Central Harlem Mut. Hous. LP v Whitfield (2011 NY Slip Op 52254(U))

[*1]

Central Harlem Mut. Hous. LP v Whitfield

2011 NY Slip Op 52254(U) [33 Misc 3d 1236(A)]

Decided on December 19, 2011

Civil Court Of The City Of New York, New York 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2011

Civil Court of the City of New York, New York County

Central Harlem Mutual Housing LP, Petitioner-Landlord

against

Michael Whitfield, Respondent-Tenant

67829/11

GAYNIER ASSOCIATES, PLLC

Attorney for Petitioner

291 Broadway, Suite 1200

New York NY 10007

(212) 867-2133

KARP & KALAMOTOUSAKIS, LLP

Attorneys for Respondent

Seven Penn Plaza, Suite 720

New York NY 10001

(212) 564-1250

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by CENTRAL HARLEM MUTUAL HOUSING LP (Petitioner) and seeks to recover possession of the Basement Apartment at 184 Bradhurst Avenue, New York, New York 10039 (Subject Premises) from MICHAEL WHITFIELD (Respondent) based on the allegations that Respondent is a licensee with no ongoing right to occupy the Subject Premises.

PROCEDURAL HISTORY

This proceeding commenced with service of a Notice to Vacate dated March 28, 2011 and Petition and Notice of Petition on or about May 9, 2011. The proceeding was initially returnable on May 31, 2011 in Part D, at which time Respondent failed to appear. The proceeding was adjourned for inquest to June 14, 2011. On June 14th 2011, Respondent appeared and the default was vacated. Respondent's time to answer was extended through June [*2]28, 2011, and Respondent acknowledged receipt of the 30 day notice, but disputed receipt of the notice of petition and petition.

On July 11, Respondent appeared by counsel and filed a written answer asserting affirmative defenses and counterclaims, including as a sixth affirmative defense, that the petition fails to set forth a legally sufficient basis for exemption from rent regulation. On July 13, 2011, Respondent waived the traverse claim and the proceeding was adjourned to August 5, 2011. The proceeding was adjourned multiple additional times until November 14, 2011, when it was assigned to Part R for trial.

The trial commenced on November 14 and continued on November 15 and November 17, 2011, at which time Respondent, through counsel, made the instant oral motion to dismiss on the grounds Petitioner failed to prove its prima facie case, specifically that Petitioner had failed to establish that the Subject Premises was exempt from rent regulation. The Court adjourned the trial and motion to December 9, 2011, for submission of memorandum of law on this central issue. On December 9, 2011 the Court reserved decision on the motion.

RESPONDENT'S MOTION TO DISMISS

This proceeding is a licensee holdover proceeding. Respondent argues Petitioner has failed to establish its prima facie case in that it has failed to demonstrate the Subject Premises are exempt from rent regulation. Both parties concede that the building is subject to Rent Stabilization. Paragraph 6 of the petition asserts "(t)he premises are not subject to the Rent Control Law or the Rent Stabilization Law of 1969 as amended, in that the permissible use and occupancy of the Premises is as a Super's Apartment' as set forth in the certificate of occupancy for the Premises."

Exhibits 3 and 3(a) in evidence relate to the Certificate of Occupancy. The Certificate of occupancy provides that the basement has a Super's Apartment, storage, gas meter, water meter room and boiler room. The basement has 1 unit which is zoned as a dwelling that is the Super's apartment which is made up of three rooms which are habitable pursuant to the Building Code.

Petitioner relies on the Certificate of Occupancy's designation of the Subject Premises as a "Super's Apartment" as the basis to claim that the Subject Premises are exempt from rent regulation. The Rent Stabilization Code covers all housing accommodations which are not specifically exempt. § 2520.6 defines a housing accommodation as "(t)hat part of any building or structure, occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment, and all services, privileges, furnishings, furniture and facilities supplied in connection with the occupation thereof (see also Rosenberg v Gettes 187 Misc 2d 790 super's apartment constitutes a housing accommodation under the Rent Stabilization Code)."

§2520.11(m) of the Code provides, that the code shall not apply to " housing accommodations occupied by domestic servants, superintendents, caretakers, managers or other employees to whom the space is provided as part or all of their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the housing accommodation is a part".

Respondent rented the Subject Premises pursuant to a written agreement, has paid rent and was never employed by Petitioner. The exemption is inapplicable to Respondent.

Respondent is in occupancy pursuant to a written "license agreement" which commenced on January 1, 2004, providing for a month to month tenancy for a term through December 31, [*3]2005 at a monthly rent of $600 (Exhibit 7).

Exhibit 7 is a written agreement between Community Assisted Tenant Controlled Housing and House Works Realty & Michael Whitfield. The agreement provided that the apartment was to be used for "temporary relocation purposes." Petitioner's witness acknowledged there was no relocation apartment applicable to Respondent and that Respondent remained in occupancy after 2005 and continued to pay rent after said date, which was accepted by Petitioner.

§2520.11(m) of the Rent Stabilization Code provides for a temporary exemption based on the premises being used by a building owner's employee. If the premises are not used for that purpose, the exemption is not applicable . The basis for the exemption is that if the occupancy of the apartment is incidental to employment, a landlord-tenant relationship generally does not exist (Weisberg v. Cohen 129 AD 496; Kwong v Guido 129 Misc 2d 211 exemption from regulation based on super's occupancy exists only so long as premises is occupied by the super). In this case it is clear that there is a landlord tenant relationship between Petitioner and Respondent.^[FN1]

Petitioner allowed Respondent to live in the Subject Premises, pursuant to a written agreement requiring the payment of rent. The mere designation of the Subject Premises as a "Super's Apartment" on the certificate of occupancy does not qualify as an exemption from rent regulation, where the premises is not being used by a super as an incidence of employment. Similarly, the fact that Petitioner labeled the agreement a "license agreement" rather than a lease, or that the payments made by Respondent were labeled "use and occupancy" rather than rent does not change this result.

Legally, this Court sees no significance to the description of the apartment on the certificate of occupancy as a "Super's Apartment" rather than just an "Apartment". The Housing Maintenance Code defines "Apartment" as "one or more living rooms, arranged to be occupied as a unit separate from all other rooms within a dwelling, with lawful sanitary facilities and a lawful kitchen or kitchenette for the exclusive use of the family residing in such unit (Section 27-2004(a)(14) )." There is no separate definition for a "Super's Apartment", nor has Petitioner come forward with any legal authority to support its claim that the designation of the apartment on the certificate of occupancy is a basis for exemption from rent regulation.

The failure of Petitioner to establish that the Subject Premises is exempt from rent regulation (656 Realty LLC v Cabrera 27 Misc 3d 138(A)), and failure of Petitioner to establish that Respondent is a licensee require the dismissal of the proceeding.

Petitioner argues in its memo that the Subject Premises was used by Respondent for commercial purposes and that the premises should be exempt pursuant to §2520.11(n) of the Rent Stabilization Code. However, Petitioner did not plead this as a basis for relief in the petition, nor did Petitioner make a motion to amend its pleading to reflect such an allegation at the close of its prima facie case. [*4]

Moreover, the Court notes that Petitioner treated the apartment as being used for residential purposes.Petitioner registered the unit as subject to rent stabilization with DHCR for the years 2004 through 2009 (Exhibit A), and Petitioner commenced a residential non-payment proceeding against Respondent in 2009 which continued through 2010 (Exhibit 4). While this does not confer regulatory status on the Subject Premises, it certainly weighs against a finding that Petitioner believed the premises to be exempt based on commercial use.

Based on the foregoing, the Court grants Respondent's motion to dismiss, finding that Petitioner has failed to establish its prima facie case in that it has failed to establish the Subject Premises are exempt from rent regulation and failing to establish that respondent is a licensee.

This constitutes the decision and order of this Court.

Dated: New York, New York

December 19, 2011

Sabrina B. Kraus, JHC

Footnotes

Footnote 1: The Court notes that Petitioner's witness at trial Gerry Puente, testified that there is a Superintendent for the building, and that the Super does not reside in the Subject Building. Mr. Puente did not know if there had ever been a resident super .