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April 25, 2000


The opinion of the court was delivered by: Stein, District Judge.


Plaintiff South Park Associates, L.L.C. has brought this action seeking a declaratory judgment that its tenant, defendant Josephine Renzulli, may be evicted from the apartments where she lives. The parties have each moved for summary judgment. For the reasons set forth below, the landlord's motion is denied and the tenant's motion is granted because plaintiff has not properly terminated the tenancy as required by New York law. That portion of defendant's motion that alleges that subject matter jurisdiction does not exist is denied.

I. Background

South Park is a Florida limited liability company whose principal place of business is in Florida and none of whose members is a citizen of New York. South Park owns the shares and proprietary lease for the cooperative apartments 11/12B & 12C at 230 Central Park South in New York City. Renzulli, currently 84 years old, has been residing in those apartments for more than 30 years and currently rents them from South Park. The apartments are subject to the New York City Rent Stabilization Law of 1969. Plaintiffs lawsuit seeks, among other matters, declaratory judgment that it may evict Renzulli and that the apartments are rent destabilized. In other words, the landlord believes the apartments are eligible to be rented at a "reasonable market rent," rather than the below market rent Renzulli currently pays pursuant to the Rent Stabilization Law.

In 1983, the building was converted to cooperative ownership under a non-eviction plan. Renzulli chose to remain as a rent stabilized tenant after the conversion of the apartments. This litigation is the latest in a series of lawsuits by her landlords against Renzulli seeking her eviction. Each suit prior to this one was dismissed by the courts. Renewal leases — each of which set the commencement date and the rent due date at the first of the month — were periodically sent to Renzulli, who signed and returned each of them. The last such lease expired in 1995. At that time, the landlord brought an eviction action instead of offering renewal leases. For several years — until the landlord's latest loss in court in 1999 — Renzulli was not offered renewal leases.

In May of 1999, the landlord sent Renzulli renewal leases; those leases changed the rent due dates and commencement dates to the 15th of the month. When Renzulli signed and returned them, she made two alterations to their terms. First, she changed the commencement and rent due dates to the beginning of the month — the same terms used in the earlier leases. Second, she eliminated three of the four charges related to air-conditioner use, claiming that she was being charged for four air-conditioners even though she had only one. The previous lease had contained the same four air-conditioner charges, but Renzulli claims that she did not know the charges covered four air conditioners. See Hazenberg Aff., Ex. E; Renzulli Aff., at ¶ 8.

As noted above, the parties have now each moved for summary judgment.

II. Discussion

A. Subject Matter Jurisdiction

Federal district courts have original jurisdiction over civil matters where the amount in controversy exceeds $75,000 and there is complete diversity of citizenship between the parties. See 28 U.S.C. § 1332 (a).

There is no dispute that complete diversity of citizenship exists in the present case. However, the tenant alleges that the $75,000 amount in controversy requirement has not been met, and the landlord responds that the apartment has a fair market value in excess of $1,000,000. See Rosefielde Aff. at ¶ 3.

Where a defendant disputes the existence of diversity jurisdiction based upon the amount in controversy, "it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). "The party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the amount in controversy," Lupe v. Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir. 1994); however, the burden is only to show a "reasonable probability' that the claim is in excess of the statutory .jurisdictional amount." Tongkook, 14 F.3d at 784.

Plaintiff alleges that the value of the apartment if vacant or rent destabilized would exceed $75,000. See Complaint, at ΒΆ 3. Renzulli does not deny this allegation, but rather contends that the amount in controversy requirement is not met because plaintiff is not seeking damages over $75,000, or alternatively, that plaintiff ...

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