Branic International Realty Corp., Appellant,v.Phillip Pitt,, Respondent, et al., Respondents.BriefN.Y.August 25, 2015To be Argued by: MARTHA A. WEITHMAN (Time Requested: 30 Minutes) Court of Appeals of the State of New York O BRANIC INTERNATIONAL REALTY CORP., Petitioner-Appellant, -against- PHILLIP PITT 216 West 103rd Street, Room 214 New York, New York 10025, Respondent-Respondent, -and- “JOHN DOE” and/or “JANE DOE,” Respondents. BRIEF FOR RESPONDENT-RESPONDENT MARTHA A. WEITHMAN, ESQ. GODDARD RIVERSIDE SRO LAW PROJECT 51 West 109th Street New York, New York 10025 Tel: (212) 799-9638 Fax: (212) 721-1514 mweithman@srolaw.org -and- JIM PROVOST, ESQ. MANHATTAN LEGAL SERVICES One West 125th Street New York, New York 10027 Tel: (646) 442-3100 Fax: (646) 442-3100 Attorneys for Respondent-Respondent Appellate Division, Docket No.: 2013-00221 New York County Clerk’s Index No.: 75547/07 APPELLATE INNOVATIONS (914) 948-2240 8146 TABLE OF CONTENTS COUNTER-STATEMENT OF QUESTIONS PRESENTED ......................... 1 PRELIMINARY STATEMENT ........................................................... 2 STATEMENT OF FACTS .................................................................. 3 A. History of the Subject SRO Hotel and Phillip Pitt's Tenancy ........................................................................ 3 B. Licensee Holdover Sunnnary Proceeding ................................. 4 C. Branic's Action Against HRA for Breaching its Obligation to Pay Mr. Pitt's Rent Pursuant to the "Memorandum of Understanding" ......................................... 7 D. Branic's Appeal to the Appellate Tenn, First Department .................................................................... 8 E. The Appeal Before the Appellate Term, First Department. .......................................................... : . ....... 8 ARGUMENT POINT ONE THE APPELLATE DIVISION CORRECTLY HELD THAT MR. PITT WAS A "PERMANENT TENANT" UNDER RSC § 2520.60) BECAUSE HE CONTINUOUSLY RESIDED IN THE SUBJECT SRO BUILDING FOR MORE THAN SIX MONTHS .................................................................................... 11 A. Six Months of Continuous Residence in an SRO Hotel Satisfies the Requirement to Become a "Permanent Tenant" Pursuant toRSC § 2520.60) .................................... 11 1 TABLE OF CONTENTS (Continued) B. The Definition of"Tenant" (RSC § 2520.6[d]) Applies Only to Apartment Tenants and Must Be Read Separately from "Permanent Tenant" (RSC § 2520.60]) ............. 14 C. Payment of Rent is Not Required to Obtain Permanent Tenant Status ................................................................ 21 POINT TWO THE APPELLATE DIVISION CORRECTLY HELD THAT THE SUBJECT SRO HOTEL WAS NOT EXEMPT FROM RENT STABILIZATION BECAUSE THE MEMORANDUM OF UNDERSTANDING BETWEEN HRA AND BRANIC DID NOT CONSTITUTE A LEASE .................................................... 24 A. The MOU Did Not Surrender Absolute Possession and Control to HRA .............................................................. 24 B. The MOU Lacked Other Essential Elements of a Lease ............... 29 C. The Contents of the MOU Support Mr. Pitt's Status as a Rent Stabilized "Permanent Tenant" ................................... 32 POINT THREE BRANIC'S POLICY ARGUMENT THAT THE APPELLATE DIVISION'S DECISION WILL HA VB A "CHILLING EFFECT" ON LANDLORDS' WILLINGNESS TO PROVIDE EMERGENCY HOUSING IS UNAVAILING ........................................................... 33 POINT FOUR THE APPELLATE DIVISION CORRECTLY HELD THAT THE APPEAL PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE IT IS "AN ISSUE OF SUBSTANTIAL PUBLIC INTEREST THAT IS LIKELY TO RECUR AND EVADE REVIEW" ....................................................................... 35 11 TABLE OF CONTENTS (Continued) CONCLUSION ............................................................................ 40 lll TABLE OF AUTHORITIES 1234 Broadway LLC v. Jing Yong Xu, 10 Misc. 3d 655, 2005 N.Y. Slip Op. 25478 (Civ. Ct. N.Y. Cty. 2005) ................................................................................................................. 13, 38 Benjamin Shapiro Realty Co. v. N. Y State Div. Hous. & Cmty. Renewal, 2 A.D. 3d 220, 769 N.Y.S. 2d 226 [1st Dept. 2003] .................................... 13 Branic International Realty Corp. v. City of New York, 27 Misc. 3d 1222(A), 2010 N.Y. Slip. Op. 50845(U) (Sup. Ct. N.Y. Cty. 2010) ........................................................................................ 7, 23 Chelsea 139 LLC v. Saunders, 936 N.Y.S. 2d 57 (App. Term, 1st Dept. 2011) ..................................................... 38 Combined Ventures, LLC v. Fiske House Apt. Corp., 74 A.D. 3d 1119, 906 N.Y.S. 2d 568 (2d Dept. 2010) ..................................... 22 Concord Realty Co. v. New York, 30 N.Y. 2d 308 (1972) ......................................................................... 35-36 · Damaro Rest. Group, LLC v. Gazette Realty Holdings, LLC, 21 Misc. 3d 113l(A), 2008 N.Y. Slip Op. 52290(U) (Sup. Ct., Westchester Cty. 2008) ........................................................................................................................ 26 East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y. 2d 129 (1966) ....................................................................................... 35 Engle v. Talarico, 33 N.Y. 2d 237 (1973) ............................................................................. 20 Gold v. Lomenzo, 29 N.Y. 2d 468 (1972) .................................................................................... 35 lV TABLE OF AUTHORITIES (Continued) Gruen v. Patterson, 55 N.Y. 2d 631,446 N.Y.S. 2d 253 (1981) ................................................. 22 Heilweil v. N.Y. State Div. of Hous. & Cmty. Renewal, 12 A.D. 3d 300, 785 N.Y.S. 2d 63 (1st Dept. 2004) ..................................... 13 I & T Petroleum Inc. v. Lascalia, 22 Misc. 3d 1118(A), 2009 N.Y. Slip Op. 50173(U) (Sup. Ct. Nassau Cty. 2009) ....................................................................................................................... 26 Kanti-Savita Realty Corp. v. Santiago, 18 Misc. 3d 75 (App. Term, 2d Dept. 2007) .................................. 9, 12-13, 21 Le Drugstore Etats Unis, Inc. v. New York State Ed. of Pharmacy, 33 N.Y. 2d 298, 301 (1973) .................................................................................... 35 Long v. State of New York, 7 N.Y. 3d 269 (2006) ...................................................................... 19-20 Matter of Davis v. Dinkins, 206 A.D. 2d 365 (2d Dept. 1994), lv. denied 85 N.Y. 2d 804 (1995) ..................................................................... 9, 25, 27, 29-30, 32 Mertz v. Mertz, 271 N.Y. 466, 471 (1936) .................................................................. 33-34 New Amsterdam Casualty Co. v. National Union Fire Insurance Co. of Pittsburgh, Pa., 266 N.Y. 254, 259 (1935) ........................................................................ 26 Novick v. Hall, 70 Misc. 2d 641, 334 N.Y.S. 2d 698 (Civ. Ct. N.Y. Cty. 1972) ........................ 22 v TABLE OF AUTHORITIES (Continued) Park Summit Realty Corp. v. Frank, 107 Misc. 2d 318,434 N.Y.S. 2d 73 (App. Term, 1st Dept. 1980), aff'd, 84 A.D. 700, 448 N.Y.S. 2d 414 (1st Dept. 1981), aff'd, 56 N.Y. 2d 1025, 453 N.Y.S. 2d 643 (1982) ............................................................................... 13, 22 People v. Santi, 3 N.Y. 3d 234 (2004) ........................................................................... 19 People ex rel. Guggenheim v. Mucci, 32 N.Y. 2d 307 (1973) ............................................................................................. 35 RKO-Keith-Orpheum Theatres, Inc. v. New York, 308 N.Y. 493 (1955) ............................................................................... 20 Williams v. Williams, 23 N.Y. 2d 592 (1969) ......................................................................... 19 Women's Interart Center, Inc. v. New York City Economic Development Corp., 97 A.D. 3d 17 (1st Dept. 2012) ............................................................ 27-28 Unreported and Other Cases 204 West 73rd Street, LLC v. Hess, N.Y.L.J., March 17, 2004 at 20, col. 1 (Civ. Ct. N.Y. Cty. 2004) ....................... 13 Morris v. Cole, N.Y.L.J., April 5, 1989 at 22, col. 6 (Civ. Ct. N.Y. Cty. 1989) ....................... 13-14 Lee v. James N.Y. Civ. Ct. N.Y. Cty. Index No. 61186/10 (May 31, 2011) (N.O.R.) ............. 38 Vl TABLE OF AUTHORITIES (Continued) Statutes 9NYCRR§2520.6(d) ......................................................... 6, 11,14-16,37 9 NYCRR § 2520.60) ............................ .4, 6-7, 9, 11-12, 14-17,20-21,32,36,38 9 NYCRR § 2520.6(m) ............................................................. 12, 16-17, 19 9 NYCRR § 2520.11(b) ....................................................................... 6, 24 9 NYCRR § 2524.1 .............................................................................. 21-22 Other Sources and Treatises 2010 Report to the ChiefJudge ofthe State of New York, Executive Summary, p. 1, which stated that "99 percent of tenants are unrepresented in eviction cases in New York City." https://www.nycourts.gov/ip/access-civil-legal- services/PDF /CLS-TaskF orceREPORT.pdf. .......................................................... 36 New York City Rent Guidelines Board, Summary of Hotel Orders #1 through #43,. http:/ /nycrgb.org/downloads/guidelines/hotelorders20 14.pdf... ............................ 18 New York City Rent Guidelines Board, Summary of Apartment Orders #1 through #45, http:/ /nycrgb .org/ downloads/ guidelines/ aptorders20 14. pdf. ................................. 18 NYC Administrative Code§ 26-501.. ............................................................... 37 McKinney's Cons. Laws ofNY, Book 1, Statute§ 98 ................................. 15 McKinney's Cons. Laws ofNY, Book 1, Statutes§§ 141, 143, 231.. ............... 19-20 Mult. Dwell. Law§ 248(15) ............................................................................ 35 Vll TABLE OF AUTHORITIES (Continued) The Task Force to Expand Access to Civil Legal Services in New York, 2013 Report to the Chief Judge of the State of New York, p. 20. https://www.nycourts.gov/ip/access-civil-legal-services/PDF/CLS- TaskForceReport 2013.pdf... ............................................................................ 36 Vlll COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the Appellate Division, First Department, correctly find that Phillip Pitt was a "permanent tenant" as defined by Rent Stabilization Code (9 NYCRR) § 2520.60) because he undisputedly continuously resided in the subject rent stabilized SRO hotel for more than six months? Respondent-Respondent submits that the answer is "yes." 2. Did the Appellate Division correctly find that the subject SRO hotel was not exempt from rent stabilization because the "Memorandum of Understanding" between Branic and HRA was not a lease? Respondent-Respondent submits that the answer is "yes." 1 PRELIMINARY STATEMENT Respondent-Respondent Phillip Pitt requests that this court affirm the unanimous holding of the Appellate Division below, which held that he was a "permanent tenant" as it applies to Single Room Occupancy hotels because he undisputedly continuously resided in the subject SRO hotel for more than six months. The Appellate Division's Order is in harmony with the plain language of the statute and long-standing case law. As a matter oflaw, the Appellate Division correctly reversed the Appellate Term's errant decision, which held that Mr. Pitt was not a "permanent tenant." The Appellate Term based its incorrect decision on an agreement that was not in the record and found that there was no "express or implied landlord-tenant relationship." The Appellate Term cited to the definition of "tenant," as it applies to apartments, thus rendering the definition of a statutory "permanent tenant" superfluous. The Appellant wrongly asks this court to read into the Rent Stabilization Code additional unwarranted requirements to obtain permanent tenant status. For the reasons set forth below, the decision of the Appellate Division should be affirmed. 2 STATEMENT OF FACTS A. History of the Subject SRO Hotel and Phillip Pitt's Tenancy It is undisputed that Respondent-Respondent Philip Pitt ("Mr. Pitt") continuously resided for more than six months at the subject Single Room Occupancy ("SRO") hotel (R. 6) located at 216 West 1 03'd Street, New York, NY 10025, which is owned by Petitioner-Appellant Branic International Realty Corp. ("Branic"). (R. at 26-27, 117). The subject SRO building is presumptively subject to the New York City Rent Stabilization Law and Code because it was built before 1969 and contains more than six units. It is undisputed that Mr. Pitt came into occupancy of the subject SRO room pursuant to an agreement between the New York City Human Resources Administration ("HRA") and Branic (R. at 6). The precise nature of that arrangement was unknown to Mr. Pitt and the court during the underlying holdover proceeding and on appeal before the Appellate Term because, despite pleading in the Petition that there was an agreement between itself and HRA, Branic failed to produce the agreement and claimed that it was not in its possession. (R. at 27, 41, 64, 102, 181, 280-281). Branic registered Mr. Pitt as the rent stabilized tenant for the subject premises with the New York State Division of Homes and Community Renewal for the years 2002 through 2006. (R. at 141-145). 3 HRA paid rent to Branic on behalf of Mr. Pitt in the amount of$65.00 per night during his occupancy in the hotel based on invoices submitted by Branic. (R. at 6, 300). In June 2007, HRA sent a document to Branic entitled "Cancellation/Room Closure Verification (Emergency Facility)" that stated: "The Emergency placement Unit (EPU) ... has been notified [sic] named above is no longer residing at your facility. Payments on his/her room will be stopped and cancellation. [sic]." (R. at 116). It was undisputed at the time that Mr. Pitt still lived in the building. (R. at 6). B. Licensee Holdover Summary Proceeding In June 2007, Branic initiated the underlying holdover proceeding in Civil Court, New York County, on the premise that Mr. Pitt was a licensee and that an agreement between Branic and HRA that had allegedly been canceled governed his occupancy (R. at 22-28). Branic's Petition pleaded that the subject premises was exempt from rent stabilization based on the alleged agreement with HRA. (R. at 28). Mr. Pitt submitted an Answer dated August 29, 2007 interposing the defenses that the Petition improperly pled the rent regulatory status as exempt from rent stabilization and that Mr. Pitt was a "permanent tenant" as defined by the Rent Stabilization Code (9 NYCRR) ("RSC") § 2520.6G) because he had continuously resided in the subject SRO hotel for more than six months. (R. at 33-36). 4 Branic did not produce a copy of its agreement with HRA to the lower court, but served HRA with a judicial subpoena duces tecum and ad testificandum seeking " ... copies of all notes, memorandum [sic], records, letters and writings regarding housing placement for Philip Pitt ... " (R. at 43-46). By letter dated October 22, 2007, HRA informed Branic's counsel that it would not comply with the subpoenas pursuant to CPLR § 2307, which requires that subpoenas for municipal agencies must be served by motion, and that federal and state law prohibit the production of information concerning public assistance recipients without said recipient's consent. (R. at 47-48). By motion dated November 26, 2007, Branic moved the court seeking to compel HRA to comply with the subpoena. (R. at 38-42). HRA cross-moved to quash the subpoena based on the reasons set forth in its letter. (R. at 6). :Mr. Pitt submitted an affidavit in support of HRA's cross-motion stating that he did not consent to disclose his confidential information by HRA. (R. at 6). 1 By decision and order dated February 19, 2008, Judge Michelle D. Schreiber denied Branic's motion to compel compliance with the subpoenas and granted HRA's motion to quash. (R. at 64-68). :Mr. Pitt moved the Civil Court for summary judgment on the grounds that he was a rent stabilized "pennanent tenant" as defmed by RSC § 2520.60), and that the Petition should be dismissed because it improperly pled the rent regulatory 1 Neither HRA's cross-motion to quash the subpoena or Mr. Pitt's affidavit in support was made part of the record below. 5 status of the subject premises as exempt from rent stabilization. (R. at 14-98). Branic cross-moved for summary judgment contending that Mr. Pitt was a licensee and the SRO was exempt from rent stabilization pursuant to RSC § 2520.11(b) based on its agreement with HRA that was not provided to the court. (R. at 99- 147). The Civil Court correctly granted Mr. Pitt's motion for summary judgment and dismissed the proceeding by order dated June 2009, holding that Mr. Pitt was a rent stabilized "permanent tenant" as defined by RSC § 2520.6G) because he had continuously resided in the subject SRO for more than six months. (R. at 6-8). The June 9, 2009 order also denied Branic's cross-motion for surmnary judgment and dismissed the petition. (R. at 8). Branic moved the Civil Court for leave to renew and reargue its order. (R. at 160-194 ). In its motion papers, Branic asserted, as it had done throughout the proceeding, that it did not possess the agreement with HRA and made representations about the contents of the agreement. (R. at 27, 41, 64, 102, 181, 280-281). Branic claimed that Mr. Pitt had obstructed it from obtaining the MOU by withholding consent to HRA to release his confidential information and urged the court to make a "negative inference" against Mr. Pitt. (R. at 163, 181, 222-223, 280-281). The Civil Court denied Branic's motion to renew and reargue by decision and order dated December 3, 2009 (R. at 10-13), reaffirming its decision 6 finding that Mr. Pitt was a "permanent tenant" as defined by RSC § 2520.60). (R. 13). C. Branic's Action Against HRA for Breaching its Obligation to Pay Mr. Pitt's Rent Pursuant to the "Memorandum of Understanding" While the Civil Court proceeding was still pending, Branic sued the City of New York and BRA for Mr. Pitt's rent in New York Supreme Court based on the "Memorandum of Understanding" ("MOU") between the parties. (See Branic International Realty Corp. v. City ofN<:W York, 27 Misc. 39 1222[A], 2010 N.Y. Slip. Op. 50845[U] [Sup. Ct. N.Y. Cty. 2010]). By Stipulation dated October 19, 2010, the Parties settled the proceeding with HRA agreeing to pay Branic $86,152.55 and the proceeding was discontinued. (R. at 305-307). Pursuant to the terms of the MOU, HRA referred Eligible Persons, such as Mr. Pitt, to the subject hotel where Branic registered them. (R. at 297). Branic set aside at most 134 rooms for potential occupancy by Eligible Persons and HRA would pay a nightly rate for the occupied rooms. (R. at 297). HRA did not guarantee that it would fill all of the 134 rooms. (R. at 300). The MOU states that an Eligible Person can become a permanent tenant and cites to RSC § 2520.60) (R. at 299) and further states that Branic may not evict such person without cause and notice to HRA. (R. at 300). 7 D. Branic's Appeal to the Appellate Term, First Department Branic appealed the Civil Court order to the Appellate Term, First Department, which reversed the Civil Court and granted summary judgment and possession to Branic. (R. at 327-329). On appeal, Branic made representations about the contents of the MOU, although it did not include it in the record. The Appellate Term relied on Branic's representation of the contents of the agreement and cited specifically to the defmition of"tenant" (RSC § 2520.6[d]) in holding that Mr. Pitt was a licensee and not a "permanent tenant" because no "express or implied landlord-tenant relationship existed." (R. at 320). Mr. Pitt moved the Appellate Term for leave to reargue its decision and, in the alternative, for leave to appeal to the Appellate Division, First Department. (R. at 228-252). Prior to submitting its reply papers to the Appellate Term, Mr. Pitt's counsel obtained for the first time a copy of the MOU between Branic and HRA from an attorney at HRA. (R. at 292-294, 296-304). The Appellate Term denied Mr. Pitt's motion. E. The Appeal Before the Appellate Division, First Department The Appellate Division granted Mr. Pitt leave to appeal and unanimously reversed the Appellate Term as a matter oflaw. (R. at 311-323). The Appellate Division correctly held that the appeal was not rendered moot by Mr. Pitt's voluntary vacatur of the premises on July 30, 2013 and constituted an exception to 8 the mootness doctrine because it presented "an issue of substantial public interest that is likely to recur and evade review." (R. at 316-317). The Appellate Division went on to hold that Mr. Pitt was a "permanent tenant" as defmed by RSC § 2520.60) because it was undisputed that he continuously resided in the subject SRO hotel for more than six months. (R. at 320). The Appellate Division held that "[a] plain reading ofRSC § 2520.60) reveals that the only requirement to be a 'permanent tenant' is six months or more of continuous residence in a particular hotel building." (Citing Kanti-Savita Realty Corp. v. Santiago, 18 Misc. 3d 75 [App. Term, 2d Dept. 2007] [criterion is not the payment ofrent but continuous residence in the unit for six months]). (R. at 318). The Appellate Division coiTectly held that "the existence of an agreement between petitioner and the New York City Human Resources Administration to house eligible homeless persons in a portion of the hotel did not make respondent a licensee or render the Rent Stabilization Code inapplicable to the hotel." (R. at 320). The court noted that "Branic never made the HRA/Branic 'memorandum of understanding' agreement part ofthe record below, and it should not be permitted to use the agreement to support its cUITent claims." (R. at 321). The court concluded by finding that, even ifBranic were allowed to rely on the MOU, it was not a lease because there was no "'sUITender of absolute possession and control of property to another party for an agreed-upon rental"' (Citing Matter of Davis v. 9 Dinkins, 206 A.D. 2d 365,366 [2d Dept. 1994], lv denied 85 N.Y. 2d 804 [1995]). (R. 321). The Appellate Division also denied Branic's motion to strike portions of the Appendix, including the Memorandum of Understanding between Branic and HRA, which Branic did not make part of the record below. (R. at 322). 10 ARGUMENT POINT ONE THE APPELLATE DIVISION CORRECTLY HELD THAT MR. PITT WAS A "PERMANENT TENANT" UNDER RSC § 2520.60) BECAUSE HE CONTINUOUSLY RESIDED IN THE SUBJECT SRO BUILDING FOR MORE THAN SIX MONTHS The Appellate Division correctly interpreted the definition of "permanent tenant" (RSC § 2520.6[j]) as the continuous residence for six months or longer in a SRO hotel. The Appellate Division appropriately reversed as a matter of law the Appellate Term's errant decision, which relied upon the defmition of"tenant" (RSC § 2520.6[ d]) as it applies to apartment tenants, to preclude Mr. Pitt from obtaining permanent hotel tenant status under RSC § 2520.60). The Appellate Term's decision rendered superfluous the definition of"permanent tenant" and was an aberration among a long line of established case law. A. Six Months of Continuous Residence in an SRO Hotel Satisfies the Requirement to Become a "Permanent Tenant" Pursuant to RSC § 2520.6(j) The RSC § 2520.60) defines "permanent tenant" as follows: For housing accommodations located in hotels, an individual or such individual's family members residing with such individual, who have continuously resided in the same building as a principal residence for a period of at least six months. In addition, a hotel occupant who requests a lease of six months or more pursuant to section 2522.5(a)(2) ofthis Title, or who is in occupancy pursuant to a lease of six months or more shall be a permanent tenant even if actual occupancy is less than six 11 months. Unless otherwise specified, reference in this Code to "tenant" shall include permanent tenant with respect to hotels.2 The RSC § 2520.6(m) also defines a "hotel occupant" as: Any person residing in a housing accommodation in a hotel who is not a permanent tenant. Such person shall not be considered a tenant for the purposes ofthis Code, but shall be entitled to become a permanent tenant as defined in subdivision G) ofthis section, upon compliance with the procedure set forth in such subdivision. Contrary to Branic's claims, it was the Appellate Division- not the Appellate Term- that was in harmony with the plain meaning of the RSC and long-standing precedent. The Appellate Division conectly held: A plain reading ofRSC § 2520.60) reveals that the only requirement to be a "permanent tenant" is six months or more of continuous residence in a particular hotel building (see Kanti-Savita Realty Corp. v. Santiago, 18 Misc. 3d 74 [App. Term, 2d Dept. 2007] [criterion is not the payment of rent but continuous residence in the unit for six months]). Thus, even if Pitt and Branic did not have an express or implied landlord-tenant relationship, Pitt nevertheless qualified as a "permanent tenant," entitling him to the enumerated protections of the Rent Stabilization Code. As it is undisputed that Pitt lived in the subject SRO for well over six months, he certainly acquired the status of a "permanent tenant." (R. at 318). Existing precedent supports the Appellate Division's interpretation of "permanent tenant" as only requiring the continuous residence of six months or 2 That portion of the definition concerning a hotel occupant who requests a lease is not at issue on appeal. 12 longer. (See Kanti-Savita Realty Corp. v. Santiago, 18 Misc. 3d 74 [App. Term, 2d Dept. 2007]; see also 1234 Broadway LLC v. Jing Yang Xu, 10 Misc. 3d 655, 809 2005 N.Y. Slip Op. 25478 [Civ. Ct. N.Y. Cty. 2005] ["a permanent hotel tenant is an individual who has continuously resided in the same hotel accommodation as his/her primary residence for a period of at least six months"]; Heilweil v. NY State Div. of Hous. & Cmty. Renewal, 12 A.D. 3d 300, 785 N.Y.S. 2d 63 [1st Dept. 2004] ["the entire building has been subject to hotel stabilization, which requires a tenant to reside in a unit for six months before regulation is invoked ... "]; 204 West 73rd Street, LLC v. Hess, N.Y.L.J., March 17, 2004 at 20, col. 1 [Civ. Ct. N.Y. Cty. 2004] [respondent demonstrated that he was a "permanent tenant" upon showing that he "resided in the subject apartment as his principal residence for at least six months ... "]; Benjamin Shapiro Realty Co. v. NY State Div. Hous. & Cmty. Renewal, 2 A.D. 3d 220, 769 N.Y.S. 2d 226 [1st Dept. 2003] [a "permanent tenant" is an occupant who had continuously resided in a building for six continuous months, without any regard to whether the unit was exempt from regulation under various laws]; Park Summit Realty Corp. v. Frank, 107 Misc. 2d 318, 434 N.Y.S. 2d 73 [App. Term, 1st Dept. 1980] [the Appellate Term applies the defmition found in 9 NYCRR Section 2520.60], i.e. "one who has resided in a hotel apartment for a period of six months"]; Morris v. Cole, N.Y.L.J., April 5, 13 1989 at 22, col. 6 [Civ. Ct. N.Y. Cty. 1989] [tenant living in a SRO building for six consecutive months considered a permanent tenant.]). Branic mischaracterizes the holdings and applicability of these cases, which support the Appellate Division's finding that the only requirement to be a "permanent tenant" is occupancy of six months. B. The Definition of "Tenant" (RSC § 2520.6[ d]) Applies Only to Apartment Tenants and Must Be Read Separately from "Permanent Tenant" (RSC § 2520.6[j]) The Appellate Division correctly held that the Appellate Term erred in citing the definition of"tenant" (RSC § 2520.6[ d]) in finding a lack of an "express or implied landlord-tenant relationship" between Branic and Mr. Pitt to preclude him from becoming a "permanent tenant." The Appellate Division properly held that the two definitions must be read separately in finding: Nothing in the RSC mandates that these sections should be read together, such that a person must become a "tenant" before becoming a "permanent tenant." Rather, RSC § 2520.6(d) defines a "tenant" as "[a]ny person or persons named on a lease as lessee or lessees, or who is or are a party or parties to a rental agreement and obligated to pay rent for the use or occupancy of a housing accommodation." A hotel's "permanent tenant," on the other hand, by definition, is not necessarily a party to a landlord-tenant relationship, but merely a hotel occupant who has resided there for six months (Citing RSC § 2520.6[j], [m]). (R. 319). 14 The third sentence ofRSC § 2520.6G) states that "reference in this Code to 'tenant' shall include permanent tenant with respect to hotels." The Appellate Division correctly found: This language indicates that even though the eligibility criteria of a "tenant" and a "permanent tenant" are different, a hotel's permanent tenant is nonetheless afforded the rent stabilization protections under the RSC. (R. at 319). Contrary to Branic's assertion that the Appellate Division "ignored" the third sentence ofRSC § 2520.6G), the Appellate Division's findings are soundly supported and consistent with the provisions of the RSC and the tenets of statutory construction. The language of§ 2520.6G) explicitly provides that "reference in this code to 'tenant' shall include permanent tenant with respect to hotels." The reference to "tenant" does not demand that a person residing in a hotel first become a "tenant" as defmed by the Code. Such a reading would render RSC § 2520.6G) superfluous because if a person residing in a hotel was already a tenant, as defined by the Code, he would gain nothing by becoming a permanent tenant. (McKinney's Cons. Laws ofNY, Statute§ 98 [effect must be given to every part and word of a statute]). Rather, this sentence illustrates the drafters' intent to define "permanent tenant" differently from "tenant" without prejudice to permanent tenants receiving all protections of rent stabilization afforded to tenants set forth in the RSC. Reading § 2520.6( d) and § 2520.6(j) together, it is clear that one can 15 become a "tenant" either by satisfYing the defmition in § 2520.6( d) or by becoming a "permanent tenant" pursuant to § 2520.60).3 The Appellate Division held: Moreover, a close reading of the defmition of"hotel occupant" (RSC § 2520.6[m]) demonstrates that "tenant," under RSC § 2520.6(d), and "permanent tenant," under RSC § 2520.60), are not to be read together. The statutory language indicates that a "hotel occupant" shall not be considered a "tenant," but may be entitled to become a "permanent tenant" (RSC § 2520.6[m]). Hence, even if a person residing in a hotel has a landlord-tenant relationship with the hotel, that person may only become a permanent tenant, not a tenant. (R. at 319-320). Branic's contention that the Appellate Division failed to "harmonize" the first and second sentences ofRSC § 2520.6G) is without merit. If you read the sentences together they illustrate two distinct paths for a hotel occupant to become a permanent tenant: one by continuously residing in a hotel as a principal residence for at least six months, and the second by requesting a lease of at least six months. (RSC § 2520.60]). 3 Branic wrongly argues that other references in the Code to "permanent tenant" would be "unnecessary" with the Appellate Division's interpretation. Interestingly, Branic's references to certain sections of the Code do not support this contention and instead highlight the different treatment of apartment and SRO hotel tenancies that necessitate separate definitions for "tenant" and "permanent tenant." See e.g. RSC § 2521.3(b) (concerns the classification of a building as a hotel with regard to the provision of maid and linen services); RSC § 2522.5(a)(2) (a hotel occupant may request a lease and become a permanent tenant); RSC §§ 2522.5(c)(2) and (3) ("[f]or housing accommodations in hotels, each owner shall furnish to each person, upon registration, a Notice ofRights ... by DHCR ... " and "[u]pon complaint by the tenant, permanent tenant or hotel occupant that he or she was not furnished with a copy of the lease rider ... the DHCR shall order the owner to furnish the rider or notice."). 16 The Legislature created separate statutory schemes as applied to SRO hotel and apartment tenancies. The Hotel Stabilization statutory scheme includes the definition of "permanent tenant" in an SRO hotel, which is distinct from the defmition of "tenant" as it applies to apartment tenancies. Permanent tenancies in SRO hotels are created by operation of law and there is no language in either definition to indicate that they should be read together. This statutory scheme extends protections to persons whose occupancy may have begun as hotel occupants but are actually not of a transient nature. If Branic' s reading of the Code was correct, there would be no reason for the concept of"permanent tenant." Judge Lebovits' decision in this proceeding before the Civil Court explained that the legislative intent to create a separate statutory scheme for SRO hotels was a purposeful recognition of the distinct nature of hotel tenancies: To protect historically vulnerable and marginalized SRO dwellers, the Legislature created a separate category for permanent hotel tenants and defined this group differently from tenants of other types of buildings. Had the Legislature intended to treat both groups the same, there would be no reason for it to have created two separate definitions, one for "permanent tenants" of hotels and one for "tenants' of other dwellings. The Legislature determined that SRO dwellers need the extra protection afforded by "permanent tenant" status. It would defeat the Legislature's intent for this court to require from hotel tenants the same standard of tenancy required of tenants of other dwellings. (R. at 8). 17 It follows that the statutory scheme governing SRO hotel tenancies is more protective than the scheme protecting other rent stabilized tenancies based on the nature of this special type of housing and the population it houses. This different treatment is further reflected by the separate promulgation of annual rent orders for hotels and apartments by the New York City Rent Guidelines Board. Rent increases for SRO tenants set forth in Hotel Orders are historically significantly lower than apartment rent increases.4 This includes vacancy increases, which are rarely, if ever, granted to owners ofSRO buildings. (Id.). The RSC distinguishes "permanent tenant" from "tenant" in other contexts as well. (See e.g. RSC § 2520.6[m] [providing that a hotel occupant can become a permanent tenant by fulfilling the requirements of section 2520.6[j]]; §§ 2522.5[a][2] and [3] [imposing specific obligations on hotel owners when a hotel occupant requests a lease]; § 2524.2[c][3] [distinguishing "tenant" from "permanent tenant without a lease" regarding service of Golub notices]). If the Legislature had intended that only those who were already "tenants" could become "permanent tenants," it could have explicitly required this in the definition. Instead, the word "individual" is used to describe the person who may become a permanent tenant after meeting one ofthe criteria listed in§ 2520.6G). 4 New York City Rent Guidelines Board, Summary of Hotel Orders #1 through #43, http://nycrgb.org/downloads/guidelines/hotelorders2014.pdf. See also New York City Rent Guidelines Board, Summary of Apartment Orders #l through #45, http:/ /nycrgb.org/downloads/guidelines/aptorders20 l4.pdf. 18 The word "tenant" is used many times throughout the Rent Stabilization Code so the use of the word "individual" here contrasts with the many references to "tenant" in the Code. There is no reason to read "individual" as referring to tenants. Assuming that "permanent tenant" is a subcategory of "tenant" leads to a number of absurdities and redundancies, demonstrating that the Code should be interpreted otherwise. (McKinney's Cons. Laws ofNY, Book 1, Statutes§§ 141, 143, 231). For example, the definition of"Hotel occupant" (RSC § 2520.6[m]) clearly states that"[ a]ny person residing in a housing accommodation in a hotel who is not a permanent tenant" can become a pennanent tenant- that person need not first be a "tenant." This definition explicitly states that a person residing in a hotel who is not a permanent tenant shall be considered a tenant for the purpose of the Code. Ifthe Code were to be interpreted so that one must first be a "tenant" in order to become a "permanent tenant," it would be impossible for any "hotel occupant" (RSC § 2520.6[m]) to ever become a "permanent tenant," as this provision is intended to achieve, thus rendering superfluous the definition and all such references in the Code. This would clearly be an absurd result and the Code should therefore be read in a way as to avoid it. (See Williams v. Williams, 23 N.Y. 2d 592, 598 [1969]; People v. Santi, 3 N.Y. 3d 234, 242 [2004]; Long v. State of 19 New York, 7 N.Y. 3d 269, 273 [2006]; McKinney's Cons. Laws ofNY, Book 1, Statutes§§ 141, 143). Further indication that the Legislature intended the definitions to be read separately is that the laws have not been amended in light of numerous cases holding six months of continuous residence as the sole criterion of permanent tenancy. The implication is that the courts heretofore have interpreted this aspect of the Code as the Legislature intended. (See RKO-Keith-Orpheum Theatres, Inc. v. New York, 308 N.Y. 493, 500 [1955] ["If the practical construction of a statute is well known, the Legislature is charged with knowledge and its failure to interfere indicates acquiescence therein"]; Engle v. Talarico, 33 N.Y. 2d 237, 242 [1973]). The RSC § 2520.6U) provides a clear and simple definition of"permanent tenant." The statute's plain meaning requires continuous residence for a period of at least six months as the only criterion to obtain permanent hotel tenant status. There is no legal support or logical basis for reading the Code's definitions of "tenant" and "permanent tenant" together. Basic principles of statutory interpretation dictate that these definitions must be read separately. Thus, the Appellate Division properly applied the statute and its ruling is in harmony with statutory construction. 20 C. Payment of Rent is Not Required to Obtain Permanent Tenant Status· The Appellate Division correctly cited to Kanti-Savita Realty Corp. v. Santiago, 18 Misc. 3d 74 (App. Term, 2d Dept. 2007), in holding that the sole requirement to obtain permanent tenant status is continuous residence of six months or more, not the payment of rent. (R. at 318). The court in Kanti-Savita addressed the argument of partial rent payment as "without merit" and soundly held: "The Code's criterion is not the payment ofrent, but the continuous residence in the unit for six months." (Kanti-Savita, 18 Misc. 3d at 76 [Citing RSC [9 NYCRR] § 2520.6[j])] [emphasis added]). Brame mischaracterizes the court's holding in Kanti-Savita to create a nonexistent requirement of rent payment to obtain permanent tenant status. Branic also devotes a substantial portion of its brief to exploring the obligation of tenants to pay rent under RSC § 2524.1 as requiring the payment of rent to become a "permanent tenant." Branic confuses a tenant's obligation to pay rent with the criteria required to become a permanent tenant. There is no dispute that tenants have an obligation to pay rent pursuant to RSC § 2524.1. However, the statute is clear that the obligation to pay rent pursuant to section 2524.1 is an obligation to maintain possession, not a requirement to become a "permanent tenant" as defined by RSC § 2520.6G). 21 Further, section 2524.1 of the Code provides landlords with a cause of action for non-payment of rent, but it does not create a requirement to pay rent to obtain "permanent tenant" status. Branic cites to cases that support the intent ofRSC § 2524.1 to forbid the removal oftenants as long as they pay rent, however these cases do not stand for the premise that payment of rent is required to obtain permanent tenant status.5 The principle set forth in RSC § 2524.1 that prohibits the eviction of tenants -which for the purposes of the RSC includes "permanent tenants" -provided they pay rent does not require the payment of rent to become a permanent tenant. Although rent payment is not required to obtain pennanent tenancy rights, Mr. Pitt did pay rent. Mr. Pitt's rent was paid by HRA to Branic in the form of Public Assistance shelter allowance. (R. at 296). Mr. Pitt is no different from thousands of other Public Assistance recipients whose shelter allowance is sent directly by HRA to their landlord. Similarly, thousands oftenants receive subsidies paid directly by Section 8 administrators. Such payments by third parties do not 5 Branic cites to the distinguishable Gruen v. Patterson, 55 N.Y. 2d 631, 446 N.Y.S. 2d 253 (1981), which involves an apartment tenancy, not the creation of a permanent tenancy in an SRO, holding that "deliberate and repeated tardiness in rent paying" is not a reason to deny a lease renewal. Branic also cites to Park Summit Realty Corp. v. Frank, 107 Misc. 2d 318, 434 N.Y.S. 2d 73 (App. Term, 1st Dept. 1980), ajfd, 84 A.D. 700,448 N.Y.S. 2d 414 (1st Dept. 1981), aff'd, 56 N.Y. 2d 1025,453 N.Y.S. 2d 643 (1982), which held that a "permanent tenant" could not be evicted pursuant to the RSC provided he "continues to pay rent." The holding does not impose a requirement of payment of rent to become a permanent tenant. Branic' s reliance on Combined Ventures, LLC v. Fiske House Apt. Corp., 74 A.D. 3d 1119, 906 N.Y.S. 2d 568 (2d Dept. 2010), andNovickv. Hall, 70 Misc. 2d 641,334 N.Y.S. 2d 698 (Civ. Ct. N.Y. Cty. 1972), is also misplaced because neither case supports Branic's contention that the payment of rent is required to become a permanent tenant. 22 undercut tenancy rights of the recipient or create a landlord-tenant relationship between the agency making the payment and the landlord. Branic continues to mislead the court with false statements that Mr. Pitt did not pay rent. HRA paid a nightly rent of$65.00 to Branic on behalf of Mr. Pitt pursuant to the MOU. (R. at 297, 300). Branic also commenced an action against HRA in New York State Supreme Court seeking back rent for Mr. Pitt. (See Branic International Realty Corp. v. City of New York, 27 Misc. 3d 1222[A], 2010 N.Y. Slip. Op. 50845[U] [Sup. Ct. N.Y. Cty. 2010]). The MOU further provides that any Eligible Person referred to the subject building with a source of income must pay thirty percent of that income to the hotel Operator. (R. at 298). Eligible Persons, such as Mr. Pitt, receiving only Public Assistance, were not required to contribute toward their housing costs. (I d.) Mr. Pitt does not claim- nor has he ever claimed -that permanent tenants do not have an obligation to pay rent. The Appellate Division properly interpreted the plain meaning of the definition of "permanent tenant" as an individual who has continuously resided in an SRO hotel- regardless of the individual's payment of rent. This interpretation is consistent with the plain language of the statute in holding that Mr. Pitt was a permanent tenant because he undisputedly continuously resided in the subject SRO for more than six months. 23 POINT TWO THE APPELLATE DIVISION CORRECTLY HELD THAT THE SUBJECT SRO HOTEL WAS NOT EXEMPT FROM RENT STABILIZATION BECAUSE THE MEMORANDUM OF UNDERSTANDING BETWEEN HRA AND BRANIC DID NOT CONSTITUTE A LEASE Branic erroneously argues that Mr. Pitt's room was exempt from the Rent Stabilization Code pursuant to § 2520.11 (b), claiming that it was a housing accommodation leased by the City of New York. The Appellate Division properly found that Branic should not be permitted to rely on the MOU to support its arguments because it never made it part of the record below. However, considering the contents of the MOU, the Appellate Division correctly held that its terms did not constitute a lease. A. The MOU Did Not Surrender Absolute Possession and Control to HRA. The Appellate Division did not consider the MOU6 between HRA and Branic because Branic failed to produce it in the proceedings below. Nonetheless, the Appellate Division correctly found that the MOU was not a lease because it lacked "essential terms such as the precise number of rooms to be occupied and paid for by HRA." (R. at 321). The court held: [E]ven ifBranic were permitted to rely on the agreement, it was not a lease. The agreement does not show, by its own terms, "the surrender of absolute possession and control of property to another party for an agreed-upon 6 Branic repeatedly mischaracterizes the MOU as "the Facility Rental Agreement," a term not found in the MOU. 24 rental." (Citing Matter of Davis v. Dinkins, 206 A.D. 2d 365, 366 [2d Dept. 1994], lv. denied 85 N.Y. 2d 804 [1995]). (R. at 321). In Matter of Davis v. Dinkins, 206 A.D. 2d 365 (2d Dept. 1994) lv. denied 85 N.Y. 2d 804 (1995), residents of Queens sued the City alleging, inter alia, that it had leased rooms in a hotel and then used those rooms to house homeless families. The plaintiffs argued that the City was required to follow the Uniform Land Use Review Procedures ("ULURP") to first determine the impact that housing homeless families at the hotel would have on the community. The court found that no such lease existed because "there was never any agreement or obligation to rent any particular number of rooms, nor was there any agreement or obligation to rent for any particular time period." (I d., at 367). The cowt in Dinkins found that the central distinguishing characteristic of a lease is the surrender of absolute possession and control of prope1ty to another pmty for an agreed-upon rental. The agreement between the City and the hotel owner in Dinkins bears a striking similarity to the MOU between Branic and HRA in that there was no surrender of absolute control and possession of the property. Here, the MOU between HRA and Branic contains numerous terms that illustrate that HRA exercised no dominion or control over any portion of the hotel and had no day-to-day physical presence at the hotel. Most significantly, the MOU recognizes the Operator's right to maintain eviction proceedings against an 25 individual Eligible Person believed to be a threat to the Operator's employees or guests. (R. at 299). Only landlords and persons with a possessory interest in a premises have standing to commence eviction proceedings. (RP APL § 721 ).7 A party must have both a "privity of contract and a privity of estate" to be entitled to a possessory judgment from the court. "The first rests upon the terms of the agreement between the parties - the second upon the interest in the real property leased." (New Amsterdam Casualty Co. v. National Union Fire Insurance Co. of Pittsburgh, Pa., 266 N.Y. 254, 259 [1935]); see also I & T Petroleum Inc. v. Lascalia, 22 Misc. 3d 1118[A], 2009 N.Y. Slip Op. 50173[U] [Sup. Ct. Nassau Cty. 2009]; Damaro Rest. Group, LLC v. Gazette Realty Holdings, LLC, 21 Misc. 3d 1131(A), 2008 N.Y. Slip Op. 52290[U] [Sup. Ct., Westchester Cty. 2008]). If the MOU had in fact been a lease Branic would have clearly lacked standing to maintain an eviction proceeding against BRA-referred Eligible Persons. The MOU also charges Branic with compliance with "laws and regulations affecting the rights of tenants" (R. at 299) and to guarantee the "confidentiality of the records and infonnation of Eligible Persons referr-ed to the Facility by HRA." (R. at 299). Further, the MOU holds Branic responsible for providing appropriate furnishings to Eligible Persons, maintaining security services, maintaining the 7 RP APL § 721 provides an exception for certain not-for-profits and tenant associations in City- owned buildings with appropriate authorization to maintain proceedings, neither are applicable to Branic. 26 habitability of the common areas and rooms and providing Eligible Persons with hotel services, including regular changes oflinens, and the distribution to towels, soap and toilet paper. (R. at 298-299). Branic's continued control and possession over the premises is further illustrated by its obligation to cooperate with HRA, the Department of Health and the Department of Housing Preservation and Development ("HPD") when those agencies sought to inspect "the Facility and dwelling units assigned to referred individuals" and to remove "deficiencies" resulting from those inspections. (R. at 298). IfHRA had "exclusive control" of the portions of the hotel occupied by . referred Eligible Persons there would be no need to rely upon Branic to provide access for inspections. The difference between the MOU and a lease is made even more appaTent by comparing Dinkins with the holding in Women's Interart Center, Inc. v. New York City Economic Development Corp., 97 A.D. 3d 17 (1st Dept. 2012). There, plaintiff Women's Interart Center ("WIC''), a non-profit cultural organization, leased premises from the City of New York for its cultural program. Subsequently, the City entered into a "net lease" with another entity, Clinton HDFC, for premises including that which was leased to WIC. Clinton tenninated WIC's lease and commenced a holdover proceeding to obtain possession. WIC then commenced an action seeking declaratory and injunctive relief claiming that the agreement 27 between the City and Clinton was merely a management agreement and not a "net lease" as the agreement was denominated by its terms. In determining whether the underlying agreement was a net lease or a contract for management services, the court in Women's Interart Center examined its content to discern what interest the parties intended to pass. The mere fact that the agreement is referred to as a "net lease" does not transform it into one. Rather, the court must look to the rights and obligations conferred by the agreement to determine its true nature. (Id., at 21). The Appellate Division found that the critical question in determining the existence of a lease establishing a landlord-tenant relationship is whether exclusive control of the premises has passed to the tenant. A landlord-tenant relationship is established with transfer of control, even though the use is restricted by limitations or reservations. Upon reviewing the record, the Appellate Division in Women's Interart Center found that no genuine issue of fact was presented regarding exclusive control and held that Clinton was granted sufficient control to give rise to a landlord-tenant relationship. The terms contained in the "net lease" at issue in Women's Interart Center demonstrated that Clinton had exclusive control and possession of the leased premises. Similar to a typical commercial net lease, the agreement imposed responsibility to Clinton for all expenses arising from the property, including the costs of repairs of every nature, utilities, insurance and the cost of leasing a portion 28 of the premises to residential and commercial tenants. In addition, Clinton was granted sole authority to maintain legal actions against month-to-month tenants, like WIC, for the collection of rents and evictions. B. The MOU Lacked Other Essential Elements of a Lease The court in Dinkins held that essential terms -in addition to the smTender of absolute possession and control of property to another party- must be agreed upon for an agreement to constitute a lease including: (a) the area to be leased, (b) the duration of the lease, and (c) the price to be paid. If any of these essential terms are missing and are not otherwise discernible by objective means, a lease has not been created. (Dinkins, 206 A.D. 2d at 366-367). The MOU between HRA and Branic is largely identical to the agreement in Dinkins for these reasons as well. Neither the MOU nor the agreement in Dinkins describes the area to be leased, states the length of the tenn agreed upon, and neither is discernible by objective means. (R. at 296-304). Here, as in Dinkins, there was never an agreement or obligation to fill any particular number of rooms or any particular or specifically identified rooms. (R. at 297, 300).8 In both cases the City agreed only to "refer" eligible homeless persons or families to the hotels 8 Unlike the agreement in Bernstein v. 1995 Associates.l85 A.D. 2d 160, 586 N.Y.S. 2d 115 (1st Dept. 1992) cited by Branic, it is impossible to discern the price to be paid over the expected two year term of the MOU since neither party has expressly committed to offer or fill any rooms. Therefore, like the agreement between the City and the hotel in Dinkins, the MOU between HRA and Branic is not a lease and does not create a landlord-tenant relationship between them. 29 for the occupancy of a maximum nwnber of rooms. In both cases, the City made no commitment to fill all of the rooms set aside or any of the rooms, (R. at 300) and the City was under no obligation to make payment for rooms which were not occupied. (R. at 300). Similarly, neither hotel was under any obligation to keep any nwnber of rooms available for referred homeless persons or families. The MOU only identifies a maximum number of rooms be set aside. (R. at 297). In each case homeless persons or families were required to "register" upon arrival at the hotels, (R. at 297) as would any other guest at a hotel, and in each case HRA paid housing assistance funds directly to the hotels on behalf of referred Eligible Persons. (R. at 296-297). (Dinkins, 206 A.D. 2d at 366-367). Here, as in Dinkins, the individuals and families were charged only for the number of days that they actually stayed in a room, and not a monthly rate. Branic makes much in its briefthat it was "required" to admit to the hotel any Eligible Person referred by HRA and that their failure to do so could result in the tennination of the MOU by HRA. (R. at 301). This requirement and possible consequence, however, were more illusory than real. Branic was free to refuse to register an Eligible Person after "consultation" with HRA or in the event of the "unavailability of an appropriate dwelling unit." (R. at 301). This provision seems more designed to prevent impermissible discrimination against referred Eligible Persons seeking emergency housing accommodation than a strict prohibition. In 30 any event, because the MOU did not obligate Branic to set aside any particular number of rooms (as long as that number did not exceed 134 ), Branic was apparently free to determine the number of rooms it would "set aside" at any given time. Further, HRA was never obligated to refer anyone to the hotel and either party could tenninate the MOU upon thirty days notice. (R. 300-301). Thus, Branic could never rely upon the MOU continuing to produce revenue. Other terms in the MOU also illustrate that it does not constitute a lease. Article 3(B) ofthe MOU refers to shelter allowance payments made by public assistance on behalf of the referred Eligible Person and not rent for space leased by HRA. (R. at 301). Article 3(B) reserves HRA's right to withhold payment under the "Spiegel Law," Social Services Law§ 143-b, which authorizes public welfare departments to withhold payments for individuals or families made directly to the recipient's landlord where violations exist in the building occupied by the recipient that are dangerous, hazardous or detrimental to life and health. The Spiegel Law would have no application if HRA were leasing the premises directly from the Operator. Branic's tortured argument that the MOU somehow creates a "future interest" held by HRA in some set of rooms within the hotel is unpersuasive .. HRA need not refer any Eligible Persons to Branic and Branic need not set aside any particular number of rooms for HRA "referred Eligible Persons" so long as it does 31 not set aside more than 134. Thus, conspicuously absent from the MOU is any description ofthe area to be leased or length of time any specific room will be occupied, and neither can be discernible by objective means. (Dinkins, 206 A.D. 2d at 367). C. The Contents of the MOU Support Mr. Pitt's Status as a Rent Stabilized "Permanent Tenant" Although the Appellate Division held that Branic should not be permitted to rely on the MOU, the court correctly held: [E]ven ifthis Court were to consider the agreement, the terms clearly belie Branic's arguments against Pitt's "permanent tenant" status since the agreement states that an Eligible Person can become a permanent tenant and that Branic may not evict such a person without cause and notice to HRA. (R. at 322). Branic refuses to address the rights of a referred Eligible Person to obtain permanent hotel tenant status as set fmih in the MOU. Article 1 (J) specifically refers to the rights of a referred Eligible Person to become a permanent tenant and cites to RSC § 2520.6(j). (R. at 299). 32 POINT THREE BRANIC'S POLICY ARGUMENT THAT THE APPELLATE DIVISION'S DECISION WILL HAVE A "CHILLING EFFECT" ON LANDLORDS' WILLINGNESS TO PROVIDE EMERGENCY HOUSING IS UNAVAILING Branic's assertion that under the Appellate Division's decision the City will no longer be able to contract with landlords to house the homeless is unavailing. Branic, in effect, urges this court to ignore the plain meaning of the law because of a perceived public policy that private landlords need to be incentivized to house the homeless. Rights conferred by law, however, "may not be granted or withheld by our courts 'at the pleasure of the judges, to suit the individual notion of expediency and fairness."' (Mertz v. Mertz, 271 N.Y. 466, 471 [1936]). The court went on to state: Law written in constitution or statute is fixed. The courts must interpret the writing; they may not disregard the law as written. Its validity does not depend upon whether the public policy behind it is strong or weak, sound or unsound. It must always control judicial decision. Only the unwritten law resting upon judicial precedent is plastic. There, in reaching decision, the courts must, at times, fonnulate a new rule of law where statutes or earlier decisions furnish no sure guide. How far judicial decision then may be dictated by individual notion of expediency and justice has been the subject of much discussion. Upon one point all agree. The courts must always endeavor to apply to the facts of a particular case a general rule of law which they find expressed in statute or judicial decision or which they formulate to meet new conditions; and even in formulating a rule individual notion of public policy may be given effect 33 only where the court finds that its notion of public policy is so generally held and so obviously sound that it is in fact a part ofthe law of the State. [Citing Restatement of Law of Conflicts of Laws, § 612]. (!d., at 471-472). Branic further ignores the public policy behind RSC § 2520.6(j) in creating the status of a "permanent tenant" to prevent unscrupulous owners of SRO hotels to deny a hotel occupant the protections of the Rent Stabilization Code. Branic could argue that all laws that protect tenants of SRO buildings discourage owners from admitting any person to their rent regulated hotel for fear they may become permanent tenants. That would, of course, lead to courts selectively enforcing or re-writing laws to fit every conceivable set of facts to come before them. Branic's contention that the Appellate Division's decision would permit a "squatter" to become a pe1manent tenant upon gaining access to an SRO room and occupying it for six months is not based in reality. (App. Brf. at 46). Branic's speculation assumes that a hotel owner would permit squatters to remain in occupancy for six months without taking action. This is an unlikely example and borders on the absurd. SROs, such as those operated by Branic, are required to have resident staff including "a competent manager living on the premises" and "a competent watchman in charge of the dwelling," "on the premises at all times." (See Mult. Dwell. Law§ 248[15]). 34 POINT FOUR THE APPELLATE DIVISION CORRECTLY HELD THAT THE APPEAL PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE IT IS "AN ISSUE OF SUBSTANTIAL PUBLIC INTEREST THAT IS LIKELY TO RECUR AND EVADE REVIEW" The issue on appeal- what constitutes a "permanent tenant" of an SRO hotel as defined in the RSC § 2520.6G)- is not rendered moot because Mr. Pitt voluntarily vacated the subject premises prior to perfecting the appeal because it "presents an issue of substantial public interest that is likely to recur and evade review." (R. 316-317). A long line of cases supports the proposition that an appeal should not be dismissed for mootness "when the underlying questions are of general interest, substantial public importance and likely to arise with frequency." (Concord Realty Co. v. New York, 30 N.Y. 2d 308, 312-313 [1972]; see also Gold v. Lomenzo, 29 N.Y. 2d 468, 476 [1972]; East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y. 2d 129, 174 [1966]; People ex rel. Guggenheim v. Mucci, 32 N.Y. 2d 307, 310 [1973]). An appeal also should not be dismissed as moot "[w]here a novel, and important question of statutory construction is presented, which is likely to recur." (Le Drugstore Etats Unis, Inc. v. New York State Ed. of Pharmacy, 33 N.Y. 2d 298, 301 [1973] [citing 330 Restaurant Corp. v. State Liquor Authority, 26 N.Y. 2d 375 [1970]). 35 Claims of permanent tenancies in rent stabilized SRO units pursuant to RSC § 2520.6G) are common in Housing Court and affect large numbers of tenants throughout New York City. Further, there is a "likelihood of repetition ... among other members of the public." There are thousands of rent stabilized permanent tenants living in SROs throughout the City who would have been adversely affected by the Appellate Term's erroneous reinterpretation of"permanent tenant" as defined by§ 2520.6G) of the RSC. This appeal also is a "phenomenon typically evading review." The vast majority of low-income tenants- who are largely uninformed about their rights - are usually unrepresented in eviction proceedings in New York City,9 and thus the underlying issue is likely to evade review. Finally, the Court of Appeals has held in declaring an appeal not to be moot that the importance of rent regulation itself demonstrates that issues affecting it are of"paramount public importance." (Concord Realty Co. v. New York, 30 N.Y. 2d 308, 314 [1972]). The Appellate Division correctly held that the appeal was not moot because the Appellate Term's significant reinterpretation of the Rent Stabilization Code raised an issue of substantial public importance, with a likelihood of recurrence that will typically evade review. 9The Task Force to Expand Access to Civil Legal Services inN ew York, 2013 Report to the Chief Judge of the State of New York, p. 20. https://wv.'W.nycourts.gov/ip/access-civil-legal- services/PDF /CLS-TaskForceReport 20 13.pdf. See also, id., 20 I 0 Report to the Chief Judge of the State ofNew York, Executive Sununary, p. 1, which stated that "99 percent of tenants are unrepresented in eviction cases in New York City." https://www.nycourts.gov/ip/access-civil- legal-services/PDF /CLS-TaskF orceREPORT .pdf. 36 The interpretation of what constitutes a legal tenancy as defmed by "permanent tenant" in the Rent Stabilization Code at issue in this appeal is of general interest and substantial public importance. It is also much more likely to recur with frequency based on the sheer number of SRO residents in New York City and the prevalence of this issue in Housing Court litigation. Approximately 25,000 people live in SROs in New York City. The Rent Stabilization Code was enacted in response to a legislative fmding of a "serious public emergency" in regards to housing due to an "acute shortage of dwellings, which creates a special hardship to persons and families occupying rental housing." (NYC Admin. Code§ 26-501). Citing to the RSC § 2520.6(d), which defmes "tenant," as a precondition to obtain pennanent tenancy rights, the Appellate Term's decision in effect eliminated the category of "permanent tenant" in its holding by finding that a hotel occupant must be a "tenant" (RSC § 2520.6[ d]) before becoming a "permanent tenant." (R. 329). The Appellate Term's decision was contrary to the Legislature's intention to provide distinct protections under the Rent Stabilization Code to historically vulnerable hotel occupants who wished to become permanent tenants (rather than transient occupants) in the rooms that they often already occupied. In addition, it brings the SRO permanent tenant within the other protections provided in the Rent Stabilization Laws and Code. 37 At issue in this appeal is the plain meaning of a statute that was intended to protect a vulnerable population of marginalized tenants which effects have already been felt. After the Appellate Term's decision and prior to the Appellate Division's decision reversing it, we are aware of Housing Court cases in which the court imported the "express or implied landlord-tenant relationship" into the definition of "permanent tenant" and followed the reasoning of the Appellate Term's decision by reading the definitions of"permanent tenant" and "tenant" together. We know of at least two Appellate Term decisions that cited to the Term's decision in support of the proposition that absent an express or implied landlord- tenant relationship, a hotel occupant cannot qualify as a "permanent tenant" entitled to protections under RSC § 2520.60). (See 1234 Broadway LLC v. Pou Long Chen, 938 N.Y.S. 2d 228 [App. Term, 1st Dept. 2011]; Chelsea 139 LLC v. Saunders, 936 N.Y.S. 2d 57 [App. Term, 1st Dept. 2011]). At least one additional Civil Court decision, Lee v. James, N.Y. Civ. Ct. N.Y. Cty. Index No. 61186/10 (May 31, 2011) (N.O.R.), cited the Appellate Term's decision in Branic for the same proposition and for the proposition that "so long as the occupant came into possession under a license from a third party, there is no protection under 9 NYCRR § 2520.60)." These decisions are contrary to the plain meaning ofRSC § 2520.60), which requires six months or more of continuous residence to obtain tenancy rights in a particular hotel building. 38 The current state of SRO housing is dire and the importance of protecting SRO tenants is more critical than ever given the sustained housing crisis in New York City and the pressures of redevelopment and conversion of SRO units. Significantly reinterpreting the Rent Stabilization Code could hasten the current alarming loss of affordable SRO units, thus making it a matter of substantial public importance. 39 CONCLUSION The Appellate Division correctly held that Mr. Pitt was a "permanent tenant" because he undisputedly continuously resided in the subject SRO hotel for more than six months. The Appellate Division's order is in harmony with the plain language ofthe statute and long-standing case law and it should be affirmed. Dated: New York, New York February 7, 2014 40 ~~ Goddard Riverside SRO Law Project Attorneys for Respondent-Respondent 51 West 109th Street New York, New York 10025 Tel.: (212) 799-9638 IDENTICAL COMPLIANCE OF BRIEFS CERTIFICATION It is hereby certified that the Respondent's Brief which was filed electronically (by CD-Rom), February 10, 2014 is identical to the Respondent's Brief being filed physically with the New York State Court of Appeals. Dated: February 7, 2014 NIARTHA A. WEITHMAN, ESQ. GODDARD RIVERSIDE SRO LAW PROJECT 51 West 109'h Street New York, New York 10025 Tel: (212) 799-9638 Fax: (212) 721-1514 mweithman@srolaw.org \ Ifthe court is to excuse respondent's failure to collect rent from its affiliate East Broadway Medicallv!ana~ement, l19Wt;:vei, and -attribute ·that loss to respondent, ·the .court also must consider the $28.164.00 in income East Broadway Medical Management generated from its sublease with SIU as attributable to respondent. In faCt respondent cOncedes as much, given the close .re'lationShip between respondent and East Broadway Medical Manageuient. F. Interest Since damages awarded in. an action for breO:Ch of contract ot fot interfering with enjoyment of a property interest are intended to return the il\iured party to the pomt when the breach or interference occurred, damages, including the. mterest that would have accrued, ordmat'ily are ascertained as the date of U10 breach, CPLR SOOl[a] and [b); Siegel v. Laric Elltertainment Corp., 307 AD2d 861, 862-63 [1st Dept 2003]; Lager Assoc. v. City of New York, 304 AD2d at 723; Brooklyn Union Gas Co, v. Mac(!regor 's .Custom Coach, 133 lv1isc2d at 583. Here the breiich o:f the lease and interference with responde11t's enjoyment of the leasehold occurred, and. the damages were incurred, over a 42 month period from January 1998 .to June 2001. While CPLR 5001[b] authorizes interest to "be computed upon each item from the date it was inci.irre9'" where Hd-amages were incurred at various times,"- the statute also authorizes the computation in· -these circumstances to -be "upon all of the damages from a shlgle reasonable intermed_iate date." See. Rose Assocs. v. Le1tQx Hill Hosp., 262 AD2d 68, 69 [1st Dept 1999]; Lager Assoc. v. City of New York, 304 AD2d at 723; Robert Half Inti. v. Jack Va/ellline, Inc., 157 Misc2d 318, 321 [Civ. Ct. NY Co. 1993]. Therefore the court computes tl1e interest on damages for the period when they are reduced by limited subletting income, 1998, from the midpoint of that period, July 1, !998, and the interest on damages for the remainder of the 42 month breach from the midpoint, App1l, 2000, of that remaining period, January 1999 to}une 2001. Lager Assoc. v. City of New York, 304 ADid at724. lY. THE FINAL AWARD Based on the evidence and the applkable law delineated abovei respondent•s total damages -are Calculated .as follows. · i;'Otal1oS_t ·gross in·come fot-42 ri1ohtl1S1 Jan_uai)i 1998 · June 2001, without reduction for subletting income actually generated: $2,772,000.00 ·Expenses necessary to· prodUce -the income during January 1998 ~.June 2001: Lease payments for equipment arid furnishings: $384,802.31 Insurance and accounting services: ~ 14,463.75 Capital expenses: $37,346.79 Tojal expenses: $436,612.85 Total lost profits for January 1998 ~June 200i, without reduction for subletting income generated: $2,772,000.00. $436,6)2.85 = $2,335,387.15 32 HCR 181 Lost profits for the 12 months of 1998, without reduction Jor subletting income generated; 12142 x $2,335,387.15 = $667,253.25 Reduction for subletting jncofu,e in 1998: $667,253.25- $28,164.00 = $639,089.25 Lost profits for the remaining 30 months, January 1999 • June 2001: $2,335,387.15 - $667,253.25 = $1,668; 133.90 The court thus awards respondent a judgment on its counterclaim of [I] $639,089.25 with interest from July I, 1998, and [2] $1,668,133.90 with interest from April!, 2000. Respondent's judgment is offset by the judgment awarded to petitioner April 26, 2002: [1) $8,333.32 per month in rent for 18 months, January 1998 through Jt~ne 1999, reduced by an $8,700.00 payment, for a total of $141,299.76, with interest from the midpoint, October I, 1998, of the dates rent wa:;. due on the first of each month, and [2) $10,000.00 per month in rent for 20 months, July 1999 through February 2001, or $200,000.00, with interest from the midpoint, May l, 2000. This decision constitutes the court's order and judgment. })}}}A{{{([ 204 W. 73rd St. LLC v. Hess, 32 HCR 181A, NYLJ 3/17/04,20:1, HCR Serial #00014204 (Civ 1'-.'Y Fiorella) NOTES: Index topics: Hotels; leases; occupants; piimary residence; rent; RP APL §711; RSC §2520.6, §2520.6UJ, §2520.6[m), §2522.5, §2522.5[a][2]; tenancy. Facts: In a hotel, an apartment was vassed from one to another tenant. All of!he payments tendered by the ultimate tenant were accepted by the landlord. D-igest .notes; >101 Hotels > 166 Tenants * 2 * -Permanent ienaD.t Acc_ep_tanCe rifr-erit froin hOtel room occupant held to make his a permanent tenant. >101 Hotels Held operator . ofhotel cannot require a guest to be a nonpnmary resident. :>1431 Priinary Residence • 24 * Proof: Ongoing substantial physical nexus Held by irnplicatioh primary residence is properly shown by ongoing, substantial, physical nexus with the controlled premises for actual living purposes demonstrated by objective emj>iriGal evidence. · >101 Hotels >166 Tenants ·* 2 * Permanent tenant Request!)[ a lease held sufficient to make a hotel tenant a pennaneut tenant. >1425 Primary Residence* 17 *Proof: Burcten of proof Landlord held to have burden of proving nonprimary residence. Commentary: See'Edftor'$. Coimmflitmy in the back of this vohime. History: No preVious .HCR report indicated. For additional cases, consul~ tlJe·volutne index,-the_ Co_q:;_dfjda~ed Index~ thcflCR-Dtgestl~t and 211d orLTAR and its Digests. Copynght 2004, Treiman Publications Corp. Iii!} 32 HCR 182 Decision Petitioner instituted this holdover prOCeeding alleging that respondent undertenant~ D.3.Vid Slriter, does not reside in -the sn!Jject- premises ils his primary reSideitc"e or respondents have allegedly sublet the subject apartment to undertenant, David Slater. Respondent contends that he-has resided in the subject premises since September 1996. The sOle issue for determjt_iatiOri is whether the respondfm·t~ David Slater, falls within the purview of Section 2522.5 of tl1e Rent Stabilization Code which outlines the procedure for an occupant of the subject premises to become pernjanent tenant. To this is~l).e tbe court responds jn the affirmative. Salient Facts Respondent testified that he col11!llertcedoccupancy in Apartment 701 located at 240 West 73rd Street iu September 1996. He states that he is the sole occupant of the :aP~lrtinent. He asserts that prior to his occnpanc'y, the respondent Ifes-~ and Hess-Rubenstein vacated the premises sonietime before 1994. Robert Broadman's name was added to theleasein the latter part of 1994 with the consent of the former owner. Robert Broadman vacated the premises in late August or early September 1996. He advised Mr. Slater of the vacancy and suggested that Mr. Slater assume occupancy. Mr. Slater testified that . Mr. BrOadman made all the necessarY arrangements for his occupa11cy. Mr. Slater tendered his rent checks [money order] for September rent which was accepted Without question and fonnally commenced Occupanc_y. Until June I 997 the building was managed by }felmsley-Spear. · · In March 1999 a stipulation ofsettlement was entered between 240 West 73rd Street LLC and Esther Hess, Ludwig Hess:Rubenstein formally surrendering any possessory rights of ti1e apartment to the petitioner. ·since neither ESther ·Hess nor Ludwig Hes_s_,:Rub_enstein lutd previouSly occupied the premiseS cOntemporane.otJsly -Wit!t David Slater this agreer1!eht should simply be construed as a formal surrenderor their rijlhts tn apartment 701. It is unclear at the time ifthe execution ofthe stipulatimr which One o_f the respondents Mr. Slater represe!!te_~ ·since -hiS -name appears on the dOcument as_ atknney for ieSp_Ondf:nt It was not until May 16, 1997 that the former owner, Corti.mitnder_As·sqc;iates Conipally, notified all tenants that the owner~hip of the building \Va~ transfem:d to . the petitioner herein 204 West73rd Street LLC. In July.oftliat same year PMG Realty Management, Inc. became the Managing Agent of the building. At that time a letter of correspondence was forWilrded- to Esthe:r Hess indicating that Mr. Slater's check could not be -aCcepted sinCe the issuer's namJ! does hot appear in the lease file. Y -ct, \Vhen the. above mexitioned stipulation was executei:t ·it certai:Uly beccimc eVident Umt the true occupant of the a:partmt:mt #701 was David Slater. That stipulation should have placed petitioner on Notice that neither of the above mentioned respondents ever occupied the apartment from September 1996 through March 1999. The prior occupant to the apartment \Vil.S Robert Broadm,an. In May 1994 a letter of correspondence to Esther Hess by the Management Company alleged that she was not the tenant of record and thatshewas illegallysubletting the apartment. On or about May 15, 1994, Ms. Hess requested Ms. Cronan of Walter, Malloy &. Con1pany to add Rob.ert Broadman to the lease for apartm.ent 70L Thus, it is evident that prior to May 1994, Esther Hess no longer resided in the apartment. The so ordered stipulati06 pf March 26, 1999, before Han. Oymin Chin, Housing Part, finally determined that David Slater was the remaining tenant in apartment 701. The record keeping by the prior management companies was not entirely accurate. Respondent further testified that all hiS rent checks were accepted and credited tO his account or apartment 701. Alternatively, he stated that four of his checks with his office address were deposited in a loclc box and ne.goilated within one or two days. Respondent further states that all checks from December 1996 through May 1997 payable to Helmsley-Spears in fact were nego'tiRted. Respondent's business checks payable to NYNEX for telephone service from November 1996 through March 1997 were also negotiated. ThUs, with the pemlission and assent. by the foirrier managing agent's represent&tive _and the clerk at the Concierge desk, all checks including _two mohey orders were negotiated, thus establishing _ltis right tO a ·-rent stabilized lease as a hotel resident. Respondent -cofrip]ains by correspondence dated July 22, !997 to Ms. Gonzales, PM Realty Management, Inc., about the intrusive investigation in detennining whether he is the legal tenant of apartment 701 and requests that a Written lease be issued in his name. Section 2522.5[a](2] of the Rent StabiliZation Code provides that a hotel occupant may only be protected by rent stabilization if he or she becomes a peirriaU_ent -tenant. An Q~cupo.n.t who has Jl~Wet bad a lease may at any time dUring llis_-Or her Qccupancy ,request a lease and the owner muSt~- within 1:5 days_ after ·such -request,- _gratit a lease Commencing on the date such_ requeSt was nlade at a rent whicl! does not exce.ed the legal regulated .rent for a term of at least siX n10nths. ·The_ hotel occUpant wl1o reCJ.ti<~sts such _a lease becomes a permanent tenant but the lease need not be re·newed. The oiVner ~hall not, tlrrough arty action 01: in·action, pr~Vimt. stich occupartt from _becoirtjng a perrnanenltenaht. In addition, no owner shall compel any ·person to .rent as _a hotel oCcupant oi' require a -hotel occupancY upon registrationT to represent or agree that the hOuSing aCcommodation will not be used as a principal iesideitce, or Will, be ·used for commercial or professional purposes when in fact .t4e houS_in_g accommOdation is to bt;! used solely for rcsideritial purposes. Discussion The petitioner-argues that there was no evidence of any rental agreement. No \Witten agreement need be: executed befol:'e ·assuming occup·ancy of the apartment. Presumably an individual Can moVe intO the apartment wiU1 permission and wlthin 48 hours innnediately request a lease for the apartment. RespOndent paid his September rent to the builcling's front desk and was then pennitted to take For additional Cases, consult the volum·e index,- the Consolidated IndeX, the HCR Digest IsJ and 2t(11 or LTAR and its Digests. Copyright ,2004, Tre,blt(11i Pubticalions Corp. ,, i occupancy. His mail thereafter -was delivered to a mailbox in ihc Iooby tbathad hisname and apartment numb.er [701] o:n it. Aftef he moved in, the builDing's tnanagement pt1t_~is name on the mailbox. Respondent also -paid his October and November 1996 rent in person by money order n't the front desk. A review of U1e .trial record clearly disCloses tl1at reSpondent Slater has occupied the premises since September 1996. Many ofthe indicia and services nonnally assoc.iated with a hotel resident are present iu this case: Le,, acceptance of monthly rent including rent checks deposited in a lock box; responding to work order forms th8t respondent signed aS_ "-tenant of apartment 70 I"; providing respondent with hotel maid service, receivin'g packa·ges, deliveries and laundry; ~nnoiti:tcing from the frOnt deSk-via intercom guests visiting respondent. Prior to June 19.97--the prioi mVner voiced no objection to res-pondents • tenaricy. While respondent's testimony evinced a degree of inconsistency, the aberrations do not prove that respOndent wa:s not residirig in the premises for the length of titri6 asserted by him. Mr. Slater stated that after moving into the apartme1it in Sept~mber 1996 he did not reside in anyplace other than the subject apartment. Applicable Law At trial the evidence submitted by respondent clearly meets the test of showing "ongoing, substantial, physical nexus with tl1e controlled premises for Uctual living purposes ... dernonst.rated by object'ive empirical evidence. [Cox ''· J.D .. Realty Associates, 217 AD2d 179, 184]. Respondent's testimony is buttressed by the_subJ!lission of his telephone records and cashed checks, utility bills, bank record~ and passport identificatiOn. Petitionef's argument that respondents' delay in insta1ling a phone in his name ls inconsequential. Petitioner did not introduce evidence which would support their contention .of noi.iCdntiuued occupancy from September 19.96 through the present. On the. contrary, reSp?_ildent's_ testlmo~~y. a_nd documenta9'. __ ·evldeiwe demonstrate his claimed residency since S~ptemberl996. Contrary to petitioner~S irg_ument; there was -no ·subterfuge on .the part of respondent. His residency wasknownby the prior owner. If-there was serious objectioti_to his' residency, then the piior owner had more than ampiC -time :to-utic_cwer any artifiCe as Contended by the petitiOriet~ her_Cin:_ These records deafly show an acceptance of -respondent's rent checks without any inquiry. A "Hotel Occupant" is defined pursuant to §2520.6[m] as follows: [m] Hotel Occupant. Any person residing in a housinj< accommodation ii~ a hotel who is not a pennan.ent .tenant. Such person shall not be considered a tenant for the purposes of this Code, but shall be entitled to become a permanent tenant as defined in subdivision UJ of this section, upon compliance with the procedure set forth in such subdivision_ The Rent Stabilization Code §2520.6[m] mandates that Hotel Occupant "shall be entitled to become a pem1anc.nt tenant'' upon compliance -with the procedures 32 HCR 183 set forth in RSC §2520.6. This means that he must either f-~jde continuously at the holel aS :his principal residence for a period Of si~ _mOnths; ol' ·ask for- a :lease. Section 2520.6[J] of the Rent Stabilization Code defines a ''Permanent Tenant"-jn relevant part: [J] Permanent Teitant. -For houS'ing accOmmodations located in hotels, an individual ... w])o [has] coutinuously ·resided in 1he same bUilding as .:a principal residence fof a period of at least six months. In addition, a hotel ocCUpant \VhO rCqtiest a lease of six months or more pursuant to section 2522.5[a](2] of this Title ... shall be il permanent tenant eVen if actual occupancy is less than Six months. Unless Otherwise specified, reference in this Code to 11tenant" shall include "permanent" tenant with respect to hotels. [emphasis added]. The respondent demonstrated at trial that he is a "permanent tenant1' as defined by the statute. Res_p~ndent established sufticient documentary evidence that he continuously resided in the subjeCt _apa:rtm(mt as .ltis p!intipal r_esidence for at least six months commencing in September 1996. By his correspondence, dated July 9, 1997 and July 22, 1997, respondent mode two written requests for a lease from the landlord. The statute does not require anything more to become a "permanent tenant.'~ Indeed, under the stah.Jte there· is no other means mentioned by which a hotel occupant cah establish that he is a "'permanent tenant.'~ There is· no requirement under the existing statutes that hotel occupant be offered a written lease prior to his or her occupancy. So long as the basic ininimum requifement of occupancy is met, respondent is entitled to a lease in his name. The fact tl>at respondent had resided in tiie apartment for more than six months, his correspondences on July .9 and July 22 requesting a written lease deatly qualities him as a pennanent tenant [See, Nutter v. W & J Hotel, 171 Misc2d 302; Beverly Hotel Assoc. v. De A/media, 194 Misc2d 528]. PetitiOiler's argument that Slater did riot produce a letter from the former landlord or managing agent acknoWledgfng his ten.a.nty is not ~ece&s.a~y_Since; the above mentioned stai-uteS 'do n'dt require O:Ue. \Vhat is critical in this cri;ie ~$ lli378 Personal jurisdiction * 14 • Mail Where landlord has been i-nstrUcted to remove the t<;:nant's ma'il box and is given a Post office box address f9r the tenant instead~ held any service to the tenant involving mall must he at the post office box. >341 Nuisance • 2 * Oenerally Held there is no proof of nuisance _.where it appears that the conditions alleged are tho$e WhiCh in previous Court proceedings the landlord had been ordered to correct these conditions. > 330 Chronic non,payment ·where teriant_'s withholO:ing of rent appe~rs to have been justified, held it cmmot support a chronic nonpayment proceeding. Commentary: There is at present iw Editor's Commentary for this decision. History: No previous HCR report indlcaied. Decision The. above captioned is a sununary holdover proceeding. The respOndent, Ms. Regan, a rent ·stabilized teriant, was served \Vith a Fifteen Day Notice to Termiruite Tenancy dated June ll, 2003. The Notice alleged, inter alia, that respondent violated Section 2524.3[!] of the Rent Stabilization La\v • ·by failing and :tefusin~ to sign a renewal Lease. The Notice alleged that the respondent violated Section 2524.3[b]ofthe Rent Stabilization Law by creating or allqwing tg co·n_tip.Ue _ unabated conditio.n of , wa:ter leakage frol'll her apartment thereby damaging both her apartment and other apartments in the building. Pursuant to the same section 6f the Code, the Notice alleges the respondent refuses to pay her rent .unless sUed by the landlord. The Notice furtlJer alleges the respondent has violated Section 2524.3[c] ofthe Rent Stabilization Law by refusing the landlord access to make repairs to the apartment. Presumably the c-o'urt meant to refer 1o the Rent Stubilizalkm Code. -- \ .. Editor For-additional cases1 CQnsult the volume index, the Consolidated Inde.:t,_ the HCR Diges'-.1~ 1 (Ifld 2'ut or LTARand its Digests. Copyright 2004, Treiman Publications Corp, need- for di~closure does exist, the Couri should )'e mate- rial and necessary for respond"e:nt tt)_ex_arn- lne Westin by ofl!lly d.epo$ing 8 company employee lt:r (...e Slawlak v. HollyWood, 123 Misc. 2d 435, 437 [Erie Co. 1984]). This gives the Court an early opportunity to summarily deny disc.l-o_sure,-or regarding thore_spedal proceedigns·wbere ample need has been 1hown, to impose appropriate conditions so as to avoid undue delay, hardship-or preJudlc:e to either slde.-·Jn the p'reSerit situ- ation this includes pe_ing cogl1~tqf_the fact that the rights of the non·party wit· nes_ss must likewi-se be protected; Fot_ these re<;s_p_ns the follqw]ng deteqnination Is made:· -~.esponde'.ht may depose We~tin_· .. by J·erv- lng upon it a·copy of this ded_sion_·tO_gether wlt}1 a sut>poena_on cond_iti_on that respon- dent pay all expenses And_ that such exami- nation Is noticed to take place \:'{ithin thirty days from the date of this order;·For expe~ dience, if petitioner has per&Onal know!~ edge as to the present location of Westin it shall- so advise respondent. This is without prejudice to any reasonable objection t.o the oral examination or production of doc- uments which Westin itself may have pro- vided that it seeks a protective order pur· ouant to CPLR 3103 within twenty days from the time a subpoena is ae:rved._ln U,_e interim respondent l.s to pay to petitloner use and occupancy in the &:arne amount Pre\-1ou-sly paid as rent commencing April 3,-1989 and continuing thereafter untll the conclusion of thls case (see Eli Haddad Corp. v. Cal Redmond Studio, 102 AD2d 730,731 [1st Dept. 1984]). Furth•·this case is to appear on the Part 52 cale~>J.ar ror tri- al.on April28, 1989. No.4: April1989 This memorandum op1n1on constitutes the decision and order of the court. A NYLJ AprilS, 1989 p. 22, c. 6 Civ NY per Judge Gangel-Jacob Editor's Note: The decision which this.decision supercedes appears at 17 HCR 52 A. Because there is riew material in this version,there is greater indexing coverage. Administrative Code §27-198.2; CPLR R3211(a)(2), R3211(a)(7); Golub notice; lease; MDL §4(9), §4(16); notice of intent not to -renew; notice of intent to commence; __ notice of termination; permanent tenant; personal use: primary residence; RSC §2520.2, §2520.6(b), §2520.6(j). §2520 11, §2521.3(c), §2522.5, §2524 2(a), §2524.2(b), §2524.2(c)(3). §2524.4(a). §2524.4(a)(3). §25244(a)(3)(a), §2524.4(a)(3)(b), §25244(a)(4), §2524.4(c); SRO; subject matter jurisdiction. I MORRIS v. COLE-In this holdover sum· mary proceeding petitio-per :S~kS to-recov· er possession of the rent stabilized_prem- 1 ises in possession or the respondent, apparently without a lease. because the owner wishes the prem-h;e~ for his person· a! use and occupancy; Respondent moVes for an order pursuant to CPLR 321l(a)(2) and _(7) dismlssiilg-_thiS-pt(>ceeding f.or .J~ck or subject _fTla:~_ter juri_s_d_ic\ion arid failure to state~ cause'_ Of a~tion on gro_unds tllat-the purported "30-day" _notice_ t_? termh;:1~t~ serv.ed upon respondent by pe~ition~r as_a predic~te.-to this summary JJI'OC~4ing WllS Jegal)y Insufficient under sections 2524 .2(b) and (c) (3) of the Rent Stabiliza· tiOn Code ("Code:"), For the reasons stated below, the motionlS. gr~nted ind th-e pe.ti· tion is dismissed. At 'the oUtset, the :court notes that peti~ tioner claims the-premises are located in an "SRO buildiriS" 1 and that respondent is ln possession without a lease.- On tt10se grounds petitioner apparently claims that the provisions of the Code reierred to herein do not apply to this proceeding. Rather petitioner contencl:s that ·~special provisions';' apply to the_1~ni1iriation _of this tenancy, but fails to. inform the Court to what "special proviSionS,';' he is re!erring.2 This court disagrees and holds thaJ the Code, effective May 1, 1987, contrqls i_n thi-s matter. First, ~titionei' COncedes in para- . graph 6 of the petition that th_e _premises are subject to the rent stabili~.Uori laws. 17HCR115 SRO's subject. to the rent_ s.tabil i:z.at\on lawS are stibject to the Code Unless their status permits an exemption (s·f!e·cocte Sedio-n 2520.11) (there are no anegati(:ms_ or such an exemption here). AI_so; that respondent is without a lease does not teinove him from the protection of the COde. _Since this . premises Is stibject to the Code, this tenant is a tenant under the Code,Jndeed, ~ectipn 2522.5 of the Code requires the. owne:r of a rent stabtlized p_r~mises to provide the ten· .ant thereof with a Jease.TH8t this landlord 1:lid not comply v..:ith lts statutory Obligation to provide-a'Jease shoUld not prej\,ldii:_e this tenant's rights under the Code; -More- over, if this SRO premises f-alls within the Code's definition of "hotel'' (see Code se·c- tlons 2520.2, 2520.6(b) and 2521.3(c) ), .. ction 2520.60) of the Code includes ••Permanent Tfinant[s]" as· tenants foi pur· poses of the Code, defined, In _relevant part, a~ follows: "For housi-ng accornmoda· tlons located in hotels, an individual or such individual's family -members residing i'Wth s\Jch individual, who have contrnirouS· ly resided {n the same building as a p;incfpaf residence for a period of at least six months •.. "(emphasis added). Attached to the mov.ing papers as ·ExJ1ibit "C'' -·is a copy of a letter dated May 22, 1987 from the "OWn· ers" to respOndent addressed tO re.spon- dent at the premises, whkh. deaily shows that re~pondent llas ~en_at the premises since at least May 22, 1987, R_espohdent thus w·ould fal-l Within the Code's definition of "Pen:nanenl Tenant" and within the am· bit of the Code in any evi::nt. Servic_e· Of a proper notic_e_rif termination is a necessary pre-requisite to-_the nl-ainte· nance of a holdover proceeding bas'ed upOn occupancy .by an owrier or member o!_o)'ffier'simmediate famUy. (Code sec· tion -2524.2[a)). The notice i~ r~quired to provide the court with subject matter juris· diction of the proceedin-g and ._if the notice of termination is fqJ..lnd to be insuffici~nt, the proceeding m~st be dismiss-ed (Chi-na· townApts. v Chu Cl"lo Lam, 51 N.Y.2d 786, 788[1980]; Strlbula v. Wien. 107 Misc.2d 1!4, 117[A,T.lstDept.l980]; Carriage Court lnn, Inc. v. Rains, 138.Misc...2d 444, -445 [NYX Civil Ct. NY Co.J988]; Bernard Federal v.lsal>el Ortiz, 139 Misc.2d 274, 276 [NYXCivilCt.Kings Co. 1988]). $ection 2524.2(b) of the Code requires , that every notice tq a· tenant to vacate or .surrender possession o_f a housing_a~com modation because the owner wishes the preinises for' his personal use ·and occu· pancy (Code section 2524.4[a]) mu"st stale the facts necessary to establish the exis- tence of such ground, and the date when !the tenant is required to surrender posses- Ilion. Section 2524.2(c)(3) requires that ev- ery such notice be served upon the tenant "at least 120 and not more than 150 days prior to the expiration of the }ease tenn, or ln the case of a hotel pemit!lnent tenant without alease,.at least 120 and not more than 150 days prior to the commencement of a court proceeding." Section 2524.4(a)(4) of the Code provides: "No action or proceedl~g to. recover Copyright Lamb's Flight Ltd. 1989 17 HCR 116 poSsession pursua.tl:t to-thls _subdiviSion (a) I Occupancy by owne~ O'r member of owner's Immediate family] £haU-be com- menced in _a court to competent juri5dic· tion unless the_ owner shall have s_erVed the tenatlt with a tel1llination ·notice in ac· cordanc_e with subdh~SiOtis (a), '(b) _and (c) (3) or section2524.2 of this Part (Tet· mination Notices)."~ Before bringing this wm!Tlary holdover proceec;ling, petitioner Jerved a "30~day" -~rtT!iriation_ not:iC_e~ Upon respondent,- dat· ed June 15, 1988, purporting to terminate respondent's tenancy as of July 20, 1988. ffle basis for termination was stated in· the eotice simply .U ·-·~er oCcupB..'n"Cy. •'• The ootice was Signed by two individuals, Ah- lbony Morris and Adelia Alexander, as "Landlord." The de$-Cription of the pi'em- 00 at issue contained no street address, but merely referred to "4 roOtps BUement .floor •.. Basem~nt used for, . ·Dwelling purporses." ... This notice was fundamen~ly defective. It not only lac_ks any identification pf which ~ne of the landlords-requires the_ premises for his or her owh Use, -_it fails to -Identify the premises and completely fails to iri~ elude any statement of facts necessary to estl!.blish "the exiStence cif the ground upon which petitioner relies. This defect cannot be .cured to operate retroactively _by -amendment ot the petition or by reason of .any statement of fact in the papers _now be- fore this.court5 (see, ChinatoYro Apts. v. Chu Cho Lam, supra at 787, Carriag< Court Jnn, !nc. v. Raines, ~urfra_.at 446; federal v. Ortiz, supra at 276). Thus,.this court is de· priv~d of subject ·matter jurisdiction and the petition must be:dismissed. The court need not conSider.respondent's othe·r ar- gument that s~rvice of the notice was de- fective for fajlure to comply with the ·120- 150 day_ requirem·ent Of Code section 2524.2(c) (3); This constitutes the decision a.nd order Of the court.' (I_) "An _SRO has been d_efined as a lMng.unit _whkh shares a k:ltchen.·andjor blithroom With One or more _other units~ ...• (cltatlons_omttt~) SRO uniti-ve found ln hote __ b, apartnientbUild· ings, and even-private homes·~ Seawall ~oc. v. City o!N.Y., H2A.D.2d 72., 75 (Is! O.pt. 1988); see, also-, -Multiple D-Welling t.a....-·~ectiont 4(9), (16). (2) The court notes, but does not herein c_on· ·alder whether thla matter (bu¢ pn owner occu- of the Local Laws of 1987 (NYC Adrriiriiatrative Code .section27·198.2 and corres-ponding sec- tions) which·, inter ali&., place a mOratorium on the e.lteration, conversion or demolition of pri· ¥a:teJy owned SRO buildings and Piohiblt_ the warehoos.ing of such unlts. Cf., Seawali_Ais-oc.. v. City of NY, 142 A.0.2d 72{1st Dept 1988). (3) Under the Codt:--and it! predeceSsor code, a:tld) notice$ ue als.o rometimes referred to as "'notice of lntention_not to renew" the tenant's !eue, or 'Golub" notiCes (see, Golub v. Frank, 65 J.I.Y.2d 900 {1985]; Stein V. Mauer, 130 MiJ.C.2d. .19 [NYC Clvll Ct., NY Co.1985J). (4) This -Is not to be confu5ed with the add!· tiona! 30-day notice that Is required to be given ,under Code: section 2524.4(c) In non-primary ~ldem:e proce:«'erved_Mr. D'Alesaildro_il.s well as over wflat Mr. Kan- baf.said at another .m~ting without Mr. PoStel_On_ Sunday, Nov. '20. J need n9t r~· _J.Olve these· disp·utes_ since it is doubtfully whe:,ther the_-wOrds "restrai-ning notice" would have·rnuch mea-ning to a layman such as Mr. D.'Alesandro.ln any eV.ent. Mr. D'AJes.an'dro ca.Jled Mr.-Deneroff as soon as Kanbat and Post{>! left his office and short· ly tbereaf,er a three way call was· set up among the tv.'o of them_andcorpotate counsel fred Daniels. Although Mr .. D'Ah:- sandro saud he had been served with two subpoenas. he !\p·pare-ntly was not' asked about what else.they_tontained. Mr. Dan+ iels asked him _to sehd his law_ firm a copy of the docUments. That 'ended .the involve· ment ofMr. D'AlesaridrO._ There'iS-ho Proof of any sort that he participated In or ev·en knew about the subsequent acts of Gold· berg, De-nero[[ and the tenant corp-Oration, further mooting the issues of what he was told he had been s-enoed with. ArOUnd 7 P.M. of that Friday, landlord's counsel teletopif:!d copies of the docu- ments Jerved oh Mr. D'AJesandro w-itll a Jettfr of trclrisn1itt-arently, ~r. Laskey was not told that doc- uments had been served on Mr. D'Aiesan~ dro_for the _corporation. Mr. :Laskey not orily stated .that the corporation could do .so but ·encouraged Mr. DeneroH to make sure that all taxes be pa:id to avoid the prospe~;t of indivldutil personal tax Jia,bility._ M_r_; Denero!f then haa his bookkeeper Obtain _from "the _corpor~tiori's regular bank a list of the outstanding checks which had not yet been paid. He_ also instruCted_ her to calculate whether there was any accrued but unbilled taxes and to prepar~ a Jist of all unpaid bills. ~terthat mornirig,_he, with Mr. Goldberg's kno\>:ledge and co·n· a¢:nt.- pajd the first of three visits t~ the. Ia· Copyright Lamb's Flight Ltd. 1989 .. ---CML COURT OF THE CITY OF NEW• YORK COUNTY OF NEW YORK: HOUSING PART D ---------------------------------------------------------------)( YEN LEE, Index No. L & T 61186/10 Petitioner-Landlord, -against-: . DECISION/ORDER DAVID JAMES( ·' . l ' I Respondent-Licensee, LAQUAWN LYNCH, . . ' · Respondent-Undertenant. . -"----------------------· -------------------·-----------------)( HON. ARLENE H. HAHN, J.H.C.: Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion to: grant summarv judgment. Papers Notice of Motion, Affirmation and Affidavit Annexed .................... . Answering Affirmation and Affidavit ............................................. .. Replying Affirmation and Affidavit ...................... , .......................... . Further Replying Affidavits ..................................................... : ...... .. Exhibits .......................................... .-.......... : ..................................... .. Other ..... Trial Transcripts ................. , ............................................. . Numbered 1-3 17 18 26,27 32,33 4-16; 19-25:28-31 34·35 Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Petitioner commenced the withinholdoverproceedingto recoverpossession ofRoom No.~ located at 110 West !30th Street, New York, NY (the room) on the ground that respondents' rights of occupancy were revoked after ~e service of two separate ten-day notices to quit. Respondent David James (Mr. James) has not appeared or answered the petition. After inquest, a finaljudgrnentofpossessiortwas entered against him on December 13,2010. Respondent Laquawn Lynch (Mr. Lynch) has appeared and served an answer to the petition. He has also previouslymoved ----------""""""'-~-·-·- ..... '··.- ·,, ·. f -2- for summary judgment which motion was denied by decision!orqer dated Septel!lber 3, 2010 (the . . September 201 0 decision). Petitioner now moves for sUJmnary judgment in his fnvo'r !Uld Mr. Lynch .. opposes the motion. Mr. Lynch contends that summary judgment may not be granted for a number of. reasons. Mr. Lynch argues, in th~ first instance, that sUJnmary judgn\ent may not be awarded to petitioner because copies ofwl the.pleadings have.not been included in the moving papers. According to Mr. Lynch, because a copy of his answer was omitted, the motion is procedurally defective. CPLR.3212 (b }proV:ides'that a motion for summary judgment must be supported by . copies of the pleadings. The omission of the pleadings generally requires a denial of the summary judgment motion (Krasner v Transcontinental Equities, 64 AD2d551 [1'' Dept 1975]). ·Here, however, the origi11al pleadings are all contained within the court file; consequentiy; a complete record is available for consideration (seeAyerv Sfry Club, Inc., 70 AD2d 863 [l "Dept 1979], (lppeal . dismissed45 NY2d 705 [1979]). . . Mr· Lynch fuither contends summary judgment should be denied because certified · copies of petitioner's deed and multiple dwelling registration have not been provided. This contention is without merit. A copyofthe deed to the subject building has been certified as true and correct by petitioner's attorney{see petitioner's exhibit C). Further, a copy of ~ . . . . .. ' • • ' . . . . • . . ! • ' • ! ... ! ••• ~ • • • . ' ·. . • ~ • . • . • . . . . the building's multiple dwelling registration has been certified by the clerk or custodian of the New York City Department ofHousing Preservation and Development on the bac;:kside of the last pages of petitioner's exhibit D. Both the deed (CPLR 2105) a.Tld the registration (CPLR 4518 [c)) are properly admissible in evidence. Moreover, these documents show that petitioner is the owner of .. -3- the subject building, a single room ocrupancyCiass B multiple dwelling. The relevant facts are not disputed. In November of2008 Mr. James, the fort11er superintendent of the building, leased a small space in the room to Mr. L}'nch for an agreed upon rental of $75 per week. The tw:o' shared tlie space for:a very short period. Bithe ·middle of December 2008 Mr . .Tames had vacated and 1fr. Lynch was now in sole ljlld exclusive possession. Commencing thats"ame month ofDecember 2008 Mr. Lynch paid Mr. J anws $150 per week for the· right tci ocCllpy the room. In August of2009 a notice was posted that Mr. James was no longer the superintendent of the building; that the ()wner should be contacted if there were any problems. Two months later, in October of2009, the owner locl<;ed Mr .. Lynch out of the room illegally. Mr. Lynch was subsequently restored to possession, but, without prejudiqe to the owner' s· right to <;ommence. the appropriate sUlll1Jiazy evictiop.vr(lceeding (see petitioner's exb,ibit I). Shortly thereafter, this ' ................... -.. , ""!"., .... ~.-.. ,, .. --···· .. . proceeding was commenced. Mr. Lynch contends that on these facts, summary judgment may not be granted to petitioner. According to Mr. James, because he has ~tilized ·the room .as a priinary residence for at least six months·he is a permanent tenant under the Rent Stabilization Code. . 9 NYCRR § 2520.6 {j) . defines a permanent tenant as an individual who has. · continuously resided in the sa:me building a5 a principal residence for at least six mont:I,.s. fuKanti- Savita Realty Corp. v Santiago (18 Mise 3d 74 [App Term, znd Dept 2oo7]) the court held,, among other things, that to become a permanent ten!ln.t in an SRO!Hotel building under the Rent Stabilization Code, the only element necessary was continuous residence in a unit for six months;· the payment of rent to the owner was iiTelevant.. Following this line of reasoning, the trial court, in Branic International Realty Corp. v Pitt (fudex No. 75547/07), held that because there was no dispute tl1e occupant resided at the -4- . subject p1·emises for at least six months, his place!llent therein by the New York City Human Resources Administration (HRA) was irrelevant; the occupant could. not be evicted as a licensee · because he was a permanent tenant under 9 NYCRR § 2520.6 (j). The Appellate Term, Fltst Department, however, reversed the trial cour( and held that . . •, ' . •' ...... · ... ; ..... . because the occupant. was a licensee of HRA there was no express ot implied landlord - tenant relationship between the·owner and the.occupant and no protection from evictio.n under 9 NYCRR § 2520.6 (j) (Branic International Realty Corp. vPitt, 30 Mise 3d 29 [App Term, l'' Dept2010]). · . . This court is bound by First Departml;:nt precedents (Mormtain View Coach LiMs, Inc. "' 8tu;ms, 102 . AD2d 663 [2"d Dept 1984]). Here, the undisputed facts cl!'larly show there is no express or implied Ia.!dlord -tenant relationship between petitioner and Mr. Lynch. 1\11'. Lynch is a iicens.ee of Mr. James. Under these cltcumstances, Mr. Lynch is not afforded the protection of9 NYCRR § 2520.6 (i) (}3ranic International Realty Corp. vPitt, supra). WhenMr.Lynchmovedforsummaryjudgmentthemotionwasdeniedbecausethere . . W()re issues of fact concerning W..r. Lynch's six months ofcontinued occupancy of the room as a primary residence. "Petitioner challenges respondent's claim that he moved into the premises prior . . . to October 2009 as well as why undertenant's driver's license shows a residence address of 3401 Cr0ydon Road, Baltimore, Maryland 21207" (petitioner's exhibit M; copy of September 2010 . . . . . - decision, p. 3). Under Branic, however, so long as th.e occupant came into possession under a license from a third party, there is no protection under 9 NYCRR § 2520.6 (j). Branic; supra, vias decided on December 22, 20iO; three months after the September 2010 decision. According;ly, petitioner's motion for summary judgment is granted. Petitioner is awarded a final judgment of possession and the forthwith issuance of the warrant of eviction; • -5- execution of the warrantis stayeciuntii thittyday~ afterth~ service of a copyofthis orderwithnotic~ . . of entry. Petitioner is also awarded a money judgment in the sum of $18~ooo representing all usk : ~d occupancy due petitioner fhim Mr. tyuchfor the perioc). December 2008 through May2011 at . the rate of $.150 per week o~ $600 p~~ month. These findings are without prejudice to a plemuy action be1;Ween respondents Laquawn Lynch and David James. The foregoing constitutes the decision. and order of this court. Dated: New Xork, New York · Ma)i.) I, 2011 .