Sam & Joseph Sasson LLC v. Guy

2018 NY Slip Op 33231(U)

SAM AND JOSEPH SASSON LLC, Petitioner, v. CORINTHIANS GUY and PENNY GUY, Respondent.

Index No. 77516/2016

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART N

December 14, 2018

DECISION/ORDER

Present: Hon. Jack Stoller Judge, Housing Court

Sam and Joseph Sasson LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Corinthians Guy ("Respondent"), a respondent in this proceeding, and Penny Guy ("Co-Respondent"), another respondent in this proceeding (collectively, "Respondents"), seeking possession of 110 West 14^th Street, Apt. 2, New York, New York ("the subject premises"), on the ground of breach of a substantial obligation of their tenancy, to wit, that Respondents engaged in illegal alterations of the subject premises and use of the subject premises for a karate school in derogation of, inter alia, the Zoning Resolution. Respondents interposed an answer containing a defense that Petitioner knew about the alterations, that Petitioner waived an objection to the alterations, and that Petitioner interfered with an ability to cure. The Court held a trial of this matter on September 25, 2017, November 6, 2017, February 1, 2018, February 6, 2018, March 15, 2018, March 19, 2018, April 13, 2018, May 2, 2018, May 3, 2018, May 21, 2018, and August 2, 2018 and adjourned the matter for submissions, ultimately to November 20, 2018. The trial

Petitioner proved that it is the proper party to commence this proceeding and that the subject premises is subject to the Rent Stabilization Law. Petitioner effectuated service of a notice to cure dated August 23, 2016 ("the notice to cure") on Respondents stating that Respondents engaged in illegal alterations and that Respondents used the subject premises for commercial use in violation of, inter alia, the Zoning Resolution. Petitioner then effectuated service of a notice of termination dated September 9, 2016 ("the notice of termination"). The Court refers to the notice to cure and the notice of termination, collectively, as "the predicate notices."

Petitioner introduced into evidence a letter of no objection ("the letter of no objection") from the New York City Department of Buildings ("DOB") indicating that a certificate of occupancy ("C of O") dated January 10, 1994 for the building in which the subject premises is located ("the Building") shows that the subject premises is a class A apartment.¹ The letter of no objection does not address a karate school at the subject premises. Petitioner also introduced into evidence a C of O effective May 14, 2014 showing the same information and also showing that the subject premises has been an interim multiple dwelling subject to MDL Article 7C ("the Loft Law"), and that the zoning use group applicable to the subject premises is use group two.²

Petitioner introduced into evidence a lease dated 2003 ("the Rent-Stabilized lease") between Respondents and Petitioner's predecessor-in-interest ("the prior owner"). The leasestates that the subject premises is for living purposes only, that Respondents require the prior owner's written permission for alterations, and that Respondents must comply with all applicable laws and regulations.

Petitioner and Respondent both introduced into evidence floor plans (collectively, "the floor plans") on file with DOB. One of them ("Respondent's floor plan") designates part of the subject premises as having a karate school and one of them ("Petitioner's floor plan") does not.

The prior owner's son ("the member") testified that he is a member of the LLC that is Petitioner; that the prior owner, had also been a member; that he has been involved with day-to-day management of the Building on a full-time basis since 2009; that he knows the subject premises; that, without Petitioner's permission or permission of the prior owner, Respondents subdivided the subject premises into four rooms with walls that are movable, which are not reflected in approved DOB-filed plans for the subject premises and which he saw for the first time around the end of November or mid-December of 2015; that there is an electrical subpanel in the subject premises that Petitioner did not install; that the only part of the subject premises he had previously seen for over ten years was a karate school that Respondents have been operating; and that Petitioner did not give permission for that use.

The member testified on cross-examination that he does not know when partition walls were put up; that he is unaware of any previous electrical problems in the subject premises; that his family took over the Building in 1986; that he helped the prior owner with books and records before 2014; that he lived in the Building since 2007; that he did not see the subpanel until August of 2016; that, before December of 2015, when he first saw the partitions, he was only in the part of the subject premises where the karate school was; that he had seen the karate studiomore than ten, but less than fifteen times previously, at some point before 2014, possibly as far back as 1994, 1997, or 2005, he did not remember; that the prior owner died during the pendency of this proceeding, on August 22, 2017; that the prior owner had maintained a store on the first floor of the Building; that, by 2016, the store had been closed; that he sends an exterminator once a month to the subject premises; that he does not enter the subject premises with the exterminator; and that he does not remember inspecting the subject premises with the prior owner on September 25, 2008.

Respondent introduced into evidence a violation that the Loft Board placed on the subject premises on October 22, 1997 for defective outlets throughout the north room of the subject premises and a narrative of work necessary for the legalization of the subject premises as per the Loft Law which included a remedy for inadequate electrical distribution throughout the subject premises. Respondent also introduced into evidence an open application at DOB for electrical work needing to be done in the subject premises in 1998. The member testified on cross-examination that he did not know of electrical work done on behalf of the owner from 1998 through 2016.

Respondent introduced into evidence a Loft Board Order indicating that the prior owner had testified at a hearing of the Office of Administrative Trials and Hearings ("OATH") held in January of 1988 that if Respondent agreed to fix something, the prior owner would pay Respondent for that work.

Respondent introduced into evidence a stipulation dated August 30, 1994 from a prior summary proceeding between another predecessor-in-interest of Petitioner and Respondent, captioned at 110 W. 14^th St Rlty. Co. Inc. v. Guy, Index # L/T 80965/1994 (Civ. Ct. N.Y. Co.),which provided that arrears at the time were $13,781, that the landlord at the time gave Respondent a rent credit of $10,000, and that Respondent would do a fairly extensive amount of work and repairs at his own cost and expense at the subject premises.

Respondent introduced into evidence a holdover petition commenced against Respondents, captioned at 110 West Realty Corp. v. Guy, Index # L/T 64562/1996 (Civ. Ct. N.Y. Co.) verified on January 26, 1996, alleging that Respondents were in violation of a substantial obligation of their tenancy by operating a karate school.

The Court granted Petitioner's application to qualify its next witness, an architect ("Petitioner's first expert witness") as an expert. Petitioner's first expert witness testified that the C of O is the last word on the permissible use of the subject premises; that use of the subject premises as a karate school is not permissible; that the floor plans appear to be the same, save for the distinction between the two regarding the designation of the karate school; that there should have been an indication in Respondent's floor plan, marked by a bubble, showing an alteration of a previously-approved plan; that the floor plans were both amended on September 25, 1992; that the floor plans are secondary to the C of O; that a karate school is typically a physical culture establishment as per the Building Code and the Zoning Resolution, requiring approval from DOB and the Bureau of Standards and Appeals ("BSA"); that a classification known as a "home occupation" are typically permissible for use consistent with residential use, such as child care, an architect's office, or a home office; that a karate school would not be appropriate for a home occupation because of noise, about which zoning is explicit; that partition walls after the date of the floor plans would constitutes construction without a permit; that windowless rooms are not allowed under the Code; that the partition walls created rooms without light or air; and thatsubject premises is in zone "C6-2a."

Petitioner's first expert witness testified on cross-examination that a karate school would not have been a non-conforming use in 1974 because it would have been a conforming use, as the Building was a commercial building; that it would have been a conforming use in 1978; that a special permit could be required for a physical culture establishment; that if a windowless room is only used as a closet that it needs to appear as a closet to an inspector and on the plans; and that the current configuration of the windowless room cannot be a closet because of its size.

Respondent introduced into evidence Loft Board plans for the subject premises, which refer to a karate school. Petitioner's first expert witness testified on cross-examination that the DOB does not necessarily approve what the Loft Board approved.

Petitioner's first expert witness testified on redirect examination that the Loft Board plans do not indicate anything about a home occupation, meaning that the karate school is not permitted; and that the issuance of the C of O in 1994 eliminated any other uses for the subject premises besides what was shown...