[*1]
Kokot v Green
2007 NY Slip Op 50159(U) [14 Misc 3d 1224(A)]
Decided on January 31, 2007
Civil Court Of The City Of New York, New York County
Wendt, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2007
Civil Court of the City of New York, New York County


Arthur Kokot, Petitioner-Landlord,

against

Keith Green, Respondent-Tenant, -and- "John Doe" and "Jane Doe", Respondents-Undertenants.




L&T94223/06



Belkin, Burden, Wenig & Goldman, LLP, 270 Madison Avenue, New York, New York 10016, Matthew Brett, Esq., of Counsel, for Petitioner

Finkelstein Newman LLP, 225 Broadway, New York, NY, 10007, Jonathan Newman, Esq. for Respondent

Peter M. Wendt, J.

This is a holdover proceeding to recover possession of the subject rent stabilized premises for use and occupancy by petitioner, Arthur Kokot. The apartment in question is located at 210 West 82nd Street, Apt. 3-E, New York, New York 10024.

Respondent moves for dismissal of the proceeding pursuant to CPLR 3211, 3212 and 409(b) based on the claim that the predicate notice of non-renewal is deficient because it fails to state sufficient facts to support the alleged ground for eviction. Respondent further argues that the proceeding [*2]should be dismissed because, even if all of petitioner's allegations were accepted as true, petitioner has not demonstrated that he commenced the within proceeding in "good faith" as a matter of law.

Rent Stabilization Code (RSC) § 2524.2(b) requires that a landlord serve a notice of non-renewal on the tenant prior to the commencement of an owner use proceeding which must state both the legal ground for eviction and the facts to support such ground. RSC § 2524.2(b) provides in pertinent part:

Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

The facts underlying a landlord's claim that a dwelling unit is sought for the landlord's personal use must be set forth with specificity in the notice of non-renewal. The notice must provide specific facts "sufficient adequately to advise ... tenant and to permit it to frame a defense" (Rascoff/Zsyblat Org v Directors Guild of Am., 297 AD2d 241, 242 [2002] ..." McGoldrick v DeCruz, 195 Misc 2d 414 (App Term, 1st Dept, 2003). The reiteration of statutory language in a notice of non-renewal based upon the ground of owner occupancy alone cannot sustain an eviction proceeding. Bauman v Hail, NYLJ Jan 19, 1996, at 25, Co. 2 (App Term, 1st Dept); Numano v Vicario, 165 Misc 2d 457, 458. "In the absence of any factual recitation of the reasons the landlord seeks to recover possession, the notice (is) insufficient to serve as a predicate for eviction proceedings." Numano v Vicario, 165 Misc 2d 457, 458 (App Term, 1st Dept, 1995), citing Berkeley Assoc. Co. V. Camlakides, 173 AD2d 193 (1st Dept, 1991), aff'd, 78 NY2d 1098 (1991). However, as long as the notice sets forth a number of allegations tending to support the grounds for eviction that are fact specific to the particular proceeding, indicating actual reasons why recovery of possession is necessary, the proceeding may continue. "The predicate notice in a holdover summary proceeding need not lay bare a landlord's trial proof" Id. The notice is not required to set forth specific evidentiary details Teachers College v. Kadhi-Smith, NYLJ, 2/8/06, p. 18, col 3 (Civ Ct, NY Co), where such details concern evidentiary matters which may be explored during the discovery phase of the proceeding. [*3]McGoldrick v DeCruz, supra. See also Teichman v Ciapi, 160 Misc 2d 182 (App Term 1st Dept, 1994). In Hughes v Lenox Hill Hospital, 226 AD2d 4, 18 (1st Dept 1996), lv denied 90 NY2d 829, the Court held that the appropriate test to determine the sufficiency of a predicate notice in a summary proceeding "...is one of reasonableness in view of the attendant circumstances."

Here, the notice was very fact specific. It clearly provided respondent with notice of the reasons why petitioner wants to occupy the subject unit, and of the grounds on which petitioner intends to rely in proving its case.

Included in these facts is the assertion that petitioner, Arthur Kokot, is the owner of the building in which the subject premises is located, that Kokot intends in good faith to occupy the apartment for use and occupancy as his primary residence in the City of New York. The notice states that Kokot intends to recover the apartment to be combined with apartment 4E which has already been recovered by the owner, as well apartment 5E which the owner intends to seek, and possibly other contiguous apartments in the building as they become available, but not more than four apartments in total to be combined into a single residential unit. The notice states that Kokot has retained an architect to develop plans to combine the apartments to use as his primary residence. The notice states that Kokot presently rents and resides in a non-rent regulated apartment and he wants to relocate into the combined apartment to have more space for himself and his minor children.

Respondent argues that the notice does not sufficiently state the facts supporting petitioner's ground for eviction, that it does not state the names and ages of his minor children, that it states that an architect has been retained but does not state details of plans nor are architectural plans attached. Respondent argues that the notice of non-renewal states that petitioner wants to relocate into the combined apartment to have more space for himself and his minor children, but that petitioner represented in another proceeding that his two daughters live with him only approximately forty percent of the time and that petitioner has not shown that his children will be residing there as their primary residence. Respondent argues that each of the apartments sought contain three bedrooms, that it is unimaginable that petitioner can argue in "good faith" that he requires a nine to twelve room apartment for himself and his two children, of whom he only has limited custody. Respondent asserts that petitioner's Motor Vehicle Registration shows his address at both 270 West End Avenue and [*4]280 West End Avenue, NY, NY, and that petitioner recently purchased a two story, two family property in Astoria, New York. Respondent argues that even if all of petitioner's allegations are true, they do not establish that petitioner is in good faith and that respondent's motion for summary judgment should be granted

Petitioner responds that petitioner lives in a two bedroom apartment at 280 West End Avenue, NY, NY. Petitioner asserts that the 270 West End Avenue address is the apartment in which he formerly resided with his ex-wife, and that he gave up all rights to that apartment in the divorce settlement, and that the Astoria house is an investment property. Petitioner asserts that his children have to share a bedroom when they stay with him four out of every ten days in his current apartment which costs him $4,200 per month rent. He asserts that he wishes to gut the units sought at the subject premises, each of which is long and narrow, and convert them into a single apartment of about 2300 square feet, to create a three bedroom, three bathroom apartment with a living room/family room and kitchen. Petitioner asserts that this which will be bigger than the approximately 1800 square foot apartment in which he currently resides and will provide a home environment for his children when they are with him approximately 40% of the time, more like the comfort and space his children are used to in their mother's apartment. Petitioner asserts that the non-renewal notice does not state that his children will reside in the new apartment as their primary residence, but only that petitioner will occupy the unit as his primary residence, and that his childrens' occupancy of the premises will be wholly consistent with petitioner's partial custody under his divorce settlement. Petitioner asserts that the facts alleged do not show a lack of good faith, but the contrary, and that the issue of good faith must be resolved at trial.

Unlike the notice of non-renewal in Haruvi v Rosen, 10 Misc 3d 137(A), 2005 Slip Op 52161U (App Term, 1st Dept), the Notice herein states the reasons why the petitioner wishes to recover respondent's apartment. Certainly, petitioner has the burden of proving the above facts at trial, but the notice clearly specifies who will reside in the subject premises and why petitioner has a desire to do so (among other things, he is paying rent for a non regulated apartment in another building and wishes to construct a new combined apartment in his own building with sufficient space to comfortably house himself and his children when they stay with him.) The notice does not merely track the statutory language, it [*5]clearly states reasons why the petitioner seeks the apartment. Such allegations, if true, clearly state facts sufficient to constitute a cause of action.

It is not required that the notice state details such as the names and ages of petitioner's children, or that architectural plans of the alleged combination of apartments be attached. These are evidentiary details which may be obtained in discovery.

Given the current state of appellate authority regarding predicate notices in summary holdover proceedings, it appears that the notice of non-renewal which forms the predicate for the petition herein is facially sufficient.

Respondent argues that each of the six statements in the notice, if taken individually, do not state sufficient facts to support the predicate notice. However, although some of the individual paragraphs in the notice might simply track the statute, other paragraphs provide facts which are specific to this proceedings, and which state the facts regarding why petitioner wants the premises for his own use. The Court must evaluate all of the statements in the notice together to determine whether the notice contains sufficient facts to support the notice.

Respondent argues that the notice is vague and ambiguous because it does not definitively state which apartments petitioner intends to combine or provide architectural details or plans. However, contrary to respondent's claim, the notice is not vague about whether petitioner intends to use the subject unit as part of the combined apartment which will be his primary residence. Rather the notice refers to "possibly other contiguous apartments" which may be combined as part of the new apartment. The purpose of the notice is not required to provide the details of its plans to create a new apartment. Such details are rather part of the case which petitioner must prove at trial.

In Leon v Martinez, 84 NY2d 83, 87-88 (1994), the Court of Appeals held that on a motion to dismiss, the facts as alleged in the pleading (here, the predicate notice) must be accepted as true, and the court must accord plaintiffs (here petitioners) the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory. Under this test, the Notice herein certainly states a cause of action, including sufficient facts and grounds (RSC §2524.2[b]), to support a claim for possession of a rent stabilized apartment by landlord who owns the building and expresses his desire to reside in the premises as his own [*6]primary residence (RSC §2524.4[a][3]).

Pursuant to CPLR 3212, a grant of summary judgment is permissible in cases where there is clearly no material and triable issue of fact presented. Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395 (1957); DiMenna & Sons v City of New York, 301 NY 118 (1950). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978), or where there is an issue which is arguable. Barrett v Jacobs, 255 NY 520 (1931).

In order to obtain summary judgment, the moving party must make a prima facie showing to the court that as a matter of law it is entitled to judgment in its favor. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 (1979); CPLR 3212 (b). To defeat a motion for summary judgment, the opposing party must show sufficient facts to require a trial on any issue. DiSabato v Soffes, 9 AD2d 297 (1st Dept. 1959). Both parties must lay bare their evidentiary proof in admissible form. Friends of Animals v Associated Fur Mfrs., supra; Zuckerman v City of New York, 49 NY2d 557 (1980).

The role of the motion court is merely one of issue finding, not issue determination. Rose v Da ECIB USA, 259 AD2d 258 (1st Dept. 1999); Pirrelli v Long Island RR, 226 AD2d 166 (1st Dept. 1996). The court must view evidence in the light most favorable to the opposing party and draw all reasonable inferences in the opposing party's favor. Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dept. 1989).

For all of the above stated reasons, this Court finds the predicate notice of non-renewal herein to be entirely sufficient. It designates who plans to reside in the subject premises, why he wishes to reside there as his primary residence, and sufficient salient facts and reasons supporting these claims. Accordingly, respondent's motion for dismissal on the ground that the notice does not state facts sufficient to support the ground for eviction is denied.

Although there is no mention of "good faith" in the statute, Courts have read into the statute a "good faith intention" as a requisite element for the refusal to renew. "Good faith" is defined as "merely an intention and desire to gain possession of premises for one's own use." Matter of Rosenbluth v Finkelstein, 300 NY 405 (1950). The sole requirement is that the intent be actual and genuine, and not a guise merely to remove the tenant, and then shortly thereafter place the unit back on the rental market in order to obtain a higher rent. Sobel v Mauri, NYLJ Dec. 12, 1984 (App [*7]Term 1st Dept).

Here, respondent has not provided evidence establishing that petitioner is not in "good faith" in seeking possession of the subject unit. While respondent asserts that petitioner is not in good faith because he wants too many units, this is not the case. Rent Stabilization Code §2524.4(a)(3) as well as Rent Stabilization Law §26-511(c)(9)(b) clearly provide that "one or more" units may be recovered for an owner's personal use. The only limitation in RSC §2524.4(a)(3) is that recovery may only be sought by one individual owner of an ownership entity. Petitioner's notice has stated facts which comprise clear plausible reasons why petitioner wants to occupy the subject units and a clear plan for their use. The documentary evidence submitted by respondent in support of his motion does not establish that petitioner is not in good faith in seeking possession for petitioner's use, so as to warrant dismissal of the petition on motion pursuant to CPLR 3211 or 3212. While petitioner will be required to prove its case at trial, respondent has not shown petitioner has not alleged "good faith" as a matter of law.

The issue of petitioner's good faith is a factual one which is better resolved at trial. Cucin v Weitzner, NYLJ Feb 9, 1984, p 7, col 2, (App Term 1st Dept), 12 HCR 26A; Miller v Washburn, NYLJ May 8, 1985, p 14, col 2 (App Term 9th &10th Jud Dist.), 13 HCR 137C. Accordingly petitioner's motion seeking dismissal on the ground that petitioner has not alleged "good faith" is denied. Respondent's motion insofar as it seeks attorney's fees, costs and disbursements is denied without prejudice.

Petitioner cross-moves to strike respondent's first, second, third, fourth, sixth, and seventh affirmative defenses. Respondent's third affirmative defense alleges that the predicate notice fails to state sufficient facts to establish a basis for eviction. Petitioner's cross-motion is granted in this regard and respondent's third affirmative defense is dismissed for the reasons stated above.

Respondent's fourth and sixth affirmative defenses allege that the petition should be dismissed because petitioner does not seek in "good faith" to recover possession of the premises for the personal use and occupancy of the subject premises for himself and his children as their primary residence. Petitioner's cross-motion to dismiss respondent's fourth and sixth affirmative defenses is granted only to the extent that these defenses assert that the proceeding should be dismissed on the basis that petitioner does not seek possession for the occupancy by his children as [*8]their primary residence, and is otherwise denied.

Petitioner moves to strike respondent's first affirmative defense which alleges that the proceeding should be dismissed because the notice of petition and petition were not properly served on respondent in a manner required by law. Respondent's first affirmative defense alleges that:

upon information and belief, Petitioner did not serve a true copy of the petition and notice upon Keith Green by personal delivery, nor by delivery to a person of suitable age and discretion employed or residing at the premises who was willing to receive same, nor did Petitioner affix true copies of such Petition and notice to a conspicuous part of the premises subsequent to making reasonable application to make personal or substitute service on respondent.
Petitioner also failed to mail true copies of the notice of petition and petition to respondent by regular and certified mail at the addresses required by law.

Respondent's Affirmation in Opposition further argues that a reasonable application to effect personal or substituted service was not made prior to conspicuous place service of the notice of petition and petition. Respondent's attorney's affirmation states that the affidavit of service indicates that two attempts to serve by personal or substituted service were not made at times when service would be likely to succeed, that, although petitioner was aware that respondent is a professional musician and typically works during evening hours, one of the two attempts at service was made on October 11, 2006 at 9:07PM,

It is well established that a reasonable attempt to effectuate personal or substituted service in a summary proceeding is required prior to effectuating conspicuous place service. In a summary landlord and tenant proceeding a single attempt to effectuate personal or substituted service during normal working hours was held not sufficient. Eight Associates v. Hynes, 102 AD2d 746 (1st Dept, 1984), aff'd, 65 NY2d 739 (1985). The courts have held that a "reasonable application" entails at least two attempts at personal or substituted service before conspicuous place service is permissible. NY State Housing Finance v Fawcett, NYLJ, Dec 19, 1984, p19, col 5 (Civ Ct, NY Co). The Court held that if the first attempt occurred during normal working hours, the second had to occur before or after the usual Monday through Friday work schedule. See also [*9]Metropolitan Life Insurance Co v Scharpf, 124 Misc 2d 1096 (Civ Ct, NY Co 1984); 1199 Housing Corporation v Griffin,136 Misc 2d 689 (Civ Ct, NY Co, 1987).

In the case at bar the affidavit of service states that two attempts at personal or substituted service were made on weekdays, at 11:52 AM and 9:07 PM. This satisfies the standard requiring that one attempt be made during regular business hours and one attempt be made outside regular business hours. That respondent works outside normal business hours or whether petitioner had knowledge of this is of no consequence as the standard is reasonably designed to effectuate service on both persons who work during ordinary business hours and those who work outside regular business hours.

Respondent also argues that a "reasonable application" was not made because the affidavit of service states that the process server made his second attempt between 11:51 AM and 11:52 AM, and that the courts have held that a "single minute" is not sufficient time to permit the recipient to respond to the process server. However, as petitioner correctly points out, the time frame stated in the affidavit of service refers to the time when the papers were posted on the front and rear door, not the amount of time the process server waited after knocking on the door or ringing the bell. Thus respondent has not shown that the affidavit of service is defective.

It is well settled that a conclusory allegation in an answer that proper service was not made is not sufficient to rebut the facts set forth in an affidavit of service. Clarkson Arms v Arabitz, NYLJ July 3, 1991, p 23 col 5, 19 HCR 424B (App Term 1st Dept, 1991); 335 West 38th Street Coop Corp v Anchev, NYLJ Dec. 17, 1997, p 21, col 3, 25 HCR 353A (App Term 1st Dept, 1996).

Here respondent's first affirmative defense merely reiterates the language of the statute and states that service was not effectuated in accordance with law. Respondent's affidavit in opposition does not make any specific factual allegation regarding service but merely makes meritless arguments as to why service was not legal. Respondent does not state whether he was home when the service attempts were made, or whether he received copies of the notice and petition affixed to his door in the mail. This is not sufficient to rebut the affidavit service or to require a hearing. Accordingly, petitioner's cross-motion to dismiss respondent's first affirmative defense is granted.

Respondent also challenges service of the predicate notice for the [*10]first time in response to petitioner's cross-motion. Respondent claims that service of the predicate notice was defective because the affidavit of service does not state that the server is an attorney or a licensed process server, and fails to provide the process server's license number. Even if this defense was timely raised, it is meritless, as there is no requirement that the predicate notice be served by a licensed process server. This requirement only applies to service of pleadings.

Petitioner moves to strike respondent's second affirmative defense which alleges that petitioner fails to comply with RPAPL §741(1) in that it fails to accurately allege petitioner's interest in the premises sought to be recovered. Respondent's second affirmative defense alleges that in July 2004 respondent entered into a renewal lease agreement with Jordon Cooper & Associates, that respondent has never entered into a lease agreement with petitioner, and that petitioner is defective in that it names petitioner-landlord as Arthur Kokot. Petitioner replies that petitioner is the owner of the building and the fact that the lease renewal was entered into with petitioner's managing agent is irrelevant.

Pursuant to RSC §2524.4 an owner is entitled to seek to recover possession for such owner's personal use and occupancy. The fact that the tenant's renewal lease was renewed by the owner's agent is irrelevant and does not constitute a waiver of the owner's right to seek possession under §2524.4. Accordingly respondent's second affirmative defense is entirely lacking in merit. Petitioner's cross-motion to strike respondent's second affirmative defense is therefore granted.

Respondent's seventh affirmative defense alleges that petitioner accepted and did not expeditiously return respondent's October, 2006 rent check, which was for rent due after respondent's lease expired, and that the petitioner's acceptance of the rent check as a matter of law, vitiated any prior notice of termination and reaffirms the landlord-tenant relationship.

Petitioner counters that it expeditiously returned respondent's rent check by letter dated October 11, 2006, a copy of which is attached to petitioner's motion papers, which states that petitioner is not accepting any payments as the matter is in litigation. Respondent, in opposition does not deny, but effectively admits, that his October, 2006 rent check was returned to him on October 11, 2006. Respondent argues that the return of his rent check was not expeditious and warrants dismissal of this proceeding. It is well established that a knowing acceptance of rent after service of a termination notice vitiates the notice. 205 East 78th Street [*11]Assoc. v Cassidy, 192 AD2d 479 (1st Dept, 1993), rev'g for reasons stated in dissent of Justice McCooe at the Appellate Term, NYLJ Sept. 27, 1991, p 21, col 4 (1st Dept), 19 HCR 583. However, where the rent checks received from the tenant are not cashed and are returned expeditiously, this does not vitiate the notice or waive the right to maintain the proceeding. Tursi v. Anderson, NYLJ May 31, 2001, p 19, col 1, 29 HCR 268A (App Term, 1st Dept). Here the respondent's October 2006 rent check was not cashed by the owner but was returned to respondent on October 11, 2006. The check was expeditiously returned to the respondent and its retention for a short period of time does not vitiate the notice or waive the owner's right to maintain this proceeding. Accordingly respondent's seventh affirmative defense does not have merit. Petitioner's cross-motion to strike the seventh affirmative defense is therefore granted.

The matter is restored to the Part G calendar, on February 28, 2007, at 9:30 A.M. for all purposes. The foregoing constitutes the Decision and Order of this Court.

Dated: New York, New York___________________________

January 31, 2007PETER M. WENDT, J.H.C.

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