Opinion
2003-1803 KC.
Decided October 25, 2004.
Appeal by landlord, as limited by its brief, from so much of an order of the Civil Court, Kings County (O. Chin, J.), dated November 17, 2003, as granted tenants' motion for summary judgment dismissing the petition.
Order insofar as appealed from unanimously modified by providing that tenants' motion is granted only to the extent of setting the matter down for an immediate hearing on the issue of whether service of the petition and notice of petition was proper and is otherwise denied; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
In this nonpayment proceeding, the petition alleges that the apartment is subject to rent stabilization by reason of landlord's receipt of a property tax abatement ( see RPTL 421-a) but that it is "not subject to any of the foregoing" bases of rent stabilization because it contains less than six dwelling units, and that the $1,250 monthly rent demanded does not exceed the lawful stabilized rent. In their answer, tenants asserted various defenses including that service was improper; that the petition was confusing; that the three-day rent notice was signed by an agent; and that the apartment was not properly registered with DHCR. After answering, tenants moved for summary judgment on the grounds, inter alia, that service of the rent notice was defective because it was served at 716 Lefferts Ave., whereas tenants reside at 716A Lefferts Ave., which, they claimed, was a separate building; that the petition was confusing because it seemed to state that the apartment is and is not subject to rent stabilization; that service of the petition and notice of petition was improper because no copies of the petition and notice of petition were found on, near, or under the door or received in the mail; and that the three-day rent notice was defective because it was signed by an agent.
In opposition to the motion, landlord's principal averred that 716A Lefferts Ave. is the description that he uses for the ground floor of 716 Lefferts Ave. and that 716 and 716A Lefferts Ave. are the same building. Landlord's attorney claimed, inter alia, that the statement in the petition that "the apartment is not subject to any of the foregoing" was intended to apply to the stated bases for rent stabilization other than that expressly alleged, to wit, landlord's receipt of a tax abatement, and that 716 and 716A are not separate buildings. To support the latter claim, landlord's attorney attached a copy of a purported DHCR registration in which landlord listed tenants' address as 716 Lefferts Ave., apartment A. In reply, tenants' attorney, inter alia, attacked the sufficiency of landlord's uncertified DHCR registration. The court below granted tenants' motion for summary judgment, reasoning that landlord had the burden, but failed, to show that the apartment was properly registered and that the rent sought was in the proper amount. We modify the order to provide that tenants' motion is granted only to the extent of directing that a traverse hearing be held on the issue of service.
It is elementary that the party seeking summary judgment has the burden of establishing its entitlement thereto ( Peskin v. New York City Transit Auth., 304 AD2d 634; Smith v. ATT Resource Mgt. Corp., 259 AD2d 480) and that a motion for summary judgment should be denied, even where the opposing papers are insufficient, where such a showing is not made ( Gaetano Marzotto Figli v. Filene's Basement, 213 AD2d 591). A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof ( Peskin, 304 AD2d 634; Larkin Trucking Co. v. Lisbon Tire Mart, 185 AD2d 614, 615). Where the moving papers fail to establish that no issues of material fact exist, the motion must be denied regardless of the sufficiency of the opposing papers ( Silverman v. Perlbinder, 307 AD2d 230).
In the instant case, the lower court held that the burden was upon landlord to establish that the premises is properly registered and that the rent sought was proper. However, while this may be landlord's ultimate burden, upon tenants' motion for summary judgment, the burden was on tenants to establish their claim that the apartment was not properly registered and that the rent sought exceeded that permitted. Tenants did not carry this burden.
In addition, although poorly drafted, the petition adequately alleged that the premises was subject to rent stabilization by virtue of landlord's receipt of a tax abatement. Tenants, who were represented by counsel, were fully aware of their status from a prior litigation and were not prejudiced by the poor manner in which the petition sought to exclude the other bases for rent stabilization.
Inasmuch as a triable issue of fact was raised as to whether the rent notice was served at the correct address, summary judgment cannot be granted on the basis of tenants' claim that the notice was served at the wrong building. In addition, the fact that the rent notice is signed by an agent does not render it defective ( Kwong v. Eng, 183 AD2d 558).
An immediate hearing is directed on the issue of service because tenants adequately controverted the affidavit of service of the petition and notice of petition (CPLR 3212 [c]).