35-09 LLC v. Navedo-Perez

201 N.Y.S.3d 904

35-09 LLC, Petitioner,

v.Stefan NAVEDO-PEREZ, et al., Respondents.

Index No. L&T 318560/22

Civil Court, City of New York, Queens County.

Decided on December 6, 2023

Counsel for Petitioner: Novick Edelstein Pomerantz P.C.

Counsel for Respondent: New York Legal Assistance Group

Logan J. Schiff, J.

In this holdover proceeding seeking possession of a rent-stabilized apartment, the enumerated ground for eviction is § 2524.3(c) of the Rent Stabilization Code ("RSC"), which authorizes an eviction where "[o]ccupancy of the housing accommodation by the tenant is illegal because of the requirements of law and the owner is subject to civil or criminal penalties therefor, or such occupancy is in violation of contracts with governmental agencies."

Petitioner contends that Respondent Stefan Navedo Perez's occupancy of the basement/cellar apartment is unlawful because "[t]he landlord retained an architect, who advised the landlord that the use of the apartment is illegal, and not approvable by the New York City Department of Buildings. The apartment cannot be legalized." Petitioner does not dispute that Respondent is the tenant of record in a housing accommodation within a rent-stabilized 14-unit building, nor does it allege that any governmental agency has issued a violation or imposed civil or criminal penalties based on Respondent's occupancy.

In moving for summary judgment, Respondent, who has lived in his apartment for over five years, cites to Appellate Term case law in the First Department concluding that a holdover under RSC § 2524.3 (c) must be predicated on proof of a governmental violation or other showing that the owner is "subject to criminal or civil penalties." Petitioner opposes the motion, arguing that the phrase "subject to" according to the dictionary definition includes "affected by the or possibly affected by [something]." Thus, according to Petitioner even the potential for civil penalties because of Respondent's use of the basement is a sufficient basis for an illegal occupancy holdover. Petitioner cross-moves for summary judgment, attaching a report from its architect, who states that "[w]ithout further code investigation, it is evident that this cellar apartment does not comply with the requirements of the MDL [Multiple Dwelling Law] and as such, this apartment cannot be legalized."

Contrary to Petitioner's interpretation of the Code, the Appellate Term in the First Department has repeatedly held that the plain meaning of the phrase "subject to civil or criminal penalties" in RSC § 2524.3(c) requires that the owner is "actually ‘subject to civil or criminal penalties.’ " ( 210 W. 94 LLC v. Concepcion , 2003 N.Y. Slip Op. 50612(U), 2003 WL 1873768 [App. Term, 1st Dept. 2003] ). Accordingly, where a governmental agency has not imposed a violation or otherwise sought criminal or civil penalties, an illegal occupancy holdover must be dismissed as premature (see id. ; JMW 75 LLC v. Wielaard, 47 Misc.3d 133(A), 2015 WL 1566080 [App. Term, 1st Dept. 2015] ; 625 W. End, Inc. v. Howard, 2001 N.Y. Slip Op. 40496(U), 2001 WL 1682615 [App. Term, 1st Dept. 2001] ).

In the absence of a decision by the Second Department as to the conditions precedent for maintenance of a proceeding under RSC § 2524.3(c) (see 321 Bay Ridge Co. v. Cordova , 130 N.Y.S.3d 187 [App. Term 2d Dept., 2d, 11th & 13th Jud. Dists. 2020] ), Appellate Term decisions in the First Department, while not binding on this court, are entitled to "great deference" ( People v. Pena , 36 N.Y.3d 978 at fn.4, 139 N.Y.S.3d 70, 163 N.E.3d 1 [2020] [Wilson, J. dissenting], quoting People v. Pestana , 195 Misc.2d 833, 839, 762 N.Y.S.2d 786 [Crim. Ct., N.Y. Co. 2003] ). One such holding, 625 W. End, Inc. v. Howard , is particularly apropos, as it concluded, in dismissing an illegal occupancy holdover seeking recovery of an unpermitted basement space due in part to the lack of a governmental violation, that:

[A]ny violation of the Multiple Dwelling Law with respect to occupancy of the basement is not a basis for eviction in the absence of any application to the Department for a permit or the Department's rejection of plans for legalization (see, Sima Realty

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