03-07 Realty Holdings Inc.

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Civil Court, City of New York, New York County.Jun 27, 2013
40 Misc. 3d 1203 (N.Y. Civ. Ct. 2013)
40 Misc. 3d 1203972 N.Y.S.2d 1472013 N.Y. Slip Op. 51011

No. L & T 59905/2013.


03–07 REALTY HOLDINGS INC., Petitioner–Landlord, v. Ana GUZMAN 603 West 184th Street–Apt. 5–ER New York, N.Y. 10033, Respondent–Tenant, Bienvenida Gomez, Brian Guzman, “John Doe” and “Jane Doe”, Respondent–Occupants.

Sperber Denenberg & Kahan, PC, for Petitioner. The Legal Aid Society Harlem Community Law Office by Alan Canner, Esq., for Respondents.

Sperber Denenberg & Kahan, PC, for Petitioner. The Legal Aid Society Harlem Community Law Office by Alan Canner, Esq., for Respondents.


The underlying summary holdover proceeding was commenced by 603–07 REALTY HOLDINGS INC (Petitioner) against ANA GUZMAN (Respondent) the rent-stabilized tenant of record, and BIENVENIDA GOMEZ (Gomez) and BRIAN GUZMAN (Guzman) based on the allegation that Respondent has sublet the Subject Premises in violation of her lease and the Rent Stabilization Law.


Petitioner issued a ten day notice to cure on January 21, 2013, a notice of termination on February 26, 2013 and the petition is dated March 14, 2013. The proceeding was originally returnable April 3, 2013. Respondent appeared by counsel on May 17, 2013 and filed a written answer. The answer asserts improper service, acceptance of rent vitiating the notice of termination, that the undertenants are family members with longstanding ties to the Subject Premises, and that their occupancy does not therefore constitute subletting.

On May 28, 2013, Respondent moved for summary judgment. On June 26, 2013, Petitioner cross-moved for summary judgment and related relief. On June 26, 2013 the court heard oral argument and reserved decision on the motions. The motions are consolidated for disposition and determined pursuant to the annexed decision and order.


Respondent moves for summary judgment on her fourth affirmative defense, that Petitioner accepted payment of rent after service of the notice of termination and prior to the commencement of the tenancy. Respondent asserts in her affidavit that rent for March was paid on March 19, 2013. Respondent annexes a copy of a receipt from the management office which acknowledges payment as of said date. Respondent paid April rent on April 10, 2013 and also asserts proof of receipt by Petitioner for same on said date.

The notice of termination in this proceeding is dated February 26, 2013, and it was served by mail on said date. The notice terminated Respondent's tenancy effective March 10, 2013. The proceeding was commenced on March 28, 2013, when the affidavits of service for the Petition were filed.

The Court finds that Respondent is not entitled to summary dismissal on this basis, nor is Petitioner entitled to dismissal of the defense. In Brodcom West Development Co. V. Lumpkin, Index No 79395/08 (Dec18, 2008), this court held, after trial, that acceptance of a month's rent did not vitiate the termination notice. However, that was after Respondent had an opportunity to present facts in support of the defense at trial. As this court noted in said decision it was clear from both the evidence and testimony at trial that the acceptance of rent created no confusion on the part of Respondent. In this case, the trial has not yet taken place and there are questions of fact which need to be determined at trial. For example, the moving papers state that Respondent moved into the Subject Premises in 1982 with her brother, and that in 1986 the lease was “transferred” to her name. If “transferred” means that Respondent succeeded to her brother's tenancy, then the 1986 lease agreement relied upon by Petitioner may not be the governing rental agreement. Additionally, the rent payments at issue appear to have been made in person, but it is not clear who delivered these payments, whether they were personally accepted by Petitioner and whether there was any interaction or discussion between the parties to said transactions.

Moreover, th primary authority relied upon by Respondent for dismissal is 207 East 78th Street Assoc. v. Cassidy 192 A.D.2d 479.Cassidy was a non-primary residence proceeding, and as acknowledged by Respondent, the determination of the effect of acceptance of rent differs when the issue is in relation to service of a notice of non-renewal, after the expiration of the lease, rather than service of a notice of termination, based on breach of lease, as in the case at bar.

Based on the forgoing, the fourth affirmative defense is preserved for trial.

Similarly, Respondent's fifth affirmative defense raises questions of fact to be determined at trial, including the nature and extent of the ties of Guzman and Gomez to the SubjectPremises, and whether they occupy or previously occupied the Subject Premises concurrently with Respondent ( See eg Georgetown Leasing LLC v. Oakley 19 Misc.3d 988).

Petitioner's cross-motion to dismiss Respondent's first, second and third affirmative defense is granted. Respondent asserts that she resides at the Subject Premises, therefore service at the Subject Premises was proper. Respondent does not asserts that Petitioner had written notification of any other address for Respondent in New York State.

Petitioner cross moves for discovery. Petitioner must establish ample need in order to be entitled to discovery. Petitioner relies only on the affidavit of Orlando Cruz, which asserts that Respondent's husband came into the office at some unidentified date and advised some unidentified person that Respondent lives with her husband in the Bronx. This statement which is either hearsay or double hearsay does not by itself establish ample need.

However, Respondent acknowledges that Guzman has resided at the Subject Premises since his birth in 1993, and that his grandmother, Gomez regularly stays over at the Subject Premises. As such the court finds that Petitioner is entitled to limited discovery (Hartsdale Realty Company v. Santos 170 A.D.2d 260).

The court directs Respondent and Guzman to appear for depositions within 60 days. The court does not find that Petitioner has established ample need for the deposition of Gomez, as if Guzman and Respondent are both there together whether Gomez is also there is irrelevant. However, the denial of discovery as to Gomez is without prejudice to renewal after the discovery against Respondent and Guzman is completed, if Petitioner can show additional facts warranting same.

Respondent has already provided her drivers license, her voters registration card, proof that there is a time warner account at her name at the Subject Premises as well as a Con Edison Account and a Citibank Statement. Respondent is directed to provide additionally documents responsive to items 2, 5, 6, 7, 9, 10, 12, and 16 for the period of January 1, 2011 forward. Respondent has already provided documentary proof of her relationship to the other occupants.

All other document requests are denied.


Both parties' motions for summary judgment are denied. Petitioner's motion to strike Respondent's first three affirmative defenses is granted. The motion to strike the fourth and fifth affirmative defenses is denied. Petitioner's motion for discovery is granted to the extent of directing depositions of Respondent and Guzman and requiring document production as outlined above.

The proceeding shall remain off calendar pending discovery.

The parties have stipulated that use and occupancy shall be paid pendent lite at the last lease rate, without prejudice to either parties' rights.

This constitutes the decision and order of this court.

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