This decision has been referenced in a table in the New York Supplement.
Rose & Rose, By: Todd A. Rose, Esq., New York, Attorneys for Petitioner.
Sokolski & Zekaria, PC By: Robert E. Sokolski, Esq., New York, Attorneys for Respondent.
SABRINA B. KRAUS, J.
NORFOLK DEVELOPMENT LLC
(Petitioner) commenced this summary holdover proceeding to recover possession of 106 Norfolk Street, Apartment 25, New York, N.Y. 10002 (Subject Premises) on the grounds that ELIZABETH KEE (Respondent) does not occupy the Subject Premises as her primary residence. Respondent served a verified answer which asserted a general denial and affirmative defenses.
The proceeding was initially returnable in Part H on June 30, 2006. Respondent appeared by counsel (Charles H. Smalls Esq) on said date and filed a written answer, asserting four affirmative defenses, based on procedural defects, and a counterclaim for attorneys' fees. Petitioner was originally represented by Feldman Rosman.
On August 29, 2006, Petitioner moved for discovery. On October 6, 2006, Respondent cross-moved for summary judgment on her fourth affirmative defense, which was based on a claim that Petitioner accepted rent from Respondent after the expiration of the lease and prior to the commencement of the proceeding. On November 21, 2006, the parties entered into a stipulation resolving Petitioner's motion for discovery and withdrawing Respondent's cross-motion. The stipulation provided that the underlying lease between the parties provides for attorneys' fees, and the proceeding was marked off calendar pending the completion of discovery.
Respondent's deposition was held on January 25, 2007.
Petitioner moved for relief pursuant to CPLR § 3126 on August 24, 2007, and Respondent cross-moved for summary judgment. On September 26, 2007, the court (McClanahan, J.) issued a conditional order granting Petitioner's motion and denied Respondent's cross-motion without prejudice " as short-served and incomplete." The proceeding remained off calendar.
On January 31, 2008, Petitioner made a second motion for relief pursuant to CPLR § 3126, the court (Cohen, J.) denied the motion finding that Respondent had substantially complied with her discovery obligations.
On February 26, 2008, Respondent again moved for summary judgment. On June 26, 2008, the court (Cohen, J) issued an order granting summary judgment to Respondent and dismissing the proceeding finding that Petitioner had failed to submit admissible evidence contradicting Respondent's showing that she had maintained the Subject Premises as her primary residence during the period in question. The court dismissed the petition and Petitioner appealed. Petitioner retained new counsel for the appeal and the rest of this proceeding.
On August 14, 2008, Respondent moved for attorneys' fees. On September 15, 2008, the parties stipulated to mark the motion off calendar pending Petitioner's request for a stay at the Appellate Term.
On May 5, 2009, the Appellate Term issued a decision (23 Misc.3d 136[A] ) reversing Judge Cohen's grant of summary judgment and the dismissal of the petition. The Appellate Term held:
This nonprimary residence holdover proceeding is not susceptible to summary dismissal, since there exist material questions of fact as to the nature and extent of tenant's presence at and usage of the subject Norfolk Street apartment and a Duane Street apartment allegedly leased by her (now former) boyfriend. The record, including tenant's own deposition testimony and supporting affidavit, reveals that, during the two-year period referenced in the petition, tenant spent, at a minimum, three days a week at the Duane Street apartment, where she maintained a study space or " studio," and where she at times received her mail and kept her dog and its " stuff," and that tenant allowed a friend, respondent Stabile, to stay in the subject Norfolk Street apartment at least occasionally." The evidence thus failed to establish as a matter of law that tenant maintained her primary residence at the Norfolk Street apartment, and the drastic remedy of summary judgment was unwarranted.
On June 30, 2009, Petitioner moved for an order restoring the proceeding to the calendar and for related relief. Respondent failed to appear and the court (Fitzpatrick, J) granted the motion to the extent of setting the matter down for an inquest on July 16, 2009.
On July 15, 2009, Respondents's motion to vacate the default was granted and the proceeding was marked off calendar for completion of additional discovery. On November 12, 2009, Respondent moved to restore the proceeding to the calendar for an immediate trial, and Petitioner cross-moved for relief pursuant to CPLR § 3126. On December 16, 2009, the parties entered into a stipulation, pursuant to which Respondent withdrew her motion and granting Petitioner's cross-motion to the extent of Respondent's agreement to provide Petitioner with authorizations for document production and granting Petitioner's request to depose Michael Tuscano.
In July 2010, Tuscano retained counsel who advised Petitioner he would not appear absent a court order requiring him to do so. On January 7, 2011, Petitioner moved for a court order requiring Tuscano to appear for a deposition. On March 18, 2011, the court (Stanley, J) denied the motion and set the matter down for a trial on April 26, 2011. On April 26, 2011, the matter was assigned to Part R for trial. The trial did not commence on that date but was adjourned by the Trial Judge (Halperin, J) to May 24, 2011. The proceeding was adjourned in the trial part over the following dates: May 25, May 31, June 9, and September 12, 2011. For reasons that are not clear from the file, the trial does not appear to have started on any of these dates.
On September 14, 2011, Petitioner moved for an order quashing subpoenas served by Respondent on third parties. The motion was denied by the court (Halperin, J) as moot because Respondent agreed to withdraw all three subpoenas. Judge Halperin scheduled trial for October 17, 2011. On October 13, 2011, Petitioner again moved for an order to strike pursuant to CPLR § 3126, and on October 17, 2011, Petitioner moved for an order staying the trial pending determination of the motion. On November 14, 2011, Respondent cross-moved for sanctions.
On November 14, 2011, the court (Kraus, J) denied the motion for a stay and ordered that the trial would commence on November 21, 2011, and continue day to day until completed. On November 15, 2011 the court issued an order granting Petitioner's motion to the extent of precluding Respondent from offering into evidence any document which she had been ordered to produce and failed to do, and finding Respondent's notice to admit had been untimely and would not be considered at trial. The court denied the balance of the relief sought by Petitioner as well as Respondent's cross-motion for sanctions.
Both parties appealed this court's November 14, 2011 decision, and on December 13, 2011 the Appellate Term granted Petitioner's motion for a stay of the trial pending appeal ( 2011 N.Y. Slip Op 92300[U] ).
On February 9, 2012, Petitioner's motion to reargue the November 14, 2011 decision was denied by the court.
On March 7, 2012, Respondent's counsel moved for permission to withdraw before the Appellate Term. On March 8, 2012, the Appellate Term denied said motion ( 2012 N.Y. Slip Op 66699[U] ).
On May 10, 2012, the Appellate Term issued an order affirming this court's November 14, 2011 decision (35 Misc.3d 138[A] ), and on May 21, 2012, the court granted Respondent's motion to restore the case for trial and issued an order scheduling the trial for June 18 through June 21, 2012, and further directing that any additional motions were to be made prior to June 10, 2012.
On June 11, 2012, and after the Appellate Term had affirmed the court's November 14, 2011 decision, Respondent moved to reargue the court's November 14, 2011 decision. That motion was denied. There were several other motions regarding subpoenas that were made and addressed in June and July 2012.
On June 18, 2012, the trial commenced, Petitioner's application for a continuance was granted and the proceeding was adjourned to July 9th, 2012 for continued trial. On July 9, 2012, the court granted a motion to quash a subpoena served by Respondent on Petitioner's prior counsel, and the trial continued on July 10, 2012. On July 10, 2012, the court halted the trial to give counsel an opportunity to review what documents had been admitted into evidence and marked for identification, and adjourned the continued trial to July 12, 2012.
On July 12, 2012, one of Respondent's two attorneys submitted an order to show cause seeking to stay the trial " pending determination of medical examination as to whether respondent's attorney needs to withdraw out of medical necessity." The order to show cause was signed by the court and made returnable on July 17, 2012. The court granted the order to the extent of adjourning the trial to August 6th, 2013, to afford Respondent's non-impaired co-counsel an opportunity to come up to speed on the case and take over as lead counsel.
On July 26, 2012, Respondent pro se submitted an order to show cause seeking a mistrial, which was not signed by the court.
On August 1, 2013, Respondent obtained new counsel who made an application for a continuance. The application for a continuance was granted, per written order, which provided that any motions for additional relief were to be made prior to August 10, 2012, and adjourning the proceeding to said date for all purposes included scheduling the continued trial.
By August 7, 2012, Respondent's newly retained counsel had advised that no further motions were going to be made, and the court scheduled continued trial for September 12, 2012. The trial continued in the afternoon of September 12, 2012 and on September 13, 14, 19, and 20. The trial then continued on October 17, 18, 19, 2012. The trial then continued on January 9, and concluded on January 10, 2013.
The proceeding was adjourned to April for the submission of post trial memos and the court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the subject building pursuant to a deed dated September 6, 2002 (Ex 1). Respondent became the tenant of record of the Subject Premises, pursuant to a written lease agreement, dated May 17, 2000, between Respondent and Joel Abramson as Receiver. The lease was for a two year term from June 1, 2000 through May 31, 2002, at a rental of $587.38 per month (Ex 2). Said lease was last renewed by the parties in January 2004, for a term through May 31, 2006, at a rent of $669.32 per month (Ex 3). Respondent is a rent stabilized tenant and her rent has been registered with DHCR (Ex 5).
Petitioner issued a notice of non-renewal on February 13, 2006, over 90 days prior to the expiration of Respondent's last renewal lease.
Respondent is a Real Estate Professional and participates in the management of her family's real estate holdings. When Respondent rented the Subject Premises, the court finds that she did so as an investment. Respondent testified that she rented the Subject Premises through the brokerage service where she worked, Manhattan Apartments. Respondent was given the listing to enter into the system. Respondent testified she rented the Subject Premises ...