Civil Court of the City of New York, New York County
SPERBER DENENBERG & KAHAN, PC Attorney's for Petitioner.
THE LEGAL AID SOCIETY HARLEM COMMUNITY LAW OFFICE Attorneys for Respondents Alan Canner, Esq.
Sabrina B. Kraus, J.
The underlying summary holdover proceeding was commenced by 603-07 REALTY HOLDINGS INC (Petitioner) against ANA GUZMAN (Respondent) the rent-stabilized tenant of record, and BIENVENIDA GOMEZ (Gomez) and BRIAN GUZMAN (Guzman) based on the allegation that Respondent has sublet the Subject Premises in violation of her lease and the Rent Stabilization Law.
Petitioner issued a ten day notice to cure on January 21, 2013, a notice of termination on February 26, 2013 and the petition is dated March 14, 2013. The proceeding was originally returnable April 3, 2013. Respondent appeared by counsel on May 17, 2013 and filed a written answer. The answer asserts improper service, acceptance of rent vitiating the notice of termination, that the undertenants are family members with longstanding ties to the Subject Premises, and that their occupancy does not therefore constitute subletting.
On May 28, 2013, Respondent moved for summary judgment. On June 26, 2013, Petitioner cross-moved for summary judgment and related relief. On June 26, 2013 the court heard oral argument and reserved decision on the motions. The motions are consolidated for disposition and determined pursuant to the annexed decision and order.
Respondent moves for summary judgment on her fourth affirmative defense, that Petitioner accepted payment of rent after service of the notice of termination and prior to the commencement of the tenancy. Respondent asserts in her affidavit that rent for March was paid on March 19, 2013. Respondent annexes a copy of a receipt from the management office which acknowledges payment as of said date. Respondent paid April rent on April 10, 2013 and also asserts proof of receipt by Petitioner for same on said date.
The notice of termination in this proceeding is dated February 26, 2013, and it was served by mail on said date. The notice terminated Respondent's tenancy effective March 10, 2013. The proceeding was commenced on March 28, 2013, when the affidavits of service for the Petition were filed.
The Court finds that Respondent is not entitled to summary dismissal on this basis, nor is Petitioner entitled to dismissal of the defense. In Brodcom West Development Co. v. Lumpkin, Index No 79395/08 (Dec18, 2008), this court held, after trial, that acceptance of a month's rent did not vitiate the termination notice. However, that was after Respondent had an opportunity to present facts in support of the defense at trial. As this court noted in said decision it was clear from both the evidence and testimony at trial that the acceptance of rent created no confusion on the part of Respondent. In this case, the trial has not yet taken place and there are questions of fact which need to be determined at trial. For example, the moving papers state that Respondent moved into the Subject Premises in 1982 with her brother, and that in 1986 the lease was "transferred" to her name. If "transferred" means that Respondent succeeded to her brother's tenancy, then the 1986 lease agreement relied upon by Petitioner may not be the governing rental agreement. Additionally, the rent payments at issue appear to have been made in person, but it is not clear who delivered these payments, whether they were personally accepted by Petitioner and whether there was any interaction or discussion between the parties to said transactions.
Moreover, th primary authority relied upon by Respondent for dismissal is 207 East 78th Street Assoc. v. Cassidy192 A.D.2d 479. Cassidy was a non-primary residence proceeding, and as acknowledged by Respondent, the determination of the effect of acceptance of rent differs when the issue is in relation to service of a notice of non-renewal, after the expiration of the lease, ...