Civil Court of the City of New York, Kings County, March 2, 2020

The Legal Aid Society, Brooklyn Neighborhood Office, Brooklyn (Aviv Lipman of counsel), for respondent.

Law Offices of Scott D. Gross, Westbury, for petitioner.

The decision and order on this motion is as follows:

Petitioner commenced this summary proceeding, after the expiration of a 10-day notice to quit licensee (notice), seeking to recover possession of the basement apartment in the building located at 85 Eastern Parkway, in Brooklyn, alleging that respondent Elizabeth Cano is a licensee of Hector Ortiz, who is employed as the superintendent of the building. The notice alleges that Ortiz had been granted possession of the apartment as an incident of his employment, and that Ortiz and Cano had occupied the apartment until marital difficulties caused Ortiz to vacate. The notice further alleges that on August 15, 2019, Ortiz surrendered all interest that he had in the apartment, and that respondent remained as his licensee, whose license expired with his surrender.

The proceeding first appeared on the court's calendar on October 15, 2019, and was adjourned on several occasions. On November 7, 2019, respondent, at the time self-represented, interposed a written answer. On November 18, 2019, respondent appeared by counsel, and the proceeding was adjourned further, with the instant motion initially returnable on December 18, 2019.

The motion seeks an order granting leave to interpose a written answer and to deem the annexed proposed amended answer served and filed, and upon such amendment seeks summary judgment premised on the third, fourth and fifth affirmative defenses contained within the proposed amended answer.

Petitioner consents to the branch of the motion seeking leave to interpose an amended answer. That branch of the motion is therefore granted without opposition, and the proposed amended answer annexed to the motion is deemed served and filed.

Summary judgment is to be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." (CPLR 3212 [b].) Summary judgment is a drastic remedy, one to be granted only when there is no doubt that no triable issue of material fact exists (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The{**67 Misc 3d at 553} proponent of summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the movant succeeds in doing so, the party opposing the motion must demonstrate, through the presentation of evidence in admissible form, the existence of a factual issue requiring trial (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Neither the "shadowy semblance" of an issue (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]) nor "bald conclusory assertions, even if believable" (Gelb v Bucknell Press, 69 AD2d 829, 830 [2d Dept 1979]), are enough to defeat summary judgment.

In order to prevail, then, respondent must establish each element of the defense offered. Here Cano seeks summary judgment on the grounds that petitioner violated Real Property Actions and Proceedings Law § 744. That section provides:

"1. A tenant shall not be removed from possession of a residential unit pursuant to this article because of such person's domestic violence victim status, as defined in section two hundred-twenty-seven-d of the real property law. It shall be a defense to a proceeding to recover possession of a residential unit that a landlord seeks such recovery because of a person's domestic violence victim status, and that, but for such status, the landlord would not seek to recover possession. A landlord may rebut such defense by showing that he or she seeks to recover possession of a residential unit because of any other lawful ground.

"2. Nothing in this section shall restrict a landlord's legal rights to recover possession of a residential unit on grounds not based on or derived from domestic violence victim status.

"3. A landlord shall not be civilly liable to other tenants, guests, invitees, or licensees arising from reasonable and good faith efforts to comply with this section."

The Real Property Law provides that

"[f]or the purposes of this section, a person is a 'domestic violence victim' and possesses 'domestic violence victim status' if such person is or has been . . . in a situation in which such person or child is a victim of an act that would constitute a violent felony offense as enumerated in section 70.02 of the penal law, or a family offense as enumerated in{**67 Misc 3d at 554} subdivision one of section eight hundred twelve of the family court act, and such act is alleged to have been committed by a member of the same family or household, as defined in subdivision one of section eight hundred twelve of the family court act." (Real Property Law § 227-d [1].)

The Family Court Act enumerates a variety of offenses over which the family court and the criminal court have concurrent jurisdiction (Family Ct Act § 812 [1]). Here, respondent offers uncontroverted factual assertions; petitioner, having elected to offer solely the affirmation of counsel in response to a motion for summary judgment, makes none.

Cano acknowledges that at the time she initially moved into the apartment, Ortiz occupied it incident to his employment. Cano asserts that she moved into the apartment on March 1, 2012, that she resides there with her children, and that the two oldest children, aged 20 and 14, are from a prior relationship, while the youngest, age seven, is respondent's child with Ortiz. Cano asserts that after years of physical, emotional and psychological abuse, she started a family court case in April 2019, resulting in the issuance of multiple orders of protection, initially excluding him from the apartment. That exclusion was later removed in subsequent orders of protection, which continued to provide that Ortiz could not speak to Cano or commit any crimes against her but permitted him to enter the apartment and to see their daughter.

Petitioner offers nothing to refute Cano's contentions that she is a domestic violence victim. This court is satisfied that, given the detailed array of conduct, including threats of violence and harassing behavior, respondent satisfies the statutory definition of "domestic violence victim."

As respondent correctly notes, there is a paucity of authority interpreting RPAPL 744. There appear to be two decisions reported that address the statute. Each is factually distinct in a significant way from the instant proceeding. Both were cases commenced in the context of landlord-tenant relationships. In KDG Albany, LP v Dixon (62 Misc 3d 557 [Albany City Ct 2018]), the court found that "Dixon entered into a lease with KDG to rent an apartment" (id. at 558), and noted that

"[t]o establish a defense under RPAPL 744, a tenant must prove two elements: (1) that she is entitled to domestic violence victim status and (2) that the landlord commenced an eviction proceeding{**67 Misc 3d at 555} because of such status. If the tenant establishes both elements, then the eviction proceeding will be dismissed—unless the landlord establishes a lawful reason for the eviction (for example, the nonpayment of rent)" (KDG Albany, LP v Dixon, 62 Misc 3d 557, 561 [Albany City Ct 2018]).

In so holding the court recognized that the threshold for the application of the statute is that the person seeking to invoke its protections must be a tenant.

In Mangan Realty, LLC v Anthony (64 Misc 3d 686 [Civ Ct, Bronx County 2019]), petitioner sought to terminate the tenancy of a rent-stabilized tenant, who invoked the [*3]protections of RPAPL 744 in the context of a motion to dismiss the proceeding. The court declined to dismiss the proceeding, finding that respondent, in the context of a motion to dismiss, had not adequately established domestic violence victim status, and noting that the decision in Dixon had been rendered in the context of a trial. There was no issue before the court as to respondent's status as a tenant.

The protections of RPAPL 744 do not, by its express terms, extend to every domestic violence victim. The statute provides that "[a] tenant shall not be removed from possession" for the grounds set forth in the statute (RPAPL 744 [1]). Here, it is undisputed that Ortiz is employed as a superintendent by petitioner, and occupied the apartment as an incident of his employment at the time Cano moved in. Occupancy incident to employment is recognized as a circumstance in which no landlord-tenant relationship exists; the RPAPL specifically contemplates a summary proceeding when "[t]he person in possession entered into possession as an incident to employment by petitioner, and the time agreed upon for such possession has expired" (RPAPL 713 [11]), and establishes that basis for eviction as one of the "[g]rounds where no landlord-tenant relationship exists" (RPAPL 713). The legislature plainly provided "[a] tenant shall not be removed" (RPAPL 744 [1]). The use of the word "tenant" is telling, particularly in a statute that, two subdivisions later, insulates a landlord from liability to "other tenants, guests, invitees, or licensees" (RPAPL 744 [3]). Cano neither asserts that Ortiz ever entered into a landlord-tenant relationship with petitioner nor that she ever entered into a landlord-tenant relationship with petitioner.

The nearest analogue to this statute is found in the Real Property Law, which provides that{**67 Misc 3d at 556}

"[n]o landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for . . . [a] good faith complaint, by or in behalf of the tenant" (Real Property Law § 223-b [1] [a]).

It has been held that an occupant who remained in possession after the expiration of the lease of the tenant of record "does not have standing to assert a claim of retaliatory eviction" (Kenilworth Equities Ltd. v Di Donato, 8 Misc 3d 130[A], 2005 NY Slip Op 51036[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]).

Cano asks this court to consider legislative history to give RPAPL 744 the expansive interpretation that respondent urges. It has been held that

"statutory text is the clearest indicator of legislative intent, and that a court 'should construe unambiguous language to give effect to its plain meaning' (id.). 'In the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase' (id. [internal quotation marks omitted], quoting Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016]). Where the statutory language is unambiguous, a court need not resort to legislative history" (Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019]).

Here, the statute provides that a tenant is the protected party, while elsewhere distinguishing between tenants, guests, invitees and licensees. When, as in this case, "the language of the statute is clear and unambiguous . . . there is no reason to judicially engraft anything upon the ordinary meaning of the words employed therein" (People v Excell, 254 AD2d 369, 369 [2d Dept 1998]). There is no provision in the statute for the invocation of its protections by someone other than a tenant. It is for the legislature, rather than this court, to extend the protections of the statute beyond parties in a landlord-tenant relationship, though such [*4]a relationship conveys the greatest rights and is the least readily terminable of the relationships governed by the RPAPL. Cano cannot and does not meet the burden of establishing tenancy.{**67 Misc 3d at 557}

The branch of respondent's motion seeking leave to interpose an amended answer is granted as set forth above, and the branch of respondent's motion seeking summary judgment is denied.