Civil Court of the City of New York, Queens County, May 30, 2023

Make the Road New York (Aura Zuniga of counsel) for Ignacio Henao, respondent.

Cooper, Paroff & Graham, P.C. (Jamie Nevins of counsel) for petitioner.

The decision and order on respondent Ignacio Henao's motion is as follows:

Relevant Background and Procedural History

The subject holdover was commenced by petitioner Royal Associates LLC (petitioner) [*2]upon filing a notice of petition and attorney-verified petition on February 23, 2022. The proceeding is premised on a 10-day termination notice, following a 10-day notice to cure, purporting to terminate the rent-stabilized tenancy of respondents Alicia Gomez and Jose Gomez (respondent tenants) pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2524.3 (a) on the basis of an "illegal[ ] sublet and/or assign[ment] [of] the premises without the prior written consent of the landlord" in violation of Real Property Law § 226-b and RSC § 2525.6. The termination notice states that

"[u]pon information and belief, it has been years since the prime tenants Alicia Gomez and Jose Gomez occupied the apartment. It came to the attention of the landlord that the apartment is being occupied by Marcela Henao and Ignacio Henao when a renewal lease was sent to the tenants of record and Marcela and Ignacio attempted to sign and return the renewal with their names . . . No permission has been sought or received for a sub-let of this apartment."

Respondent undertenant Ignacio Henao (respondent) interposed an answer through counsel on January 30, 2023, and now moves for summary judgment. Respondent argues that he and his spouse Flor Henao also known as Jane Doe (corespondent), along with their adult children (including respondent{**80 Misc 3d at 424} Marcela Henao), are not unlawful sublessees but rather close family members of the tenants of record with extensive historical ties to the apartment, a defense which if established is fatal to an illegal sublet holdover. Respondent further argues that petitioner's termination notice is impermissibly vague, as it fails to address the familial nature of his relationship with the tenants of record.

In support of his motion respondent attaches an affidavit in which he states that his spouse Flor Henao is the daughter of the tenant of record Jose Gomez also known as Hugo Henao and stepdaughter of Hugo Henao's wife and co-tenant Alicia Gomez. Respondent alleges that he and Flor, along with their then-four-year-old son, moved into 37-19 83rd Street, apt 42, Jackson Heights, NY 11372 (the subject premises) in 1983, where Flor's father Hugo Henao also known as Jose Gomez and his wife Alicia Gomez were already living, that Hugo Henao used the pseudonym Jose Gomez when signing leases (which respondent's attorney surmises was a result of his immigration status upon emigrating from Columbia), that at some point before 2003 Alicia and Hugo moved out of the premises and gave respondent Ignacio Henao and corespondent Flor Henao the apartment, that Alicia and Hugo lived elsewhere and remained married until Hugo's death in 2003, and that Alicia continued to sign leases long after vacating. Respondent further avers the landlord has been aware of his and Flor's occupancy of the apartment for many years as "the building's superintendent came to the apartment countless times to do repairs" and that respondent has paid rent directly to the landlord. Respondent attaches substantial documentary evidence in support of his motion, albeit all lacking in certification markings pursuant to CPLR 4518 (c) or 2105.

In opposing the motion petitioner relies entirely on an attorney affirmation. Without challenging the authenticity or admissibility of respondent's evidentiary submissions, petitioner's counsel argues that respondent has failed to prove that Jose Gomez and Hugo Henao are one and the same person and therefore has failed to establish an immediate family relationship. The remainder of petitioner's opposition addresses respondent's failure to show co-occupancy for the requisite two-year period prior to vacatur of the tenants of record as required under the Rent Stabilization Code in order to establish succession rights.{**80 Misc 3d at 425}

Discussion

A rent-stabilized tenant who sublets their apartment without the consent of the landlord [*3]risks early termination of the lease pursuant to RSC §§ 2524.3 (a) and 2525.6 (f) upon service of a termination notice (see RSC § 2524.2 [c] [2]). While typically a landlord must serve a 10-day notice to cure prior to termination (see RSC § 2524.3 [a]), a cure period is not required where a tenant "sublets her apartment at market rates to realize substantial profits not lawfully available to the landlord, and does so systematically, for a substantial length of time," particularly through unlawful short-term rentals. (Goldstein v Lipetz, 150 AD3d 562, 563 [1st Dept 2017]; see also Gruber v Anastas, 100 AD3d 829, 829 [2d Dept 2012]; 335-7 LLC v Steele, 53 Misc 3d 150[A], 2016 NY Slip Op 51689[U] [App Term, 1st Dept 2016].)

Perhaps because an illegal sublet holdover redresses behavior that undermines the integrity of the Rent Stabilization Law's statutory scheme, a respondent occupant cannot assert succession rights as a defense (see 901 Bklyn Realty, LLC v Woods-Najac, 65 Misc 3d 158[A], 2019 NY Slip Op 51976[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Conversely, a rent-stabilized tenant who merely allows a close family member to reside in her apartment for an extended period without engaging in profiteering has not engaged in an unauthorized sublet, even where the tenant of record resides elsewhere (see id.; 235 W. 71 St. LLC v Chechak, 4 Misc 3d 114, 115 [App Term, 1st Dept 2004], affd 16 AD3d 242 [1st Dept 2005]; Hudson St. Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U], *3 [App Term, 1st Dept 2003]). Such conduct may justify the commencement of a holdover based on the tenant's failure to maintain the premises as their primary residence upon service of a termination notice 90 to 150 days before expiration of the lease (see RSC § 2524.2 [c] [2]; 888 E. 96th St., LLC v Hargrove, 61 Misc 3d 137[A], 2018 NY Slip Op 51558[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; PLWJ Realty v Gonzalez, 285 AD2d 370, 370-371 [1st Dept 2001]); however, in these cases a remaining family member may interpose a defense of succession rights (see 72A Realty Assoc. v Kutno, 15 Misc 3d 100 [App Term, 1st Dept 2007]; Wittenberg v Ortega, NYLJ, June 9, 1998 at 25, col 1 [App Term, 1st Dept 1998]).

Turning to the particular facts of this case, the court will address first the sufficiency of petitioner's termination notice, which respondent's counsel claims is impermissibly vague in{**80 Misc 3d at 426} that it fails to account for respondent's familial relationship with the tenants of record (respondent's affirmation ¶ 47). Respondent's notice of motion does not request dismissal on this basis, normally a bar to seeking relief (see Carter v Johnson, 110 AD3d 656, 658 [2d Dept 2013]). Nonetheless, as summary eviction proceedings are special proceedings governed by article 4 of the CPLR, it is this court's obligation to survey the sufficiency of all pleadings, papers, and admissions before trial and to render, sua sponte if necessary, any relief permitted on a motion for summary judgment (see CPLR 409 [b]; Matter of Bahar v Schwartzreich, 204 AD2d 441, 443 [2d Dept 1994]), including as to the sufficiency of any statutory predicate notice (see Greenport Preserv., L.P. v Heyward, 74 Misc 3d 46, 47-48 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 1646 Union, LLC v Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A landlord seeking to terminate a rent-stabilized tenancy is required to serve a predicate notice enumerating the ground for eviction under the Rent Stabilization Code prior to commencement (see RSC § 2524.2 [b]). The termination notice must be supported by specific factual statements, not mere conclusions, to enable the tenant to adequately defend herself (see Domen Holding Co. v Aranovich, 1 NY3d 117, 125 [2003]; 888 E. 96th St., LLC v Hargrove, 61 Misc 3d 137[A], 2018 NY Slip Op 51558[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; 69 E.M. LLC v Mejia, 49 Misc 3d 152[A], 2015 NY Slip Op 51765[U] [App Term, 1st Dept 2015]).

In the context of illegal sublet holdovers, the First and Second Departments require [*4]different levels of specificity in the predicate notices. In the First Department, it has long been the case that a landlord need only state in the notice to cure and termination notice that it has observed individuals other than the tenant of record residing at the premises, thereby triggering a presumption of an unlawful sublet or assignment (see e.g. East Vil. RE Holdings LLC v McGowan, 57 Misc 3d 155[A], 2017 NY Slip Op 51623[U] [App Term, 1st Dept 2017]; Amin Mgt LLC v Martinez, 55 Misc 3d 144[A], 2017 NY Slip Op 50664[U] [App Term, 1st Dept 2017]).

In contrast, in the Second Department, in which this court sits, the Appellate Term has recently established a heightened notice requirement in cases where a landlord knows or has reason to know that the alleged sublessee is a close family member. In 888 E. 96th St., LLC v Hargrove, the Appellate{**80 Misc 3d at 427} Term granted a pre-answer motion to dismiss where the predicate notice stated that the tenant "had not been observed residing at the premises 'for many months' and was actually residing at a different address, and that tenant had sublet the premises to [the movant] without landlord's prior knowledge and written consent" (61 Misc 3d 137[A], 2018 NY Slip Op 51558[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In granting dismissal, the court relied on the unrebutted affidavit from the movant stating that he was the respondent's son, that they had lived together for many years, and that he continued residing in the premises after she moved out. The court dismissed the matter, noting that in the absence of allegations in the predicate notice of a contractual relationship between the respondent and her son, or other facts to support a claim the relationship rose to the level of a sublet, the allegations set forth were "more properly resolved in the context of a nonprimary residence proceeding" (2018 NY Slip Op 51558[U], *2).

More recently in 901 Bklyn Realty, LLC v Woods-Najac, on an appeal concerning the scope of pretrial discovery, the Appellate Term emphasized that the general presumption that a sublet occurs where a person other than the lessee is shown to be in possession "does not apply where the person in occupancy is a close family member of the tenant, as the permissible occupancy of family members does not provide a basis for a claim of illegal sublet." (65 Misc 3d 158[A], 2019 NY Slip Op 51976[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019].) The court then exercised its authority to review the papers pursuant to CPLR 409 (b) and dismissed the proceeding given that the predicate notices merely made conclusory allegations as to illegal sublet or assignment. In reaching this conclusion, the Appellate Term appears to have relied on extrinsic evidence that the respondent notified the landlord that she was the daughter of the deceased tenant of record and was asserting her right to succeed to the apartment, a claim which is "not a cognizable defense to an illegal sublet proceeding, which must be determined based solely on the issue of whether there has been an illegal sublet" (id.).

Implicit in the Woods-Najac and Hargrove holdings is the fact that succession rights play an important remedial role in the Rent Stabilization Law's regulatory framework (see Matter of Jourdain v New York State Div. of Hous. & Community Renewal, 159 AD3d 41, 45 [2d Dept 2018]; Matter of Murphy v{**80 Misc 3d at 428}New York State Div. of Hous. & Community Renewal, 21 NY3d 649 [2013]), which is jeopardized when a landlord files an unlawful sublet holdover against possible successor family members in the absence of specific allegations of a contractual arrangement or profiteering.

Looking at petitioner's termination notice, it suffers from the same infirmities as the predicate notices in Hargrove and Woods-Najac. The notice merely states that the respondent tenants have not resided in the premises for an extended period, and that other individuals have attempted to sign the lease in their own names, without any specific allegations of a contractual relationship or discussion of the familial relationship between the parties. There is no allegation [*5]of profiteering or transient use. Moreover, petitioner has not offered any admissible rebuttal evidence to the claim in respondent's affidavit that the tenants of record are immediate family members, and that respondent and his wife and corespondent have lived continuously in the premises since 1983 with the superintendent's knowledge, and in fact have paid rent directly to the landlord for several years.^[FN1] Finally, petitioner's acknowledgment in its termination notice that respondent attempted to sign his name to the most recent renewal lease is a fact that tends to rebut rather than support a claim of a concealed unlawful sublet. Under these circumstances, petitioner's predicate notice fails to state the facts necessary to authorize commencement of a holdover based on unauthorized sublet or assignment, and the proceeding must be dismissed pursuant to CPLR 409 (b).^[FN2] Petitioner's remedy is to commence a primary residence holdover (see 235 W. 71 St. LLC v Chechak, 4 Misc 3d 114, 115 [App Term, 1st Dept 2004], affd{**80 Misc 3d at 429} 16 AD3d 242 [1st Dept 2005]; Santorini Equities, Inc. v Picarra, 2003 NY Slip Op 50645[U] [App Term, 1st Dept 2003]; 119 Grand Realty LLC. v Imbert, 2021 NY Slip Op 32039[U] [Civ Ct, NY County 2021]; Elk Cent. Props Orchard v Shaon, 2020 NYLJ LEXIS 667 [Civ Ct, NY County 2020]).^[FN3]

Conclusion

In light of the above findings, the court dismisses this proceeding pursuant to CPLR 409 (b). The clerk is hereby directed to enter a judgment of dismissal in favor of respondent Ignacio Henao.