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Branic International Realty Corp., Petitioner-Respondent v. Phillip Pitt

April 16, 2013


The opinion of the court was delivered by: Clark, J., J.

Branic Intl. Realty Corp. v Pitt

Decided on April 16, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Richard T. Andrias,J.P. David Friedman Rolando T. Acosta Helen E. Freedman Darcel D. Clark, JJ.

Respondent Phillip Pitt appeals from an order of the Appellate Term of the Supreme Court, First Department, entered on or about December 22, 2010, which, to the extent appealed from, as limited by the briefs, reversed an order of the Civil Court, New York County (Gerald Lebovits, J.), entered on or about June 9, 2009, granting his motion for summary judgment dismissing the petition and denying petitioner's motion for summary judgment on its claim for possession, denied respondent's motion and granted petitioner's motion. West Side SRO Law Project, New York (Martha Weithman of counsel), and Manhattan Legal Services, New York (Jim Provost of counsel), for appellant. Rosenberg Calica & Birney LLP, Garden City (Ronald J. Rosenberg, Lesley A. Reardon and Diana Attner of counsel), for Branic International Realty Corp., respondent. CLARK, J.

In this appeal, the primary question is whether respondent Phillip Pitt was a "permanent tenant" as defined in Rent Stabilization Code (9 NYCRR) § 2520.6(j). We find that the record amply demonstrates that respondent "continuously resided" in a room within petitioner Branic International Realty Corp.'s (Branic) hotel for more than six months. Accordingly, respondent-appellant was a "permanent tenant," as defined by Rent Stabilization Code § 2520.6(j).

Branic is the owner of a single room occupancy (SRO) rent-stabilized hotel located at 216 West 103rd Street, New York, New York. In 2003, Branic and the New York City Human Resources Administration (HRA) entered into a written "memorandum of understanding" whereby HRA agreed to rent 134 rooms in Branic's hotel to house the homeless [FN1]. The agreement provides that HRA would refer "Eligible Persons," i.e. HRA clients in need of emergency housing and eligible for a public assistance shelter allowance, to the hotel. Eligible Persons with income over public assistance were obligated to contribute 30 percent of that income to the hotel. HRA agreed to pay a nightly rate of $65.00 for each Eligible Person occupying a hotel room.

In January 2003, HRA referred Phillip Pitt to Branic for housing under the agreement, and Pitt began residing in Room 214 on or about January 10, 2003. From January 2003 until April 2007, HRA paid the nightly rate of $65.00 on behalf of Pitt. By an April 2007 notice of "CANCELLATION/ROOM CLOSURE VERIFICATION (Emergency Facility)," HRA informed Branic that payments on Pitt's room would be stopped on April 17, 2007 because Pitt was no longer living there. HRA ceased paying for Pitt's room on or about April 17, 2007, but Pitt continued residing there without paying.

In June 2007, Branic commenced a licensee holdover proceeding in the Civil Court, New York County. Pitt answered and moved for summary judgment, arguing that he was entitled to dismissal of the proceeding because he was not a licensee but a "permanent tenant" under the Rent Stabilization Code (RSC). Branic cross-moved for summary judgment. By order dated June 9, 2009, the Civil Court granted Pitt's motion for summary judgment dismissing the holdover proceeding and denying Branic's motion for summary judgment. The court held that RSC (9 NYCRR) § 2520.6(j) categorizes Pitt as a permanent rent-stabilized tenant and protects him from eviction.

Branic moved to renew and reargue the order. The Civil Court denied the motion to renew and reargue by order dated December 3, 2009.

By order dated December 22, 2010, the Appellate Term reversed the Civil Court's orders, reinstated Branic's holdover petition and granted Branic summary judgment on the petition. Pitt moved to reargue in the Appellate Term or, in the alternative, for leave to appeal to this Court. On March 8, 2011, the Appellate Term denied Pitt's motion.

Pitt's motion to this Court for leave to appeal was granted on December 11, 2011. The Court also stayed Pitt's eviction on the condition that he paid all arrears ...

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