Kantar Investment v. Giacchetto

(Civ. Ct. N.Y. Cty. 7/29/99)

We represented: Petitioner

Maria Milin, J. H. C.

DECISION and ORDER In this holdover proceeding based upon expiration of a sublease in an unregulated co-operative apartment/loft, petitioner moves for an order to strike respondents' affirmative defenses, to amend the petition and to grant petitioner summary judgment. Respondents, solely through their attorney, oppose and cross-move for an order to amend their answer, to permit respondents limited discovery and to award respondents partial summary judgment. For the reasons articulated below, petitioner's motion is granted and respondents' motion is denied.

AFFIRMATIVE DEFENSES

CPLR 3211(b) permits dismissal of a defense on the ground that it is not stated or has no merit. Upon a motion to dismiss a defense pursuant to CPLR 3211(b), the respondent is entitled to the benefit of every reasonable intendment of the pleading, and if there is any doubt as to the availability of a defense, it should not be dismissed (Joel Becker et al v. Elm Air Conditioning Corp., 143 AD2d 965 [2d Dept 1988]). The defenses in this matter are all dismissed as follows:

The first affirmative defense, lack of personal jurisdiction, is stricken on the ground that respondents' assertions are not based upon any specified factual allegation. Respondents have not amplified their claim of inadequate service beyond a mere denial, thus no genuine issue as to the propriety of service is raised (Clarkson Arms v. Arabatiz, NYLJ July 3, 1991 [AT 1st Dept]). Also unsupported is respondents' assertion that service is not adequate or reasonable under the circumstances because petitioner has an additional legal obligation to serve Mr. Giachetto at his office, and that petitioner is aware of its location four floors from the subject premises. Service of process in special proceedings to recover real property is governed by Real Property Actions and Proceedings (RPAPL) § 735, which has no requirement for additional service at a respondent's place of business, even if it is in very close proximity to the residential unit sought to be recovered.

Respondents' second affirmative defense, failure to state a cause of action, is stricken. Under the rubric of failure to state a cause of action, respondent claims that the petition contains the fatal defects that petitioner is not identified as a domestic or a foreign corporation, the legal basis for petitioner's claim for attorneys' fees is not identified and the petition fails to state whether the premises are a multiple dwelling. These are not fatal defects. Petitioner is permitted to amend the petition to reflect that the petitioner is a foreign corporation licensed to do business in New York. Petitioner's claim for legal fees is based upon paragraph 8 of the sublease rider. Finally, individual owners of an apartment/loft, as here, are not required to register the building as a multiple dwelling, nor plead the multiple dwelling status as required by 22 NYCRR 208.42(g) (Eng v. Roth, NYLJ February 8, 1982 p6 c1 [AT 1st Dept]). The principle has become accepted that the defense of failure to state a cause of action may be dismissed if all the other affirmative defenses are found to be legally insufficient (Raine v. Allied Artists Productions, Inc.,63 AD2d 914 [1st Dept 1978]), which is the case here.

Respondents' third affirmative defense, that respondents are protected from eviction by the General Business Law, is stricken. Paragraph 13 of the petition pleads that the dwelling is an owned cooperative unit not occupied by a nonpurchasing tenant as defined under General Business Law § 352-eeee which governs conversions of rental residential property to cooperative or condominium ownership. Pursuant to paragraph (l)(e) of that statute, a non-purchasing tenant is defined as a person who has not purchased under the plan and who is entitled to possession at the time the plan is declared effective or a person to whom a dwelling unit is rented subsequent to the effective date. A person who sublets a dwelling unit from a purchaser under the plan shall not be deemed a non-purchasing tenant. While respondents contend that they are protected from eviction under this statute, no assertion is made that they even occupied the premises at the time that the conversion took place. Merely claiming protection under this provision without asserting a single fact in support of such entitlement, is patently insufficient. The court does not rely upon the contested sublease agreement to reach this conclusion.

Respondents' fourth affirmative defense, that petitioner is acting at the behest of "others", and has no real desire to remove the respondents, is stricken. Respondents assert, with no supporting facts or legal authority, that these unidentified "others" have somehow exercised undue influence upon petitioner by requiring petitioner to commence and maintain this proceeding. Petitioner's status as proprietary-lessee and as an entity that may institute a summary proceeding under RPAPL 721(10) is unaffected by vague claims of mysterious entities bearing ill will.

Respondents' fifth affirmative defense, that respondents' time to answer was improperly restricted, is stricken. Petitioner acknowledges that the language in the notice of petition was not in compliance with RPAPL 743, as the notice of petition erroneously calls for an answer to be submitted at least three days before the petition is noticed to be heard if respondents were served on or before March 24, 1999. The petition was filed March 24, 1999, was noticed to be heard on March 29, 1999, and thus failed to give respondents eight days to answer. Respondents did not comply, however, interposed an answer which was mailed to petitioner on April 15, 1999, and such answer was not rejected. CPLR 2101(f) permits the court to disregard a defect in the form of a paper if a substantial right of a party is not prejudiced. In this case, despite petitioner's failure to indicate in the notice of petition the correct amount of time respondents had to answer, they have not been harmed. This was conceded by respondents. (Affirmation of Kent Karlsson in support of respondents' cross-motion dated May 17, 1999, paragraph 64.) In addition, pursuant to CPLR 2101(f), the party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections. Respondents do not assert that they timely objected to this defect in form, and therefore are deemed to have waived any objection to it in any event. Substance shall be recognized over form where there is no showing of prejudice (Matter of John B. Davie Co., Inc., 80 AD2d 994 [4th Dept 1981]).

Respondents' sixth affirmative defense, that petitioner can show no entitlement to interest on its claim for use and occupancy for March and April 1999, is stricken, to the extent that this claim has been withdrawn by petitioner.

AMENDMENT OF PETITION

Petitioner's application to amend 1 of the petition to indicate that the petitioner is a foreign corporation authorized to do business in New York State is granted. The court in a special proceeding may permit such other pleadings as are authorized in an action upon such terms as it may specify (CPLR 402). Pursuant to CPLR 3025(b) pleadings may be amended by leave of court, which shall be freely given upon such terms as may be just. "If there is not prejudice to the other side, leave to amend must be freely given. The courts stress this time and again." (Seigel, NY Prac § 237 [2d ed]; Fahey v. County of Ontario, 44 NY2d 934,935 [1978]). Respondents have not specified any prejudice or surprise which will result from the granting of this amendment. Furthermore, respondents' objections, that the corporate certificate proffered by petitioner is not the exact same entity as the petitioner, and that there is no proof of a certificate of incorporation for this petitioner, are without merit.

SUMMARY JUDGMENT

Pursuant to CPLR 3212 any party may move for summary judgment. The proponent of a summary judgment motion must make 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 University Med. Center, 64 NY2d 851 [1985]).

Petitioner's claim for summary judgment is based on the facts that the respondents took possession pursuant to a sublease which expired on February 28, 1999, that no rent has been accepted since that time, and that respondents have failed to voluntarily vacate. According to paragraph 9 of the sublease, if respondents hold over beyond the termination date of the sublease, the monthly use and occupancy shall be $10,000.00 per month. Petitioner seeks use and occupancy for the months of March and April as well.

Respondents challenge almost every assertion in the pleading as not properly established: petitioner has not demonstrated that cooperative board approval, a condition of the sublease, was met, and therefore the sublet is a nullity; the sublease and assignment of the proprietary lease are not properly authenticated; the status of the apartment as a loft, as described in the sublease, has not been properly pleaded; Mr. D'Antona's signature on behalf of the petitioner as attorney-in-fact has not been established; and the description of the premises as not being occupied by a non-purchasing tenant pursuant to the General Business Law 325-eeee was not substantiated.

These objections are without merit. Petitioner has provided cooperative board approval for the sublease in question, and therefore the sublease is not void. The court notes that respondents themselves, as signatories to the sublease, do not dispute its validity. Respondents are estopped from contesting petitioner's chain of title, including the assignment to the petitioner of the proprietary lease (Rasch, NY Landlord and Tenant § 5:8). Respondents assert no factual or legal basis for their claim that the petition is defective because the subject premises may be a loft, nor do respondents provide any factual or legal information as to why they should be protected under General Business Law 325-eeee.

For all the above reasons, petitioner's motion for summary judgment is granted, and petitioner is awarded a final judgment of possession. Respondents' cross-motion for partial summary judgment is denied. As a result, the court need not address respondents' claim to amend their answer, nor the request for limited discovery.

This matter is adjourned to August 12,1999 at 9:30 a.m. for a hearing on any stay of the issuance and execution of the warrant of eviction, and on petitioner's claims for use and occupancy and legal fees.