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Allen v. Jay Street HQ Housing Development Fund Co. Inc.

Civil Court of the City of New York, Kings County

December 18, 2013

Reverend Van Allen, Petitioner,
Jay Street HQ Housing Development Fund Company, Inc. and CONCORD MANAGEMENT OF NEW YORK, Respondents.

Unpublished Opinion

Pro Se Plaintiff: Reverend Van Allen

Attorney for Defendant: Sperber Deneberg & Kahan, P.C.

Ingrid Joseph, J.

In this commercial lockout proceeding, Petitioner Reverend Van Allen moved by Order to Show Cause in lieu of a Notice of Petition on or around August 28, 2013 to be restored to a laundry room/office space located at 365 Jay Street, Brooklyn, New York. The court by order dated October 18, 2013 denied the Order to Show Cause. On November 12, 2013, the petitioner filed another Order to Show Cause to renew and reargue the court's decision and order.

In support of the motion, the petitioner provided, among other things, a copy of the lease (dated November 7, 2001) and rider agreement (dated January 7, 200) that was executed by the prior over-tenant, Black United Fund of New York ("BUF"). The petitioner also provided the Lease Surrender Agreement ("the surrender agreement") between the City of New York ("the City") and BUF, which was signed on April 27, 2006 by a representative from BUF and subsequently, on May 24, 2006, by the then Assistant Commissioner for the City of New York. The petitioner contends that these documents were provided to the attorney who filed the original Order to Show Cause on his behalf. He explained that he expected the documents to be submitted with the motion but for reasons beyond his control, the attorney failed to include them.

Respondent Jay Street HQ Housing Development Fund Company, Inc. ("Jay Street HQ") argues that the petitioner should be precluded from offering new materials that should have been included with the prior motion. In accordance with its prior argument, the respondent maintains that the petitioner is not entitled to occupy the subject premises, because he has failed to demonstrate that the City approved the lease and rider agreement executed by BUF.

A motion for leave to reargue shall be identified as such; based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered in the prior motion; made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry (CPLR § 2221(d)(1), (2), (3)). A motion for leave to renew shall be identified specifically as such; based upon new facts not offered on the prior motion that would change the determination, or demonstrate that there has been a change in the law that would change the prior determination; and contain a reasonable justification for failure to present such facts on prior motion (CPLR § 2221 (e)(1), (2), (3)). Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion (Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 A.D.3d 727, 728 [2d Dept 2009] and see Matter of Gold v Gold, 53 A.D.3d 485 [2d Dept 2008]).

In this case, the original motion contained only a copy of the rider agreement between the petitioner and BUF. The underlying lease between the petitioner and BUF was not included. BUF's lease with the City of New York, and the Surrender Lease agreement between BUF and the City were also omitted. The petitioner's attorney also failed to annex a copy of respondent Jay Street HQ's deed to the petitioner's original order to show cause. Consequently, the court's prior analysis could not have taken into consideration the various terms and provisions contained in any of those documents, which directly impact the parties' rights and obligations in this context. For example, according to the lease and rider agreements, the petitioner began occupying the laundry room/office space in or around November 2001. This fact alone raises an issue concerning the petitioner's use of self-help to dispossess the petitioner by changing the locks, because it is well settled that it is unlawful to change locks to evict a tenant without using judicial process (see Romanello v Hisrchfield, 63 N.Y.2d 613 [1984]). Additionally, in the surrender lease agreement, the City agreed, upon BUF's surrender of its lease, to accept any and all ancillary agreements that had been executed during BUF's tenancy. Specifically, paragraphs 4 and 5 state that any subleases that were executed between BUF and third parties became direct leases between the City and the respective sublessees. These provisions, in conjunction with the fact that the surrender agreement was signed by Assistant Commissioner for the City of New York and notarized on April 27, 2006, rebut the respondent's argument that the petitioner's lease and rider was not approved by the City.

The respondent's deed with the City of New York was submitted by petitioner with the instant motion. The deed was executed on June 13, 2013, approximately seven (7) years after BUF surrendered the lease to the City. It designates Jay Street HQ as the Sponsor of an Urban Development Action Area Project ("UDAAP") located at 365 Jay Street, Brooklyn, New York pursuant to City Council Resolution No. 825. The deed provides that the UDAAP consists solely of the rehabilitation or conservation of existing private or multiple dwellings or the construction of one-to-four unit dwellings in accordance with Article 16 of the General Municipal Law. It also incorporates by reference a certain Land Disposition Agreement ("LDA") and a Regulatory Agreement ("RA") that were executed between the City and Jay Street HQ. Those documents have not been submitted by either side; however, a review of statutory and case law reveal that those kinds of agreements, when executed in connection with an UDAAP, set out terms and conditions of a Sponsor's acquisition of property through the program (see generally CPS Operating Company LLC v Pathmark Stores, Inc., 18 N.Y.3d 26 [2011]; Saunders Homes HDFC v Lamar, 19 Misc.3d 1133(A) [Civil Court, Kings County 2008]). The deed further provided that the City conveyed the property to Jay Street HQ in "as is" condition. Therefore, it is logical to conclude that when BUF surrendered its lease to the City subject to leases that were executed during its lease period, the City, when it deeded the property to Jay Street HQ did so subject to the same encumbrances.

The petitioner's lease and rider agreement, the surrender lease agreement, and the deed between the City and Jay Street HQ, when examined in conjunction with the LDA and RA, may or may not corroborate the petitioner's position that his tenancy rights endure through November 2021. Therefore, the respondent's right or lack thereof, to take possession of the premises must be resolved within the context of a summary proceeding pursuant to Real Property Actions and Proceedings Law (see Poulakas v Ortiz, 25 Misc.3d 717 [Civil Court, Kings County 2009] citing Great Park Corp. v Goldberger, 41 Misc.2d 988 [Civil Court, New York County 1964]).

Accordingly, that branch of the petitioner's motion for leave to renew is granted, and upon renewal, the petitioner shall be restored to possession of the subject laundry room/office space on the first ...

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