Adam Leitman Bailey, P.C. Wins Summary Judgment and Dismissal of Prior Owner’s Affirmative Defenses in Highly Contested Post-Foreclosure Eviction Proceeding
CIVL COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS HOUSING PART SPP x AVAIL I LLC, Petitioner Landlord, rNDEX # 309765t22 -againstDECISION / ORDER MICHAEL ILONZE AND MODUPE OYENUGA, Respondent x Present: Kimon C. Thermos, JHC Recitation, as required by CPLR 2219(a), of the papers considered in the review of the instant moving papers. Papers Numbered Notice of motion, Affidavits and exhibits(NYSCEF#(7-18)………………1 Affidavit and Affirmation in Opposition (NYSCEF #(19-20)…………….2 Affidavit in Reply (NYSCEF#(21-27)…………….3 Vladimir Mironenko, Esq., Adam Leitman Bailey, P.C. Marisa Imazu, Esq., New York Legal Assistance Group
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows This post-foreclosure holdover proceeding is predicated upon a l0-day notice to quit under RPAPL 713(5). Petitioner seeks to recover possession against inter alia the former foreclosed owners of the premises who remain in possession.
The sole appearing Respondent Michael Ilonze is represented and interposed a written answer containing several defenses. Respondent’s first and second affirmative defenses allege that Petitioner misdescribed the premises. Respondent’s third and fourth affirmative defenses allege defects in Petitioner’s service of the petition. Respondents fifth through eleventh affirmative defenses (and 1’t counterclaim) allege that the premises are a defacto multiple dwelling containing more than six dwelling units thus protecting Respondent from eviction under the rent stabilization law. Finally, Respondent’s twelfth affirmative defenses alleges that use and occupancy is not collectible because the existence of a defacto illegal multiple dwelling bars its recovery. Petitioner moves for an order granting summary judgment of possession pursuant to CPLR 3212 and RPAPL 409(b) and striking Respondent’s affirmative defenses and the counterclaim as lacking merit pursuant to CPLR 321 I (b) and, in the altenative, for an order awarding use and occupancy to be paid pendente Lite. Respondent opposes the motion by arguing that the defenses raised in their answer are meritorious and so should not be stricken and moreover that the answer raises several issues of fact that require a trial. Moreover, Respondent claims that its defacto multiple dwelling defense should bar the recovery of any use and occupancy pendente lite. Lastly Respondent now attempts to also assert new defenses not found in the answer first that there is a tenancy at will between the parties either because Respondent paid consideration to an undisclosed individual prior to the commencement of this proceeding or because Petitioner’s purported delay in commencing this proceeding vested Respondent with tenancy rights, and second to expand the grounds for contesting service of the petition. CPLR 3211(b) provides: “A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. When moving to dismiss defenses pursuant to CPLR 3211(b), petitioner bears the burden of demonstrating that the defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case or fail to state a defense. Shahv. Mitra,171 Ad.3d 971,974(App. Div., 2’d Dept.2019). The court must liberally construe the pleadings in favor of the party asserting the defense and give the party the benefit of every reasonable inference. Fireman’s Fund Ins. Co. v. Forrell,57 Ad.3d 721 (App. Div.,2nd Dept.2008).
CPLR 3211(b) striking third and fourth defenses
Respondent’s third affirmative defense asserts that the Court lacks personal jurisdiction as a matter of law because the Petition was not served within the window period provided in RPAPL 733. However, it appears that Respondent is relying on the version ofRPAPL 733 before the enactment ofthe HSTPA effective in June 2019. The service of the Petition in this matter was filed after the statute’s effective date. The amended version of RPAPL 733(1) provides that’1he notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard. The affidavits of service indicate that service was completed thirteen days prior to the first court date, so there is no defect in service under RPAPL 733(1). Respondent does not oppose this branch of Petitioner’s motion. Accordingly, the third affirmative defense is stricken. Respondent’s fourth affirmative defense challenges the propriety of service by contesting only the mailings made as required by RPAPL 735 upon the affixing of the papers after a reasonable application failed to yield personal delivery. Specifically, Respondent asserts that the mailings were done at an address different from the premises sought to be recovered. Respondent’s argument that this was the sole mailing made is incorrect. The affidavits of service clearly indicate that the Petition was mailed to the premises sought to be recovered by certified and regular mail and additionally at other addresses where Petitioner determined Respondent might be residing. Respondent’s opposition continues to ignore this fact and attempts to interject a new challenge to the service attempts at the premises which was not raised in the answer and which Respondent has not cross-moved to amend and therefore cannot be considered. RPAPL 735(tXa) provides that mailings should be sent to “…the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information. . . ” Clearly, the statute authorizes additional mailings at other addresses if the Respondent may be residing elsewhere. Respondent’s protestation that he has no connection to the other addresses does not matter. These were done in addition to the mailings made at the subject premises where Respondent claims to live. Accordingly, this defense as stated also lacks merit and is stricken.
CPLR 3211 (b) striking of the first and second affirmative defenses
Respondent’s first and second defense challenge the propriety of the petition and notice to quit on the same ground that they misdescribe the premises sought to be recovered. RPAPL 741 (3) requires that the petition “describe the premises from which removal is sought.” The petition must accurately describe the location of the premises in sufficient detail to allow a marshal executing a warrant to locate the premise in issue and effect an eviction without additional information See Clarkv. Wallace Oil Co.,284 A.D.2d 492 (App. Div.,2nd Dept. 2001); Hofgur LLC v. Klubek,2020 NYLJ Lexis 1783 (Civ Ct., Qns Cty 2020); Sixth St. Community Ctr, Inc. v. Episcopal Social Services, 867 N.Y.S.2d 20 (Civ Ct, NY Cty. 2008). Respondent alleges that since 2018 he resides in and occupies only one room of the entire house and that several other unidentified individuals occupy other portions of the house. So, Respondent argues that since he does not possess the majority of the house the petition’s description of the premises is fatally defective. There is no dispute that Respondent was the former foreclosed owner of the premises. Respondent’s opposition does not specify the identity of these other purported individuals or how they came into possession if he was not the one who placed them there. As Petitioner argues, even if Respondent does not have physical possession of the remainder of the house he is in constructive possession since he was the former owner and these other occupants were inexorably his tenants or licensees since Respondent provides no information on the occupants’ identities, if they actually exist, or how they came to occupy the remainder of the house. Accordingly, these two affirmative defenses are also lacking in merit, and are stricken.
CPLR 3211(b) striking of the fifth through eleventh affirmative defenses and counterclaim
Next, Petitioner seeks to strike Respondent’s fifth, sixth, Seventh, eighth, ninth, tenth, and eleventh affirmative defenses and the related counterclaim which collectively are based upon the ground that the premises are subject to the rent stabilization law since the building which was erected before 1974 is comprised of7 dwelling units thus ostensibly bringing it into the statute’s ambit. Based upon this premise the defenses raise multiple reasons why the termination notice is defective in that it cannot serve to terminate Respondent’s purported rent-stabilized tenancy and that the apartment was not registered with DHCR. Incredibly, Respondent is invoking the protections of the rent stabilization law even though Respondent was the former owner of the premises and was never a tenant. Again, Respondent does not show any evidence of the purported carving up of the house into 7 dwelling units or any proof that he acquired rent stabilized status after the foreclosure sale other than his allegation of making one unproven payment to a phantom individual who appeared and claimed to be the owner even before the auction took place which meant that respondent was still the owner at that time. Nevertheless, even if there are 7 occupied dwelling units, his possession of the premises never came into existence as a rent-paying tenant but rather as the former owner who is now foreclosed therefore no rent stabilization rights could inure. See Tri-Land Props, Inc., v. I I 5 W. 28th St. Corp., 267 A. D. 2d 142 (1’t Dept. 1999). Neither the answer nor the affidavit in opposition addresses this issue. Accordingly, these collective affirmative defenses and the counterclaim are stricken.
With regard to the striking of the remaining portion of the answer as it relates to the existence of a defacto multiple dwelling and the impact that may have on Petitioner’s claim in this motion for use and occupancy pendent lite the Court need not address this issue at this time in light of the granting of that branch of Petitioner’s motion seeking summary judgment of possession and permitting the issuance of a warrant forthwith as indicated below in addressing the first branch ofPetitioner’s motion, which will serve to terminate the proceedings in this matter. Even if the premises are a defacto multiple dwelling, despite the fact that the NYC Buildings Department classifies the premises as a one-family dwelling, it was indisputably created by Respondent as the former owner and the only one in complete control and possession of the premises. It would be inequitable for Respondent to gain a benefit from a condition he created and has inexorably benefitted from, by not allowing Petitioner to claim the fair value use and occupancy for the entire single-family dwelling from Respondent who is still in possession even after being foreclosed 3 years ago.
Summary judgment CPLR 3212 and 409(b)
In order to prevail on a motion for summary judgment, the moving party must eliminate any triable issues of fact. Andre v. Pomeroy,3 5 NY2d 361 (197 4); Doize v. Holiday Inn Ronkonkoma,6 Ad3d 573 (App. Div.,2nd Dept.2004). The movant has the initial burden of proving entitlement to summary judgment and upon such proof, the opposing party must show facts sufficient to require a trial of a material fact. llinegrad v. New York Univ. Med. Center, 64 NY2d85l (1985) citing Zuckrman v. Cfty of New York,49NY2d 557 (1980). When the existence of a triable issue “is even debatable, summary judgment should be denied.” Ochoa v. llalton Management, LLC,866 N.Y.S.2d 93 (Supreme Ct, Bronx Cty 2008) citing Stone v. Goodson, S N.Y.2d 8 (1960). Upon examining Petitioner’s documents as exhibited to the motion and upon reading the affidavit in support sworn to by Elonna Ashurova Petitioner’s director of asset management and the opposition to the motion submitted by Respondent and in light of the striking of the majority of Respondent Ilonze’s answer, it is clear that there is no issue of fact left with regard to whether Petitioner is entitled to recover possession of the subject premises form Respondent Michael Ilonze, the answering Respondent. Moreover, Respondent’s attempt to introduce a new defense to wit asserting that a tenancy at will was created by Petitioner’s acquiescence in bringing the instant proceeding is not raised in the original answer and without cross-moving to amend its responsive pleadings is also improperly raised in opposition and therefore cannot be countenanced. Notwithstanding, even if properly raised, this defense is also unavailing as bellied by the prior history between the parties since Respondent disingenuously fails to acknowledge that a prior proceeding was commenced and litigated but which was discontinued by Petitioner’s prior counsel and ignores Petitioner’s other attempt to obtain possession, although not successful, through an application for a writ of assistance in the foreclosure proceeding.
Conclusion
Accordingly, Petitioner’s motion seeking to strike Respondent’s answer is granted in part striking Respondent’s first through eleventh affirmative defenses and the counterclaim. The remaining portion of the branch of the motion seeking to strike the twelfth affirmative defense is denied as moot without prejudice to renew if the matter continues to be litigated. Petitioner’s branch of the motion seeking summary judgment on the issue of entitlement to possession is granted but only against Respondent Michael Ilonze. Petitioner is awarded a judgment of possession against Michael Ilonze. The warrant of eviction may issue forthwith, execution stayed l0 days. EED is April 21, 2023. The matter shall appear on the calendar for an inquest against Respondent Modupe Oyenuga to be held on June 8,2023 at 9:30am, since he has not appeared and the instant motion seeking summary judgment was not served upon him. Petitioner should promptly notify the clerk if they intend not to proceed to an inquest as to Modupe Oyenuga.
This constitutes the Decision and Order of the Court Dated: April 13,2023 Queens, New York .;.-1. Hon. Kimon C. Thermos, JHC