applying for an Order to Show Cause [OSC] for said purpose, returnable in the HP Part. That OSC was denied by this Court, then presiding in the HP Part, "pursuant to Civ Ct Directive DRP-105 dated 10/17/89 citing Double A Prop Assoc v Spears, NYLJ 10/2/89, p26, col4 which states that the relief sought is injunctive in nature and cannot be commenced by OSC - P must bring H/O proc".

On July 2, 2009, Judge Ofshtein denied the respondents' initial motion to dismiss this proceeding for failure to state a cause of action, stating, in part, that the parties through their attorneys stipulated to discovery and that said denial is "without prejudice to respondent's rights to raise the issues after petitioner's prima facie case." The matter was then adjourned pending discovery and/or settlement.

Petitioner's counsel conducted depositions of respondents Davis and Gamba on September 28, 2009 and counsel for the respondents conducted depositions of the petitioner's agents, Whitfield and Eudora Haywood, on October 1, 2009.

Discovery having been completed, the respondents moved this Court on January 21, 2010 to dismiss the proceeding on the ground that they are entitled to summary judgment as there are no genuine issues of material fact remaining.

Counsel for the respondents argued that based on the depositions of the petitioner's agents, access was no longer an issue and it was clear that no illegal sublet or assignment ever occurred.

In opposition, petitioner's counsel averred that these were issues that could only be resolved after a trial and that even if there are currently no repairs to be made that require access, petitioner wanted to use the trial as a means to establish a pattern of ongoing objectionable conduct on behalf of the respondent Gamba. Counsel further noted that her client has no objection to Ms. Davis remaining in her apartment but wants to have Ms. Gamba removed.

Petitioner maintains that the prior denial of respondents' first motion to dismiss precludes the instant motion and that a trial was "mandated" by Judge Ofshtein's statement in her order regarding the "respondent's rights to raise the issues after petitioner's prima facie case". (Emphasis added) At first blush this would appear to be a valid interpretation of that phrase in the order. However, the Court then adjourned the proceeding for discovery and as a result of that discovery the respondents concluded that there are no issues to be tried, which prompted the instant motion before the Court.

In order for the Court to determine whether the respondents' conclusions are correct and that summary judgment on behalf of the respondents is warranted, the sworn statements of the parties at their respective depositions are crucial to ascertaining if, in fact, there are any issues remaining that require an evidentiary hearing.^[FN1] [*3]

Based on the transcripts of the petitioner's agents and the excerpts of respondents' testimony provided in counsel's affirmation in opposition, the Court concludes that access for repairs is no longer an issue to be resolved and it is clear that Ms. Davis never sublet or assigned the subject premises to her granddaughter, Ms. Gamba, or anyone else.

There is no dispute that Ms. Davis frequently traveled to Trinidad to be with family and always returned to the subject premises.

Although the petitioner's counsel alleges that Ms. Davis left her apartment at the end of 2008 to go to Trinidad with no intent of returning, when questioned in that regard, Whitfield Haywood stated the following:

Q So it could have been that she was just going to take another trip to Trinidad?

A In my position, and in her position if someone said to me I am leaving, I take it that they are vacating the apartment.

Q But that wasn't the first time that she had those conversations with you, right?

AShe was always saying she wanted to go home, she was tired, she had a problem with her heart.

Q So you said from time to time she would say she was leaving?

(Page 26, lines 6 - 25) (Emphasis added)

AThis time it seemed definite. She said, "By the end of the year I'll be gone."

AWell, she would say she was leaving or she was going home, but she was still here.

Q To your knowledge, did Miss Davis ever tell you that she was subletting apartment two to her granddaughter?

A No, but when she said she was leaving I told her please don't leave Miss Gamba there, and she said, "Oh, no, she is going to California, she and her boyfriend."

Q Did you have any reason to believe that Miss Davis was charging Miss

(Page 34, lines 13 - 25) (Emphasis added)

Gamba rent?

Q Are you aware of any documents that would indicate that Miss Gamba is a subtenant of Miss Davis?

Q So when you got the money from Miss Gamba, you would accept that as the rent for Eileen Davis?

Similarly, Eudora Haywood's testimony corroborated her husband's statements that Ms. Davis never vacated the subject premises, nor sublet them:

Q So even though she said to you that she was leaving prior to September 30, 2006, she didn't actually move out?

Q To your knowledge, has Miss Davis lived anywhere else beside unit two since you bought the building?

Q And you didn't send any correspondence to Miss Davis confirming your understanding that she was moving out?

Q To your knowledge, did Miss Davis ever tell you that she was subletting apartment two to Miss Gamba?

Q She never told you. And did she ever indicate to you that she was charging Miss Gamba rent?

QAre you aware of any document that would indicate that there is a tenant-subtenant relationship between Miss Davis and Miss Gamba?

(Page 22, lines 13 - 25)

Q So there is nothing that would give rise to a belief that there is a subtenancy?

AWhenever Miss Davis go away Gamba is always there. She is the one that's in the apartment.

Q Currently, is Miss Davis or anybody in her apartment denying you or anybody else from Dorafield Realty access to the apartment?

A Not at the present, but in the past.

(Page 30, lines 5 - 7; 13 -15; 21 - 25)

The burden of proof in prosecuting this holdover proceeding rests with the petitioner. In view of the sworn testimony of petitioner's agents that there is no longer any issue of access and there never was any sublet or assignment of the subject premises, a trial at this juncture is pointless, as there are no findings of fact to be determined or access orders to be rendered.Moreover, in either or both scenarios, the respondents would be given a post-trial cure period to rectify the alleged violations of the lease regarding the illegal subletting or assignment and/or denial of access if said violations were proven. Renwick Realty v. Molina, NYLJ, 11/20/02, p.26, col.1; 1225 Realty Corp. v. Bethea, 2006 NY SlipOp 50089(U); RPAPL §753(4).

The petitioner's attempts to demonstrate that Ms. Davis is absent from her apartment for extended periods of time would be relevant if the petitioner commenced a non-primary residence proceeding, but even then the number of days asserted fall short of the 183 day threshold, which is one of several factors to be considered in such a case. In this case, however, it is of no consequence. See, Santorini Equities, Inc. v Picarra, NYLJ, 2/2/10, p.43, col.1 (AD 1st Dept.); [*6]235 West 71 Street, LLC v. Chehak, 16 AD3d 242; "[T]he occupancy of a close family member in an apartment during the absence of the tenant of record does not constitute an illegal sublet as a matter of law." 2500 Broadway, LLC v. Ward, NYLJ, 3/3/04, p.19, col.1; PLWJ Realty Inc. v. Gonzalez, 285 AD2d 370 (AD 1st Dept.).

Real Property Law §235-f (b)3 ^[FN2] allows for Ms. Davis to have her granddaughter reside in the subject premises along with her male friend and his or her child as long as Ms. Davis maintains said premises as her primary residence, which cannot be contested in this proceeding. Santorini Equities, Inc. v Picarra, supra; Santorini Equities, Inc. v Picarra, 2003 NY SlipOp 50645 (U) (AT 1st Dept.).

Petitioner's insistence that a trial is necessary to establish an ongoing pattern of objectionable conduct by Ms. Gamba is unsupported by the predicate notices served upon the respondents. The only reference to such conduct is in the Notice to Cure which states that the respondent Davis was violating a substantial obligation of her tenancy in that the landlord was not allowed to:

3. Enter Apartment 2 before 9 p.m. at night, and when landlord/owner came at 9 p.m., they were verbally assaulted, abused and prevented from gaining access to said Apartment.

This bare bones allegation without specifying the date(s) or number of occurrences is insufficient to demonstrate nuisance or an ongoing pattern of objectionable conduct.

For the forgoing reasons, the respondents' motion for summary judgment is granted and the petitioner's cross-motion seeking sanctions for respondents' "frivolous" motion is denied.

This constitutes the Decision and Order of the Court.

Dated: February 3, 2010_____________________________