153-157 Lenox Holdings LLCv.Konare

Civil Court, City of New York, New York County.Mar 11, 2016
36 N.Y.S.3d 408 (N.Y. Civ. Ct. 2016)

No. L & T 64362/15.


153–157 LENOX HOLDINGS LLC, Petitioner–Landlord, v. Waly KONARE, 100 West 118th Street, 3D New York, N.Y. 10026, Respondent–Tenant.

Green & Cohen, P.C, New York, Attorneys for Petitioner. Sanctuary for Families Center for Battered Women's Legal Services, New York, Attorneys for Undertenant.

Green & Cohen, P.C, New York, Attorneys for Petitioner.

Sanctuary for Families Center for Battered Women's Legal Services, New York, Attorneys for Undertenant.



153–157 LENOX HOLDINGS LLC(Petitioner) commenced this nonpayment proceeding against, WALY KONARE,(Respondent), the rent stabilized tenant of record, seeking $6,205.82 in rent arrears for the period of August 2014 to and including April 2015, at a monthly rent of $684.16. The petition is dated May 8, 2015.

Respondent appeared pro seon May 28, 2015, and filed an answer, asserting a general denial and there were conditions that needed to be repaired in the Subject Premises.

On the initial court date, Respondent paid $2000 and the Court ordered an inspection by HPD of conditions alleged by Respondent. The inspection was scheduled for June 12, 2015, and the proceeding was adjourned to July 2, 2015. The inspection request indicates that two minor children live in the Subject Premises, they are identified as M. K., aged 10, and I.K., aged 6. The inspection resulted six class "A" violations, three class "B" violations and a class "C" violation. The Class "C" violation was for the lack of window guards because of the children living in the Subject Premises.

On July 2, 2015, the proceeding was adjourned to July 30, 2015 for trial. On July 30, 2015, the proceeding was transferred to Part X for assignment to a trial judge. The proceeding was adjourned in Part X to August 14, and then to August 27, and finally to October 8, 2015.

On October 8, 2015, the parties entered into a stipulation of settlement, converting the proceeding from a nonpayment proceeding to a holdover, and the proceeding was transferred back to Part D for the stipulation to be so-ordered. The stipulation provided:

1) Matter converted holdover (sic)

2) Final Judgment in favor of LL. Issuance of warrant forthwith, execution stayed conditioned upon Respondent vacating, surrendering & returning keys to LL, leaving premises vacant & broom clean on or before 11/30/15, normal wear & tear accepted (sic). Anything remaining after 11/30/15, shall be deemed abandoned & may be removed by LL.

3) Conditioned solely on the above, Petitioner agrees to waive $8185.73 in rent due through October, u & o through vacate date & tender $10,000– to Respondent upon a full & timely vacature, Time Being of Essence.

4) Security deposit surrendered to LL, & receipt to be given for keys.

5) Upon default, warrant shall execute upon default (sic) after service of a Marshal notice,

6) Surrender & payment to be made contemporaneously. Upon default to this provision case may be restored.

The stipulation was allocuted by the court (Black, J) on October 8, 2015, from 12:57 pm to 1:03 pm. Although Respondent had requested a French interpreter for the trial, the stipulation and allocution were done without an interpreter, which Respondent agreed to. During the course of the allocution, Respondent once again advised the court and Petitioner that his three minor children lived in the Subject Premises and stated he wanted to move to a larger apartment. No inquiry was made as to whether there were any other adult occupants by the court, and there was no representation in the stipulation as to any other adult occupants.

A judgment was entered against Respondent pursuant to the stipulation. No warrant of eviction was ever sought by Petitioner and no warrant of eviction issued. The petition does not name a John and/or Jane Doe.

Respondent moved out of the Subject Premises in November 2015 and at that time he told Undertenant about the stipulation and told her she had to vacate the Subject Premises.

On December 18, 2015, Djeneba Sissoko, (Undertenant), by counsel, moved by Order to Show Cause, seeking to restore the proceeding to the Court's calendar, and allow Undertenant to interpose an answer and counterclaims. In the proposed answer, Undertenant claims that she has resided in the Subject Premises, with Respondent, since the inception of the tenancy in 1999. Undertenant provides documents showing that she and Respondent are legally married and have three children together, all of whom were born during the tenancy, and two of whom continue to reside in the Subject Premises with Undertenant (Ex A–D).

On December 18, 2015, Respondent moved pro seby Order to Show Cause, stating that his wife is refusing to move out. Presumably Undertenant seeks to have the court evict his wife and children so he may obtain the $10,000 pursuant to the stipulation.

On March 3, 2016, after submission of Petitioner's opposition papers and Undertenant's reply, the Court heard oral argument and reserved decision on the motions.


Undertenant argues, among other things, that she is a necessary party, which Petitioner failed to name and serve. Petitioner's position is that Undertenant is not a necessary party because she was never a party to the lease. Petition states in its' opposition papers that Petitioner never knew Undertenant, or presumably her three children with the Respondent, were living in the Subject Premises for the past 17 years.

".... (A) wife, even if not named as a tenant in the original written lease, may acquire possessory or tenancy rights to an apartment which is subject to modern rent regulation, and may thereby become a necessary party (Stanford Realty Assoc. v. Rollins, 161 Misc.2d 754)." Respondent having permanently vacated the Subject Premises, Undertenant's claim to succession accrued opr will accrue upon the expiration of the lease.

Respondent is free to negotiate his own surrender of the Subject Premises, however he does not have the authority to do the same for his wife.

Undertenant's motion seeks to appear and defend in a nonpayment proceeding, but this proceeding has been converted to a holdover proceeding. While Respondent was entitled to waive any predicate notices or other requirements regarding the holdover proceeding, no such waiver was made by Undertenant.

Conversions of nonpayment proceedings to holdover proceedings have been held to be valid and enforceable (Carmine Ltd v. OlariuNYLJ, Oct. 24, 1997, p. 29, col. 2, App. Term, 1st Dept.). However, such stipulations have been vacated where it was found that the agreement was improvidently entered into (High v. RandallNYLJ, Jan. 8, 1980, p. 11, col. 4, App. Term, 2d Dept.). There is no request before the court to vacate the stipulation between Respondent and Petitioner.

There is no information in the record as to whether there is an unexpired lease agreement pertaining to Respondent's tenancy. None of the parties annex any lease to their motion papers. Undertenant does show proof that she and Respondent are legally married and that their children were born during the time they lived in the Subject Premises together. It appears to be undisputed that Undertenant lived with Respondent in the Subject Premises through the date he permanently vacated in November 2015, and has asserted a colorable claim to succession to his rent stabilized tenancy.

Additionally, Respondent has provided a printout from DHCR showing no registrations were filed for the Subject Premises from the initial filing date in 1984 through 2005. The first registration is filed in 2006 and lists Respondent as a tenant of record at a rental of $474.26. The most recent registration was filed in July 2015 and asserts a renewal in effect for a period of October 1, 2014 through September 30, 2016 at a legal rent of $684.16.

Petitioner's opposition is based primarily on its mistaken claim that a warrant of eviction has issued and that said issuance precludes Undertenant from asserting a succession claim. This argument is flawed. First, as noted above, no warrant of eviction ever issued in this proceeding, nor is there a basis for the warrant to issue now as Respondent has permanently vacated. Petitioner has no right to evict Undertenant in the context of this converted holdover proceeding, and there is no longer any pending nonpayment proceeding for Undertenant to appear in and defend against.

As to Undertenant Petitioner is relegated to the commencement of a holdover proceeding, (assuming there is a good faith basis to challenge what appears to be a strong succession claim by Respondent's wife and occupant of 17 years) and Undertenant will be entitled to assert her succession claim in said proceeding.

To the extent that Respondent seeks an order forcing his wife and children to vacate, Respondent has no standing to seek such relief and his order to show cause is denied in its entirety.

The court agrees that it seems unlikely that Petitioner had no knowledge that Undertenant has lived in the Subject Premises for the past 17 years. Petitioner clearly had knowledge that the minor children were living in the Subject Premises. Petitioner's agents presumably had cause to enter the Subject Premises for repairs at some point. Petitioner, or its predecessor in interest, also commenced a holdover proceeding against Respondent in 2006, under Index Number 102778–06. In that proceeding, Petitioner was represented by the same counsel as in the case at bar, John and Jane Doe were named as undertenants and the case history appears to reflect that counsel for Petitioner took Respondent's deposition. That proceeding was pending from December 2006 through June 2007, when it was discontinued by Petitioner.

While Petitioner claims no responsibility for the irregularity of the registrations and that it is a relatively knew owner, both the deed in 2013 and the prior deed in 2006 list identical addresses for the grantee and grantor suggesting that the entities are related.


Based on the foregoing, Respondent's order to show cause is denied and Undertenant's motion is granted to the extent of the court's ruling that Undertenant is not subject to eviction in this converted holdover proceeding based on the judgment entered against Respondent and that Petitioner must institute a holdover proceeding against Undertenant in order to recover possession.