[*1]
1466 Holding Ltd. v Barasona
2015 NY Slip Op 50840(U) [47 Misc 3d 1224(A)]
Decided on May 29, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2015
Civil Court of the City of New York, Bronx County


1466 Holding Ltd., Petitioner-Landlord,

against

Leroy Barasona, AL PEYREFITTE, "JOHN DOE" and "JANE DOE,", Respondents.




L & T 025483/2014



Ita Flug, Esq.



672 Dogwood Avenue



Apt. 311



Franklin Square, New York 11011



Jason M. Hadley, Esq.



The Legal Aid Society



1118 Grand Concourse, Room 250



Bronx, New York 10456



Legal Services NYC-Bronx



349 East 149th Street



10th Floor



Bronx, New York 10451


Javier E. Vargas, J.

Papers Numbered



Notice of Motion, Affirmation & Exhibits Annexed.................................1



Affirmation in Opposition & Exhibit Annexed.........................................2



Reply Affirmation & Exhibits Annexed....................................................3



Supplemental Affidavit..............................................................................4



Sur-Reply by Respondent...........................................................................5



Upon the foregoing papers and for the following reasons, the motion by Petitioner-Landlord 1466 Holding LTD. ("Landlord") for, inter alia, preclusion and summary judgment on its holdover proceeding, is granted, and a Final Judgment of Possession is hereby awarded to Landlord.



Since at least 2001, Respondent Leroy Barasona [FN1] ("Tenant") has ostensibly resided with his family at Premises known as 1466 Townsend Avenue, Apartment 1H, in the Bronx, New York, which are part of a multiple dwelling building owned and managed by Landlord. The Premises are subject to the Rent Stabilization Law of 1969 as amended, and have been duly registered with the New York State Division of Housing and Community Renewal ("DHCR"). However, by Notice to Cure dated February 12, 2014, Landlord served upon Tenant a 10-Day Notice to Cure, stating that Tenant had violated a substantial obligation of his tenancy by subletting/assigning the Premises to an illegal and unrelated undertenant, Respondent Al Peyrefitte and his family, in violation of Rent Stabilization Code (9 NYCRR) § 2525.6 and Real Property Law § 226-b, and that Landlord was further aware that Tenant was renting and primarily residing with his family another rent-stabilized apartment located at 384 East 194th Street, Apt. C, in the Bronx, in violation of Real Property Law § 235-f. The Notice to Cure gave Tenant until March 1, 2014 to remove Peyrefitte and his family from the Premises, or face the termination of his own tenancy. No removal occurred.



As a result, by Notice of Termination dated March 20, 2014, Landlord terminated Tenant's tenancy effective April 8, 2014, based on Tenant's failure to cure its violation, and that, upon his "failure to quit, vacate, surrender possession of the Premises, the Landlord will commence appropriate legal proceedings to recover possession of the Premises." Tenant again failed to either vacate or surrender the Premises. This prompted Landlord to commence the instant illegal sublet holdover proceeding against Tenant, by Notice of Petition and Petition dated April 25, 2014, in order to recover possession of the Premises on the grounds that he illegally sublet/assigned the rent-stabilized Premises without the Landlord's prior knowledge or written permission to an unrelated person, Peyrefitte, and further, that Tenant was no longer occupying [*2]the subject Premises as his primary residence. After several adjournments, both Tenant and Peyrefitte obtained counsel, the Legal Aid Society and Bronx Legal Services of New York, respectively.



Motion practice then ensued. Landlord moved, by Notice of Motion dated July 22, 2014, for an order granting leave to compel Tenant and Peyrefitte to produce documentation in discovery and submit to depositions regarding their occupancy of the Premises, the East 194th Street location, and details of any records — such as tax returns, marriage licenses, divorce decrees, telephone bills, lease agreements, utility bills, and health insurance cards — that they may possess from 2010 to the present. While Tenant opposed the discovery motion, Peyrefitte did not. By Order dated September 10, 2014, the Court (Pinckney, J.) Granted the motion and ordered Tenant and Peyrefitte to provide all the enumerated documents requested in Landlord's discovery requests, with minor exceptions, scheduled the parties' depositions, and ordered Tenant to pay ongoing Use and Occupancy ("U & O") at the same rent rate previously paid, without prejudice and without creating tenancy rights in favor of Peyrefitte.



Only at the eleventh hour did Tenant's counsel fax Landlord's counsel an approximately 110-page facsimile purportedly complying with Landlord's discovery requests, but, which in fact, was comprised of mostly non-responsive documents dated between 2004 and 2009, thus pertaining to a period of time prior to the period specified by Landlord's demands. Peyrefitte failed to produce any documentation at all, denying possession of most of the demanded documents. Upon Landlord's subsequent preclusion motion pursuant to CPLR 3216(3),[FN2] the Court (Pinckney, J.), by Order dated January 25, 2015, conditionally precluded Tenant and Peyrefitte were they to fail in complying with all the documentary evidence requests previously so-ordered, by February 15, 2015. Neither party produced any additional discovery responses.



By Notice of Motion returnable April 17, 2015, Landlord now moves for summary judgment of possession in its favor, pursuant to CPLR 3126(3), 3212 and RPAPL 745(2)(c)(i),[FN3] on the grounds that not only have Tenant and Peyrefitte failed to fully comply with the court-ordered disclosure — thereby requiring preclusion and the deeming of all information sought to be resolved in Landlord's favor, but that all the documentary evidence so far submitted clearly demonstrates that Tenant no longer resides at the Premises in favor of his illegal undertenant, Peyrefitte. In support of its Motion, Landlord submits, inter alia, an Affidavit of its officer, Sol Zalman, who attested that he has been receiving rent check payments directly from Peyrefitte or [*3]his employer at a real estate office located in Far Rockaway, New York; that only Peyrefitte and his family have been seen at the Premises for several months; and that he personally investigated and confirmed that Tenant is employed and resides at the building on 384 East 194th Street, which is owned by 384 East Associates, LLC, where he works as the resident porter!



Other evidence submitted by Landlord in further support of its Motion, includes: (1) Consolidated Edison Co.'s subpoenaed records showing Tenant as the customer of record for the East 194th Street address since 2010 to 2014; (2) Bronx County Housing Court's Petition, Stipulation and Orders to Show Cause of a proceeding (Index No. 62309/2012, Marin, J.) commenced against Tenant and his wife, Shirley Lisbey Barajona, for nonpayment of rent at the East 194th Street apartment; (3) DHCR Rent Registration subpoenaed Records showing Tenant and his wife as tenants of record of the East 194th Street apartment since 2001 to 2014; (4) Social Security Administration correspondence dated December 27, 2011 addressed to Tenant at the East 194th Street address; (5) 2007, 2008, and 2010 U.S. Internal Revenue Service 1040 Tax returns and forms placing Tenant at the East 194th Street address and listing "384 East Associates LLC," as his employer.



In opposition to the Motion, Tenant conclusorily claims, through his counsel's affirmation, that he still lives at the one-bedroom Premises with Peyrefitte and his family apparently as a roommate, and concedes that he had previously helped his wife and four children obtain the East 194th Street apartment, but which is currently occupied only by his family following their separation. Tellingly, however, neither Tenant nor Peyrefitte has provided any document or affidavit with personal knowledge of the facts, affirming to their current circumstances or residence at the Premises, or denying in any way Landlord's primary allegations and documentation. In sum, Tenant's counsel argues that Landlord has failed to establish an entitlement to summary judgment of possession to the Premises because triable issues of fact exist as to his residence and the surrounding circumstances of the illegal sublet to Peyrefitte. This Court disagrees.



It is well settled that in order to succeed on a motion for summary judgment, a movant must establish her claim or defense sufficiently to warrant the court as a matter of law in directing judgment in her favor (CPLR 3212[b]), and she must do so by tender of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It is also well-settled that a sublease is a "transfer by a tenant of part of his estate or interest in the whole, or in a part, of the leased premises" with a reservation of a reversionary interest in the Lease (1 Rasch, New York Landlord & Tenant Summary Proceedings § 9.2 [4th ed 1998]; see 2328 Uniave Corp. v Beheler, 2003 NY Slip Op 51135[U] [NYC Civ Ct 2003]). Rent Stabilization Code § 2525.6(f) prohibits an illegal subletting or assignment, as follows:

An owner may terminate the tenancy of a tenant who sublets contrary to the terms of this section, or assigns without written consent of the owner, but no action or proceeding to terminate tenancy based upon the nonprimary residence of a tenant may be commenced prior to the expiration date of his or her lease



(see Chew v McKenzie, 34 Misc 3d 129[A], 2011 NY Slip Op 52308 [U] [AT 1st 2011]; Rent Stabilization Code § 2524.3[h]). The Rent Stabilization Code further defines a subtenant as a "person lawfully occupying the housing accommodation pursuant to an agreement with the [*4]tenant by authority of the lease or by virtue of rights afforded pursuant to section 226—b of the Real Property law" (Rent Stabilization Code § 2520.6[k]), which in turn also prohibits a tenant from subletting or assigning his/her rights, without written consent from the landlord, unless the lease gives him or her greater rights than the Rent Stabilization Code (see Langham Mansions Co. v Bodine, 117 Misc 2d 925, 926—927 [1983], lv dismissed 59 NY2d 1026 [1983]; Georgetown Leasing LLC v Oakley, 19 Misc 3d 988, 991 [NYC Civ Ct 2008]).



In a summary holdover proceeding to recover possession upon the ground of an illegal subtenancy, a landlord must demonstrate that "a person other than the tenant is shown to be in possession of leasehold premises[;] the law will presume the existence of an assignment or sublet agreement and proof of such agreement is not required," and that the person is not a relative of the tenant or a person with significant connections to the premises (Kimmel v Estate of Lin Kai K'Ung, NYLJ, August 6, 1993, at 21, col 5 [AT 1st Dept]; see Hudson St. Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U] [AT 1st Dept]). The landlord is also required to prove, as part of its prima facie case, that a notice to cure was served and that the tenant has failed to cure (see Rent Stabilization Code § 2524.3[a]). The difference between a roommate — permissible under Real Property Law § 235-f without notice to or permission from a landlord — and a subtenant, whose occupancy is subject to the above statutory provisions, is one of contemporaneous occupancy; it has been held that Real Property Law § 235-f "was enacted to extend protection to unrelated persons sharing a dwelling; it contemplates that the occupant reside in the apartment together with the tenant and that the tenant occupy the premises as his primary residence" (Hudson St. Equities Group, Inc. v Escoffier, supra [McCooe, J., dissenting]; see 305 E. 72nd St. Assoc. v Menocal, NYLJ, December 29, 1986, at 5, col 1 [AT 1st Dept]).



Applying these legal principles to the matter at bar, Landlord has sufficiently established a prima facie showing of its entitlement to summary judgment on its illegal subtenancy claim against Tenant (see Santorini Equities, Inc. v Picarra, 2003 NY Slip Op 50645[U] [AT 1st Dept 2003]). Preliminarily, it should be noted that Tenant and Peyrefitte have been automatically precluded from providing any additional evidence contesting Landlord's allegations of an illegal sublet after 2010, pursuant to Judge Pinckney's "self-executing" 2015 Order (Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008] ["As the conditional order [of preclusion] was self-executing and [Tenant's] failure to produce [the requested] items on or before the date certain rendered it absolute"]; see Gibbs v. St. Barnabas Hosp., 16 NY3d at 78). As such, Landlord's submissions demonstrate, beyond factual dispute, the existence of an illegal sublet by Tenant in favor of Peyrefitte and the failure of Tenant to cure such violation. The evidence, including Peyrefitte's rent payments by check, governmental agency letters and documents submitted by Tenant himself, corroborates that Peyrefitte paid the rent for several months and resides without Landlord's permission or knowledge at the Premises, while Tenant resides at the East 194th Street address before and during the relevant statutory period. As part of its prima facie case, Landlord provided undisputed Social Security Administration correspondence, tax returns and its agent's own observation and investigation of Tenant's employment and residence with his wife and family at the East 194th Street address.



The burden then shifted to Tenant to produce evidence in admissible form to demonstrate the existence of a disputed material issue of fact sufficient to require a trial (see SRM Card Shop, [*5]Inc. v 1740 Broadway Assocs., L.P., 2 AD3d 136, 139-140 [2003]; Johnson v Phillips, 261 AD2d 269, 270 [1999]); CPLR 3212[b]). A party, in opposition to a motion for summary judgment, must assemble and "lay bare" affirmative proof to establish that the matters alleged are real and capable of being established upon a trial (Johnson v Phillips, 261 AD2d at 270). However, no contrary evidence whatsoever be that from Tenant, Peyrefitte, their wives, or other tenants has been submitted by Landlord here in opposing the motion. Counsel's unsupported hearsay affirmation has no probative weight and cannot raise a triable issue of fact (see Zuckerman v City of New York, supra, at 562). Nor are they able to submit any contrary evidence after February 2015, given the self-executing effect of this Court's Preclusion Order and the negative inference permissible given their manifestly willful failure to comply with not only one, but two Orders requiring documentary evidence by both Tenant and Peyrefitte from 2010 to the present (see Legarreta v Neal, 108 AD3d 1067, 1072 [2013]; Burton v Matteliano, 98 AD3d 1248, 1250 [2012]). That failure to produce the requested documents appears more egregious and contumacious given the fact that Tenant did possess and produce the type of records requested, yet studiously avoided such documents postdating the year 2010. They were, therefore, properly precluded.



In accordance with the foregoing, Landlord's motion for summary judgment as to its illegal sublet claim is granted, a Final Judgment of Possession is hereby awarded in its favor and against Tenant and Undertenant Peyrefitte. As the proceeding is based on a breach of the Lease, the issuance of the warrant is stayed for ten days, in accordance with RPAPL 753(4), for Tenant to correct the breach and pay all outstanding U & O arrears to date (see Langham Mansions Co. v Bodine, 117 Misc 2d at 927). In the event Tenant does not cure, the warrant of eviction shall issue immediately, upon submission of an affidavit from Landlord that Tenant has not cured, and the execution of the warrant shall be stayed for 30 days, pursuant to RPAPL § 753(1), for Tenant and Peyrefitte to vacate the subject Premises.



The foregoing constitutes the decision and order of the Court.

E N T E R:



Dated: May 29, 2015

Bronx, New YorkJ.H.C.

Footnotes


Footnote 1:It should be noted that Tenant is also referred interchangeably by his counsel as "Mr. Barajona," which appears to be the correct spelling of his name; as such, the caption, all papers and documents filed in this proceeding are hereby amended to reflect his correct last name nunc pro tunc (see NY City Civ Ct Act § 401; CPLR 3025).

Footnote 2:CPLR 3126 governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," and permits the Court to fashion any remedial order deem "just," such as a conditional preclusion order, an order deeming issues in dispute resolved in movant's favor, or a default judgment against the disobedient party (see CPLR 3042[d], 3126(3); Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79 [2010]).

Footnote 3:Since Judge Pinckney had ordered Tenant to pay U & O during the pendency of this proceeding, RPAPL 745(2)(c)(i) permits a court to dismiss without prejudice a tenant's defenses or counterclaims, or grant a judgment in a landlord's favor, upon a tenant's failure to comply with the rent or U & O provisions.