Civil Court of the City of New York, New York County
December 11, 2013
Landmark Associates, Petitioner-Landlord
Lumin Ochoa Ruiz and MANUEL RUIZ 304 East 62nd Street, Apartment 10 NEW YORK, NEW YORK 10065, Respondent-Tenant ELNORA RUIZ, "John Does 1-5" and "Jane Does 1-3" Respondent-Undertenants.
KOSSOFF & UNGER Attorneys for Petitioner By: Mark H. Ginsberg, Esq.
LENOX HILL NEIGHBORHOOD HOUSE Attorneys for Respondent Lumin Ochoa Ruiz By: Lauren Sismondo, Esq.
Sabrina B. Kraus, J.
The underlying summary holdover proceeding was commenced by LANDMARK ASSOCIATES (Petitioner) against LUMIN OCHOA RUIZ and MANUEL RUIZ (Respondents), the rent stabilized tenants of record, based on the allegation that Respondents have permitted occupants in the Subject Premises in violation of their lease and that this constitutes a breach of substantial obligation of their tenancy as set forth in Rent Stabilization Code §2524.3(a).
Both parties have moved for summary judgment. On, the court heard argument and reserved decision. The motions are consolidated herein for disposition.
Respondents are the tenants of record pursuant to a written lease agreement dated September 1, 1993, which was thereafter renewed. Petitioner alleges Respondents have breached paragraph "1", "11" and "17" of said lease.
Paragraph 1 allows occupancy by the named tenants, and their immediate family, and any additional occupants as permitted in RPL §235-f.
Paragraph 11 provides that Respondents are obligated to comply with applicable government laws.
Paragraph 17 addresses defaults in general.
Respondents are a married couple, respectively 76 and 89 years old, and have lived in the Subject Premises for over 20 years. They have seven children, five of whom reside in the United States, and five grandchildren also residing in this country. Birth certificates for all five children have been provided by Respondents in the moving papers. Respondents are dependent on their children to assist them with daily activities and care, given their age and health. Respondents acknowledge that they have had immediate family members stay overnight in the Subject Premises, but state this has been limited only to members of their immediate family, and that the only people currently residing in the Subject Premises are Respondents and their adult daughter Generosa Ruiz, who is disabled. Additionally, another son had stayed with Respondents while being treated for liver cancer at Mount Sinai Hospital, but has since returned to the Philippines.
Petitioner alleges to have installed a camera to record who enters and exits from the front door of the Subject Premises. While the pleadings are not explicit, Petitioner's moving papers clearly specify that they seek to maintain this proceeding based on alleged overcrowding of the Subject Premises and an alleged violation of NYC Admin Code §27-2075, in addition to an alleged breach of lease.
Additionally, Petitioner asserts that while the alleged overcrowding may have been cured, it was not cured prior to the expiration of the Notice to Cure served herein.
Respondent asserts that there was never any violations of the lease and that any alleged violation has been cured.
Essentially there are two separate claims being asserted by Petitioner as a basis for the proceeding. One is breach of applicable laws regarding overcrowding and the other is breach of lease.
Alleged Violation of Law By Overcrowding
As to the alleged breach by Respondents of any overcrowding regulations, or the cause of action Petitioner asserts pursuant to paragraph 11 of the lease, the court finds that Petitioner has failed to establish a cause of action and that Respondent is entitled to summary dismissal of this claim.
As noted above, there is nothing particular in the pleadings that would alert Respondent to the fact that Petitioner is bringing this case for a violation of law concerning overcrowding. Other then the reference to Paragraph 11 of the lease, no law is alleged to have been violated in the pleadings. Additionally, where the landlord claims that a rent stabilized tenants's occupancy is illegal because of overcrowding the applicable provision under the Rent Stabilization Code is §2524.3(c) which provides a cause of action where "Occupancy of the housing accommodation by the tenant is illegal because of the requirements of the law and the owner is subject to civil or criminal penalties therefor..".
In addition to the fact that no such cause of action is pled by Petitioner, the authorities hold that a proceeding based on a breach of an overcrowding statute can not be maintained, where as here, Petitioner acknowledges that no violation has been placed against Petitioner or the building by virtue of the alleged overcrowding [ 210 West 94 LLC v Concepcion 2003 NY Slip Op 50612(U)].
Based on the foregoing to the extent Petitioner asserts a breach of paragraph 11 of the lease, or applicable laws regarding overcrowding, Respondent's motion is granted and those claims are dismissed.
Breach of Lease
Dismissal of the claim for violation of laws governing overcrowding leaves one remaining claim asserted by Petitioner, which is that Respondents have breached paragraph one of their lease.
In 1990, the Appellate Term, First Department, reversed the decision of a Housing Court Judge dismissing a holdover proceeding against two rent stabilized tenants, where it was asserted that the tenants had a written lease and the occupancy was in excess of what was provided for by RPL 235-f (425 Realty Co. v Herrera 146 Misc.2d 790).
In 1997, the Appellate Division, First Department, reversed the holding by the Appellate Term in Herrera, and held that RPL 235-f was enacted for the protection of tenants, not landlords, and that the statute creates no affirmative right of action for landlords to enforce occupancy limits (Capital Holding Co. v Stavrolakes 242 A.D.2d 240). However, the court noted that said reversal "will not restrict landlords from setting reasonable occupancy limits in leases, or prevent them from enforcing such lease provisions, so long as they do not violate the minimum protections afforded tenants and occupants under section 235-f (id at 244)."
The language relied upon by Petitioner in the lease at bar was found to be enforceable by both the Appellate Term and the Appellate Division in a breach of lease case against rent stabilized tenants (see Roxborough Apts. Corp. v Becker 296 A.D.2d 258 and 187 Misc.2d 604).
However, the lease provides "(t)he Apartment may be occupied by the tenant or tenants named above and by the immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property §235-f (emphasis added)."
Thus the lease clearly allows both tenants and members of their immediate family to occupy the Subject Premises, in addition to occupants as that term is defined by RPL 235-f.
The lease does not limit the number of immediate family members of tenants that can occupy the Subject Premises. The only limit on the number of people occupying the premises is on occupants who are not immediate family members, to the extent such a limit is enforceable as set forth in RPL 235-f.
In the case at bar, Respondents allege that only the tenants and immediate family members have occupied the Subject Premises. Petitioner has provided photographs of the persons alleged to have been in occupancy, Respondents confirm that each person is an immediate family member and provide affidavits identifying each family member photographed. Respondents have even provided the birth certificates for their children.
Petitioner provides no evidence contradicting the identity or family relationship of these individuals. Petitioner argues that it is irrelevant if the individuals are immediate family members because occupancy by so many constitutes an unlawful occupancy, but as noted above that claim has been dismissed.
Given that the lease allows unlimited immediate family members to occupy the Subject Premises, and that breach of lease is the only cause of action asserted or maintainable by Petitioner under the circumstances, and that 235-f does not augment Petitioner's right to enforce occupancy limits, Petitioner has failed to establish a breach of lease or any entitlement to summary relief.
The court notes that this is highlighted by Petitioner's acknowledgment that the current occupancy by only Respondents and their disabled adult daughter, which exceeds the total number of additional occupants that might be permitted under 235-f(4) (as it is occupancy by both tenants and an additional adult) is not a breach of the lease provision, which does not limit the number of immediate family members of tenants that may occupy the Subject Premises.
Petitioner's last argument is that Respondents should be denied summary judgment because the uncontested affidavit of Respondent identifying John Doe 9 and Jane Doe 4 as Edgar Ruiz and Maria Ruiz, her son and granddaughter, is insufficient and that " respondents have failed to establish" that the occupants are immediate family members. In fact such argument misconstrues where the burden of proof lies in this proceeding.
It is Petitioner who has the burden to prove by a preponderance of admissible evidence that the Subject Premises were occupied by someone other then the immediate family members allowed by the lease. Petitioner has failed to come forward with any admissible evidence that a single non immediate family member occupied the Subject Premises and offers no rebuttal to the affidavits and birth certificates submitted by Respondents establishing said relationship.
However, as summary judgment is a drastic remedy which deprives a party of its day in court, where there appears to be a question of material fact, it is better to err on the side of denying summary judgment. The court finds the only question of material fact raised by Petitioner is whether Petitioner can establish, contrary to the evidence provided by Respondents and the other family members, that any alleged occupant was not an immediate family member.
For this reason, the court feels compelled to deny Respondent's motion to dismiss the proceeding and sets the matter down for trial on the alleged breach of paragraph 1 of the lease.
Trial shall take place January 13, 2014 at 9:30 am.
This constitutes the decision and order of this court.