[*1]
2976 Marion, LLC v University Consultation Ctr.
2014 NY Slip Op 51063(U) [44 Misc 3d 1209(A)]
Decided on June 11, 2014
Civil Court Of The City Of New York, Bronx County
Vargas, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2014
Civil Court of the City of New York, Bronx County


2976 Marion, LLC, Petitioner-Landlord,

against

University Consultation Center, Respondent-Tenant, - and - "JOHN DOE" and/or "JANE DOE," Respondents-Occupants.




L & T 007112/2014
Javier E. Vargas, J.

Upon the foregoing papers and for the following reasons, the motion by Respondent University Consultation Center ("Tenant"), for summary judgment dismissing the instant holdover proceeding, is denied; and Petitioner 2976 Marion, LLC's ("Landlord") cross motion for an order granting summary judgment of possession in its favor, is granted.



The corporate Tenant, allegedly residing at the subject premises located at 2976 Marion Avenue, Apt. E-1, in Bronx, New York, is a self-described not-for-profit "behavioral health" corporation founded in 1950, which provides "affordable behavioral health, clinical and rehabilitative residential case management and support to those in need." Since 2007, Landlord has issued Rent-Stabilized Renewal Lease agreements solely in the name of the corporate Tenant without identifying any designated individual or group of individuals as the intended occupants of the Premises. It appears that certain problems arose with the current occupant, prompting Landlord to correspond with Tenant on September 24, 2013, requesting a relocation of that occupant. Nothing apparently occurred.



On October 23, 2013, Landlord served upon Tenant a "Notice of Intention not to Renew its Lease," pursuant to Rent Stabilization Code § 2524.4, electing not to renew the parties' Lease Agreement and terminate the rent-stabilized tenancy upon its January 31, 2014 expiration, alleging in relevant part that:

[Y]ou are not occupying your apartment as your primary residence. The facts to support the Owner/Landlord's belief and this notice are that [Tenant] does not reside in the above-referenced premises the majority of time; and [Tenant] has maintained its primary residence in another location. As [Tenant] has maintained its primary location in another location, [Tenant] has not resided in said apartment for a majority of the time [or at least 183 days a year]; therefore, the subject premises has not been and is not [its] primary residence. The Landlord based this conclusion on the fact that [Tenant] maintain its primary residence at its place of business located at 102 Grand Concourse, Bronx, NY 10451. In fact, [Tenant] does not utilize the subject apartment as its place of residence for, nor does it utilize the subject apartment as a place of residence for [its] employees and/or officers. Furthermore, [Tenant] does not reside in the subject apartment as it has sublet said premises to an alternate individual, who is not [its] employee. Said alternate individual has been seen coming and going, to and from the subject premises, and even then this individual is frequently observed entering and exiting the subject premises. These observations have been confirmed by agents of the Landlord, as well as other tenants in the building.



Following the Notice, Tenant failed to vacate the Premises or relocate its occupant.



As a result, by Notice of Petition and Petition dated February 3, 2014, Landlord commenced the instant non-primary residence holdover proceeding against Tenant seeking a final Judgment of Possession of the Premises, the issuance of a warrant and interim use and occupancy as well as counsel fees, alleging that the subject rent-stabilized Premises are not Tenant's primary residence because it has maintained another residence, and has not resided thereat for a majority of the time or at least 183 days per year. On March 6, 2014, Tenant filed a Verified Answer, generally denying most of the allegations in the Petition, interposing a counterclaim for counsel fees and three affirmative defenses, to wit: first, that the Petition failed to state a cause of action because Landlord and its predecessors knew that the purpose of Tenant's tenancy was to provide housing for "persons in need of its services;" second, that Landlord was barred from commencing this proceeding because of that knowledge; and third, that laches prevented this proceeding because Landlord had been aware of these circumstances since 2007. Motion practice then ensued.



Specifically, by Notice of Motion dated April 9, 2014, Tenant moves for an order granting summary judgment pursuant to CPLR 3212, dismissing the proceeding on the grounds that the Predicate Termination Notice is defective and legally insufficient in that the Premises is the primary residence of Tenant and the undertenants, who are recipients of its rehabilitative services, and that Landlord entered into the rental agreement with Tenant with "full knowledge that no corporate member would occupy the subject premises and acquiesced to this use of the apartment in this manner." In opposition, Landlord cross moves for summary judgment of possession in its favor, by Notice of Motion for Summary Judgment dated April 15, 2014, on the basis that there are no facts in dispute as to its entitlement of possession because Tenant is a nonprofit corporation that does not reside in the subject Premises and the Renewal Leases do not specify an occupant or class of occupants residing thereat. This Court agrees.



Summary judgment is only appropriate when the movant meets its initial burden of [*2]making "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and there are no defenses as a matter of law (Gilbert Frank Corp v Federal Ins. Co., 70 NY2d 966, 967 [1988]). At the same time, it is well-settled that "pleadings and threshold notices in summary proceedings are to be accorded the same liberal construction as papers in civil litigation generally, so that cases may be disposed of on the merits" (501 Seventh Ave. Assoc. LLC v. 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50799 [AT 1st 2005], quoting Brusco v Miller, 167 Misc 2d 54, 55 [1995]). "[T]he appropriate standard for assessment of the adequacy of the notice is one of reasonableness in view of the attendant circumstances" (Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1996], lv denied 90 NY2d 829 [1997]; see Rocky 116 LLC v Weston, 195 Misc 2d 363, 365 [AT 1st 2003]). Since predicate notices cannot be amended, they must be legally sufficient to permit the tenant prepare a defense and cannot prejudice or impede such a defense (see e.g. Brusco v Miller, 167 Misc 2d at 55).



Applying these legal principles to the matter at bar, Tenant has failed to demonstrate that the Golub Predicate Notice (see Golub v Frank, 65 NY2d 900 [1985]),[FN1] was legally insufficient or defective in any way. To the contrary, the Notice of Intention not to Renew the Lease sufficiently states the grounds upon which this non-primary residence holdover proceeding is premised, in that Landlord elected to terminate the tenancy at the expiration of the Lease because of its belief that Tenant resided elsewhere, and elucidated the basis of that belief, namely: the unknown occupant of the Premises, witnesses statements about that occupant, and Tenant's specified alternate address. With this Notice, Tenant was put on notice of the basis for the termination of the tenancy, the laws governing the tenancy and the substantive rights involved, all of them sufficient to mount a defense. As such, this Court holds that the Golub Notice is sufficient as a matter of law, and Tenant's motion for summary judgment of dismissal on that basis, is denied.



Turning to Landlord's summary judgment motion, it is now well-settled that a corporate tenant is entitled to a renewal lease under the Rent Stabilization Laws where the lease contractually "specifies a particular individual as the occupant and no perpetual tenancy is possible" (Manocherian v Lenox Hill Hosp., 229 AD2d 197, 205 [1997], lv denied 90 NY2d 835 [1998]; see Avon Bard Co. v Aquarian Foundation, 260 AD2d 207 [1999], appeal dismissed 93 NY2d 998 [1999]; New York Univ. v Kopper's Chocolate Specialty Co., 11 Misc 3d 142[A], 2006 NY Slip Op 50709[U] [AT 2nd 2006]). If the premises are not being used as the primary residence of the contractually designated individual, then a landlord may obtain possession against the corporate tenant via a non-primary residence holdover proceeding (see One Arden Partners, L.P. v Unique People Serv., Inc., 29 Misc 3d 135[A], 2010 NY Slip Op 51977[U] [AT [*3]1st 2010]; WM Wellington, LLC v Grafstein Diamond, Inc., 22 Misc 3d 1123[A], 2009 NY Slip Op 50255[U] [2009]; 416 W. 47th St. Assoc. Ltd. v Fountain House, Inc., 179 Misc 2d 351, 355 [Civ Ct 1998]). This is so because, as explained in Matter of Cale Dev. Co. v Conciliation & Appeals Bd. (94 AD2d 229, 234-235 [1983], affd for reasons stated below 61 NY2d 976 [1984]), "[w]hile, as already indicated, a corporate tenant is entitled to a renewal lease provided it can meet the primary residence test, Rent Stabilization was never intended to place such a tenant's leasehold estate in perpetual trust for the benefit of whomever, at a particular point in time, might happen to occupy a corporate office" (see Melohn v Heins, NYLJ, April 9, 1981, at 10, col 5).



Under these precepts, Landlord has sufficiently established an entitlement to Judgment of Possession as a matter of law in its favor. Preliminarily, Landlord has demonstrated its ownership of the subject Premises by submitting a Certified Deed dated December 29, 2006, and showing the existence of a landlord-tenant relationship with Tenant through the Renewal Lease Agreements between the parties expiring on January 31, 2014. Said tenancy was effectively terminated by the duly served Golub Notice — previously quoted herein above — pursuant to Rent Stabilization Code §§ 2524.2 and 2524.4(c) on the grounds that Tenant was not occupying the Premises as its primary residence. Contrary to Tenant's arguments, the relevant Renewal Leases fail to designate any individuals, or even a class of individuals, who are to reside in the Premises (see Avon Bard Co. v Aquarian Foundation, 260 AD2d at 208). Indeed, despite being provided with a "Tenant Information Update Sheet" accompanying the Renewal Leases, Tenant had utterly failed to fill out the same or designate any occupant for the Premises. Tenants's Motion, Affirmation in Opposition and Affidavit do not even address the existence of the Tenant Information Sheet and the lack of occupant information on that document (see 501 E. 87th St. Realty Co. v Ole Pa Enters., 304 AD2d 310, 311 [2003]).



Nor does San-Dar Assoc. v Permanent Mission of Spain to the United Nations (203 AD2d 196 [1994]) call for a different conclusion. In that non-primary residence holdover proceeding, the landlord had entered into an lease agreement with the Spanish consulate for their leased apartment to be occupied by a particular consular employee, whom, upon his transfer from New York City, "his successor may take over the Ap[artment], but must first be approved by the landlord" (id. at 196). The Appellate Division affirmed the trial court's denial of summary judgment to that landlord, holding that "the controlling issue is whether the current occupant falls within the authorized class and is occupying the apartment as a primary residence" (id.). Unlike the Spanish Mission in San-Dar Assoc., Tenant here failed to either designate a particular individual or even a group of individuals in its Renewal Leases. Tenant's assertion that the Premises were purportedly rented for "persons in need of its services" is too vague and amorphous a description to designate individuals. As such, San-Dar Assoc. lends support to this Court's conclusion.



In accordance with the foregoing, Tenant's motion to dismiss the Petition is denied and Tenant's affirmative defenses and counterclaim are stricken. Landlord's motion for summary judgment in its favor is granted, a Final Judgment of Possession is hereby awarded in its favor and against Tenant and all occupants, and issuance of the warrant shall be had forthwith with execution stayed for ten (10) days after service of Notice of Entry of the Judgment. Landlord is further awarded use and occupancy for the entire holdover period from the expiration of the last lease through the time the apartment is finally vacated (see e.g. Rose Assoc. v Lenox Hill Hosp., [*4]262 AD2d 68 [1999], lv denied 94 NY2d 836 [1999]). The Marshal's Office must notify Adult Protective Services when the eviction is scheduled for protection of the "John Doe" and/or "Jane Doe" occupant. The foregoing constitutes the decision and order of the Court.

E N T E R:



Dated: June 11, 2014

Bronx, New YorkJ.H.C.



To:Andrew F. Troia, Esq.

59 Maiden Lane

41st Floor

New York, New York 10038

Todd Rothenberg, Esq.

271 North Avenue, Suite 115

New Rochelle, NY 10801

Footnotes


Footnote 1:A "Notice of Intent Not to Renew," commonly referred to as a Golub Notice, must be served during the same "window period" of 90 to 150 days that the landlord would have offered a lease renewal if he or she were not seeking to terminate said tenancy (Rent Stabilization Code § 2524.2[c][2][3]). Failure to serve such Notice within the requisite period is a fatal defect that deprives the Court of jurisdiction and requires the landlord to offer a new lease (see Golub v Frank, supra).