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Clent Realty Co., L.P. v. Levine

District Court of Nassau County, First District

June 27, 2018

Clent Realty Co., L.P., Petitioner,
Mark Levine and JOY SMITH, "JOHN DOE" and "JANE DOE," Respondents.

          Schneider Buchel LLP, attorneys for Petitioner

          Citak & Citak, attorneys for Respondents


         The following named papers numbered 1 to 6 submitted on this Motion & Cross Motion on May 2, 2018



Respondents' Notice of Motion and Supporting Documents


Respondents' Memorandum of Law in Support of Motion


Petitioner's Notice of Cross Motion and In Opposition to Motion


Respondents' Reply Affirmation in Opposition to Petitioner's Cross Motion and in further Support of Motion


Respondents' Supplement Affidavit in further Support of Motion


Petitioner's Reply Affirmation in further Support of Cross Motion


         Petitioner has commenced this holdover proceeding against Respondents Mark Levine and Joy Smith, to evict them from 5 Clent Road, Apt. 2J, Great Neck, New York. The Respondents have alleged to "have sublet the premises on a short term basis in violation of ETPA 2507.7 and RPL 226-b," see paragraph 4 of the first cause of action of the Petition.

         It is further alleged that the use of the premises as a "hotel" violated Nassau County fire prevention ordinances and constituted an illegal use under the Village of Great Neck Plaza code. See paragraph 5 and 6 of the first cause of action of the Petition.

         The Petition alleges that Respondents were served with the Notice of Default on or about July 19, 2017. The Notice, dated July 19, 2017, provides that the Respondents violated the Lease due to an illegal sublease:

"PLEASE TAKE NOTICE that it has come to the attention of Clent Realty Co., L.P. ("Landlord") that you are in violation of law and have rendered landlord subject to civil penalties by reason permitted unauthorized transient occupant(s) to reside in the premises known as 5 Clent Road, Apt. 2J, Great Neck, New York 11021 ("Premises"), for hire and without the express written consent of the Landlord. Specifically, you subleased and/or permitted unidentified occupants to contract for and briefly reside in the Premises for payment through or otherwise. This is a breach and violation of your lease ("Lease"), Real Property Law 226-b, which is made expressly applicable to your Lease by 2505.7 of the Emergency Tenant Protection Act ("ETPA"),
(a) Housing accommodations subject to these regulations may be sublet in accordance with the provisions, and subject to the limitations, of section 226-b of the Real Property Law provided the additional provisions of this section are complied with and provided further that the prime tenant can establish that at all times he has maintained the housing accommodation as his primary residence and intends to occupy it as such at the expiration of the sublease."

         The Notice states that the Respondents violated ETPA § 2504.2 (c) and (d), and Great Neck Plaza Code § 225-90.1.

         The Notice further claims that Respondents' actions are incurable and/or willful:

"PLEASE TAKE NOTICE, that your actions are incurable [ETPA §2504.1(d)(2)(I)] or are a willful violation your obligations as tenants inflicting serious and substantial injury on the Landlord or the property. ETPA §2504.1(d)(2)(iii). As such, for the foregoing reasons, the term of your tenancy will expire on July 31, 2017 and all of your right, title, and interest in the Lease and the Premises shall thereupon wholly cease and expire and you will be required to quit and surrender the apartment to the Landlord."

         Respondents' answer, dated September 29, 2017, denies the allegations of the Petition. Several affirmative defenses are asserted, including failure to serve prerequisite notices, failure of Petitioner to act in good faith, and Respondents' actions not constituting a substantial violation of the lease.

         Respondents move for summary judgment supported by the Affidavit of Respondent Mark Levine, dated January 31, 2018, executed in the State of Florida. Mr. Levine states that Joy Smith is his wife. Respondent Mark Levine signed the Lease for Apt. 2J on September 20, 1996, and has resided in the apartment for more than 21 years. He recently purchased a boat which he hopes to moor in Great Neck or Port Washington. An Extension Lease was signed for the period from November 1, 2016 to October 31, 2018.

         Respondent Mark Levine states that, in the past, there were two prior attempts to evict them as follows:

(a) unsuccessful attempt to evict based upon lack of primary residence;
(b) unsuccessful 2005 proceeding to evict for illegal subletting. Respondents note that Petitioner served a Notice to Cure in the 2005 proceeding.

         Mr. Levine attacks the present proceeding because the sublet lasted only four (4) nights and ended seven (7) months prior to this proceeding being instituted.

         Mr. Levine further states that his business endeavors require him to travel extensively throughout the U.S., Caribbean, and the Netherlands. Respondent Mark Levine advises that presently he is involved in advising small Caribbean nations on economic development.

         Respondent Mark Levine also states that he has extensive history of using Airbnb since 2011 for his employment travels. Respondent Mark Levine rents the two (2) condominiums that he owns in Florida to customers of Airbnb. He also uses Airbnb to assist an acquaintance located in Aruba.

         Mark Levine acknowledges that he subleased the apartment to Victoria Gartstein aka Viktoria Gartstein (hereinafter "Viktoria Gartstein"), in 2014-2015, for which he received Petitioner's permission to sublease the apartment.

         Mark Levine states that he listed the apartment on the Airbnb platform in December of 2016. Respondent Mark Levine was going through marital difficulties and work pressures at this time. Respondent Mark Levine writes that he decided to rent for four (4) nights from December 30, 2016 to January 3, 2017, to earn extra money "to deal with the financial pressures of mounting expenses."

         Mark Levine states that he received the gross sum of $345 for the Airbnb rental, which was less then the monthly rent of $939.00.

         Mark Levine alleges that he did not rent the apartment to anyone else based upon an Airbnb listing.

         Mark Levine acknowledges that he continued to list the property on the Airbnb platform for several months after January 3, 2017. Respondent Mark Levine urges that ...

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