Decided November 17, 2009.
Borah, Goldstein, Altschuler, Nahins Goidel, P.C., Attorneys for Plaintiff.
Grimble Loguidice, LLC, Attorneys for Defendant.
Plaintiff 191 Chrystie LLC ("Chrystie" or "Plaintiff") moves for summary judgment (CPLR 3212): declaring defendant Barry Ledoux a/k/a Barry Sonnier ("Ledoux" or "Defendant") not to be a protected tenant of certain sixth floor space designated Unit 6B located in a loft building at 191-193 Chrystie Street, New York, New York (the "building"); declaring Ledoux not to be entitled to remain in possession of Unit 6B; and dismissing Defendant's counterclaims ( see Answer as Exhibit B to Summary Judgment Motion). Defendant cross-moves for summary judgment inter alia dismissing this action.
As set forth in this court's prior decision and order issued March 11, 2008 in this declaratory judgment action ("March 11th Order") (Exhibit C to Summary Judgment Motion), affd., 58 AD3d 411, 872 NYS2d 6 (1st Dept. 2009)("AD Order" as Exhibit D to Summary Judgment Motion), Ledoux, at all times relevant to this action is an otherwise protected tenant of discrete sixth floor front space at the building designated Unit 6A.
Both the motion and cross-motion are consolidated for disposition.
Relevant Procedural Background
During an earlier round of motion practice, Defendant had moved to dismiss this action for lack of subject matter jurisdiction (CPLR 3211[a]), failure to state a cause of action (CPLR 3211[a]), and based upon documentary evidence (CPLR 3211[a]). The March 11th Order denied Defendant's dismissal motion in its entirety. Certain factual information noted in the March 11th Order is relevant to this round of summary judgment motion practice:
By order number 246 dated June 12, 1985 (the "Loft Board Order")[attached to the underlying Verified Complaint as Exhibit A to Summary Judgment Motion] rendered in a coverage proceeding entitled In the Matter of the Application of Wyn Loving, Loft Board Docket No. TR-0079 (the "coverage proceeding"), the New York City Loft Board ["Loft Board"] determined that Unit 6A was a residential unit covered by Article 7-C of the Multiple Dwelling Law (the "Loft Law"), and that defendant is the residential occupant of said unit entitled to protection thereunder. With respect to Unit 6B, which defendant sublet to various individuals from approximately 1978 to 1985, the Loft Board order similarly found that Unit 6B was a covered residential unit but declined to determine defendant's right to possession thereof, stating that defendant's claim "should be determined with reference to the principles governing landlord and tenant relations, in a court of competent jurisdiction." (bracketed matter added).
In its summary judgment motion for an order declaring that Ledoux is not a protected tenant of Unit 6B, Chrystie rests on the following conclusion the Appellate Division reached in rejecting Defendant's appeal of the March 11th Order: Defendant failed to demonstrate compliance with, or even address, the rule governing a prime tenant's right to protected tenant status upon recovery of vacated space ( see NY City Loft Board Regulations [29 RCNY] § 2-09[c][iii]). Defendant's reliance on a statement regarding his potential future rights made by the Loft Board in a 1985 order is misplaced . . .
191 Chrystie LLC, supra, 58 AD3d at 412, 872 NYS2d at 7. Thus, Plaintiff argues that the AD Order has resolved in Plaintiff's favor the sole legal issue as to whether Defendant became a statutory tenant of Unit 6B entitled to protection under the Loft Law when the second subtenants vacated and Defendant reclaimed Unit 6B for residential use in 1985. Given certain undisputed facts Ledoux and the former owner of the building stipulated to as set forth in the Loft Board Order and as noted seriatim in the March 11th Order, and without the availability of statute of limitations and/or laches defenses, Chrystie argues, Ledoux has no viable defense to the underlying complaint. Finally, Plaintiff claims entitlement to summary judgment because the March 11th and AD Orders have now determined the status of Defendant's tenancy with respect to Unit 6B and, therefore, the law of the case doctrine bars Ledoux from litigating this issue any further.
Those facts deemed relevant to the parties then were that: Defendant took possession of the entire sixth floor front space by lease dated May 8, 1978 which expired June 1, 1983; prior to August 1, 1978 (and parenthetically even at the time the lease was executed on May 8, 1978 by virtue of the description "6th floor front space, as now divided"), the space defendant leased was subdivided into two residential units, with Defendant occupying Unit 6A and subletting Unit 6B; Defendant's first subtenants entered into possession of Unit 6B on or about August 1, 1978 and vacated on March 1, 1983; and Defendant's second subtenants took possession of Unit 6B on or about April 1, 1983 and were in possession as of the date of the Loft Board Order, without permission of Plaintiff's predecessor in interest.
In his cross-motion for summary judgment, Ledoux seeks an order dismissing this declaratory judgment action for Plaintiff's failure to join Defendant's wife, Elina Cardet ("Cardet"), as a necessary party. Defendant contends Cardet enjoys independent possessory rights as a residential co-occupant of Unit 6B as well as rights of succession. And in this context, Ledoux and his wife, in unchallenged sworn statements, aver that they have continuously occupied both Unit 6A and Unit 6B as physically undivided space (except for separate entrances) for at least 20 years as their primary residence and have continuously paid their monthly rent (presumably at a minimum, the $5700.00 annual rent set forth in Ledoux's 1978 vacancy lease for the entire subdivided sixth floor front space) to the prior and current landlords, to date. (Ledoux Aff. in Support of Cross-Motion at ¶¶ 9, 13 and 26; see also, Cardet Aff. in Support of Cross-Motion at ¶¶ 2, 5 and 6).
Defendant further points out that Plaintiff "incorrectly relies on portions of the Loft Board Regulations [29 RCNY § 2-09(c)(5)(i)(ii)and (iii)]["subdivided space regulation"] that were designed to clarify who, as between prime tenant and subtenant, was entitled to possession of a covered unit [Unit 6B]" (bracketed matter added) (Grimble Aff. in Support of Cross-Motion at ¶ 18) and, therefore, that regulation is wholly irrelevant to determine defendant's and Cardet's status as protected or statutory tenants with respect to Unit 6B.
Declaratory Judgment Action
An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b); Sun Yau Ko v. Lincoln Sav. Bank, 99 AD2d 943 (1st Dept. 1984), aff'd 62 NY2d 938 (1984); Andre v. Pomeroy, 35 NY2d 361 (1974). To prevail on a motion or cross-motion for summary judgment, the respective proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Indeed, the moving party has the burden to set forth evidentiary facts to establish that party's cause sufficiently to be entitled to judgment as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979).
Granting a motion or cross-motion for summary judgment is the functional equivalent of a trial. Therefore, it is a remedy not to be granted lightly especially where there is doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 (1977). And when issues of law are raised in connection with a motion or cross-motion for summary judgment, the court may or should resolve those issues without the need for any testimonial hearing. See Hindes v. Weisz, 303 AD2d 459 (2nd Dept. 2003).
With the foregoing being stated, it is important to appreciate the judicial perspective of the issues and arguments the parties framed during the prior round of motion practice where Defendant sought to dismiss Plaintiff's declaratory judgment action. Significantly, both parties made the non-appealed Loft Board Order the centerpiece of their respective legal positions. They also relied on 24 year old factual and legal determinations made after an administrative "hearing" grounded on stipulated facts to support their respective positions. Stated differently, the parties metaphorically chose to remain frozen in time as they presented facts and legal arguments on a limited record that compelled the analysis set forth in the March 11th Order and as affirmed by the AD Order. Stripped of redundancies and irrelevancies, here is what the parties then argued.
As the March 11th Order noted, unlike on a motion for summary judgment, the court when resolving a CPLR 3211 motion must assume that the complaint's allegations are true and must deem the complaint to allege whatever can be reasonably inferred therefrom however imperfectly or informally its facts may be stated. Barrows v. Rozansky, 111 AD2d 105 (1st Dept. 1985).
In seeking dismissal of the Verified Complaint pursuant to CPLR 3211, Defendant, a statutory tenant of Unit 6A, particularly relied on language contained in the Loft Board Order's concluding paragraph to the effect that "should [Defendant] obtain possession of the space [Unit 6B and a covered residential unit subject to the Loft Law], he would be deemed the residential occupant as of April 1, 1983, with the rights and obligations thereof." (bracketed matter added). In opposing that motion and demonstrating the sufficiency of its cause of action declaring Defendant not to be a statutory tenant of Unit 6B, Chrystie inter alia relied on two findings contained in the Loft Board Order: (1) The Loft Board's questioning of Ledoux's then right to possess Unit 6B (subdivided space which certain subtenants had been occupying as a residential unit during the pendency of the coverage proceeding, the Loft Board's extensive quoting of the subdivided space regulation the Loft Board deemed controlling (i.e., 29 RCNY § 2-09[c] et seq. [ Prime lessee's right to recover subdivided space]); and the Loft Board's determination that the parties (i.e., then owner, Defendant and subtenants) should resolve their dispute in a court of competent jurisdiction utilizing "principles governing landlord and tenant relations . . ."
As noted in the Loft Board Order and in both the March 11th and AD Orders, Defendant could neither then nor now factually meet each and every criteria of the subdivided space regulation for recovering Unit 6B, if that physically subdivided space was occupied by persons who are not otherwise protected tenants under the Loft Law ( see 29 RCNY § 2-09[c][iii][A]-[D]). And as Plaintiff argued in opposition to the earlier dismissal motion and relying on certain Loft Board decisional authority, Defendant would be unable to meet these same criteria even if Unit 6B was presently vacant. But, as will be discussed, infra, neither is the situation now.
Significantly, during this earlier round of motion practice, the parties principally relied on attorney affirmations supported by documentary evidence that would not necessarily be deemed competent for any party to prevail on summary judgment.
However, with each party now seeking summary judgment, this court must now search a more expansive, up-to-date record using a more refined judicial lens, citing to another Loft Board Regulation more appropriately decisive of the issue presented and, of course, without invoking any equitable principles (e.g., laches, estoppel, etc.) to sustain or overrule any claimed right. In other words, the analyses underlying the March 11th and AD Orders are wholly inapplicable on this more developed record and therefore Plaintiff may not resort to the law of the case doctrine to support its summary judgment motion.
Briggs v. Chapman , 53 AD3d 900 , 901 (3rd Dept. 2008), a cited case Plaintiff finds supportive, is unavailing as the March 11th Order did not dispose of a summary judgment motion, but rather a motion to dismiss. Thus, Defendant is not now "relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue'(internal citations omitted)".
The circumstances which changed on this developed record are the introduction of Cardet, a "new player" in this litigation as well as Ledoux's and Cardet's supporting affidavits in support of Defendant's cross-motion which attest to the following unrefuted facts: (1) within months after the issuance of the 1985 Loft Board Order and voluntary vacatur of the subtenants from Unit 6B, Defendant physically took possession of this covered residential unit and continued (and continues, to date) to pay the rent reserved in the 1978 vacancy lease for the entire sixth floor front space (subdivided or otherwise), to two prior landlords as well as Chrystie, the current landlord; (2) Since 1985, to date, Ledoux has physically occupied both Unit 6A/6B (the interior 6th floor front space is no longer subdivided) (see Ledoux Aff. in Support of Cross-Motion at ¶¶ 13-17) and maintains the combined residential units as his primary residence; (3) upon Ledoux's marriage to Cardet in or about 1987, the latter, at a minimum became a family member of a protected tenant at least with respect to Unit 6A, has physically occupied Unit 6A/6B with Defendant and their 8 year old son, to date, and maintains both residential units as her primary residence; and (4) throughout her 20 year occupancy, Cardet, herself, from time to time has paid the same monthly rental sum reserved in the 1978 vacancy lease with her own personal checks and her monthly rent payments have always been accepted without objection or deposited with any restrictive endorsement.
Relying solely on his review of the floor plan of Unit 6A and Unit 6B presumably on file with the New York City Department of Buildings which may have accompanied Interim Multiple Dwelling plans on file as well and without conducting an on-site physical inspection, the registered architect Plaintiff retained is incapable of countering Defendant's sworn-to physical description of the interior renovation work that created contiguous residential space. See Castrucci Affidavit at ¶ 4 attached to Brody Opp. Aff).
Whereas, in opposition to the cross-motion, Plaintiff's reply essentially reiterates the same arguments raised in opposition to Defendant's dismissal motion relying on the dated Loft Board Order as well as certain Loft Board Regulations not applicable in light of the foregoing unrefuted facts.
Supporting Plaintiff's retreaded arguments are affidavits from Chrystie's principals who attest to Defendant continuing to occupy Unit 6A and/or Unit 6B without a lease at all times relevant here and the fact that neither Ledoux nor Cardet has formally sought permission from the prior or current landlords to occupy Unit 6B ( see Karpati Aff. in Support of Motion at ¶ 7; see also, Brooks Opp Aff. at ¶¶ 5 and 6). As will be discussed, infra, even these indisputable facts will not defeat Defendant's cross-motion.
Against the foregoing factual backdrop, the applicable Loft Board Regulation that is dispositive here is 29 RCNY § 2-09(b)(3)(i) which states:
(b) Occupant qualified for possession of residential unit and protection of Article 7-C.
(3) When a residential occupant took possession of a residential unit covered as part of an IMD on or after June 21, 1982, . . . such occupant shall be qualified for the protection of Article 7-C if:
(i) he/she is a prime lessee with a lease currently in effect or, if he/she took possession, with the consent of the landlord, as a statutory tenant pursuant to Article 7-C, without the issuance of a new lease; (internal italics supplied).
Regardless of whether Ledoux could take legal possession of then occupied Unit 6B as a statutory tenant in 1985, the Loft Board still found Unit 6B to be a covered unit subject to the Loft Law, thus, any discussion of Ledoux's non-occupancy of Unit 6B during certain statutory window periods to otherwise establish coverage of Unit 6B and his tenancy status under those circumstances under the Loft Law ( see 12 RCNY § 2-08, et seq.) is no longer relevant.
However, when Ledoux's former subtenants voluntarily vacated Unit 6B in 1985 and he resumed physical possession thereof, even if subdivided, he took possession of a discrete, covered residential unit, viz., residential space in the building subject to the Loft Law, and he did so after June 21, 1982. Plaintiff, already a protected tenant of Unit 6A without any need for a renewal lease to maintain his statutory tenancy of this originally subdivided space he occupied in 1978, can now lawfully claim he is a statutory tenant of Unit 6B. Moreover, Cardet can also claim her own independent right to be a statutory tenant when she began physically occupying Unit 6B after her marriage to Ledoux in 1987. And they can make this claim as a matter of law without being offered a new lease, an assignment or even expressed consent from any prior or current landlord without a lease, because consent to their respective statutory tenancies of Unit 6B pursuant to 29 RCNY § 2-09(b)(3)(i) implicitly occurred when the prior and current landlords accepted their direct monthly rent payments for the entire sixth floor front space (Unit 6A/6B) from 1985, to date. On this record, Plaintiff has not even suggested that any post-1985 acceptance of rent was only inadvertent or temporary for a limited period of time. Thus, both Ledoux and Cardet became statutory tenants of Unit 6B not by laches or estoppel, but rather by operation of law. Accordingly, Plaintiff's motion for summary judgment is denied and Defendant's cross-motion for summary judgment on his first counterclaim and to dismiss this declaratory judgment action is granted.
Additional factors bolster Plaintiff's implied consent to both Ledoux's and Cardet's statutory tenancy of Unit 6B, i.e.: the prior and current landlords' failure to act on their own initiative regarding Ledoux's resumption of possession of this subdivided space, a right to which he was historically granted when he executed his 1978 vacancy lease (e.g., refusal of rent, a holdover proceeding after terminating a tenancy at sufferance, etc.); both Ledoux's and Cardet's ongoing and regular contact with the landlord regarding rent payments and matters of repairs and maintenance vis-a-vis Unit 6A/6B; and/or the non-binding dicta contained in the Loft Board Order as to Ledoux's potential right to become a statutory tenant of Unit 6B upon meeting certain statutory criteria that he could not have met at the time the Loft Board Order was issued but has met now under 29 RCNY § 2-09(b)(3)(i).
Parenthetically, because Defendant has made a prima facie showing as to the particular facts and circumstances of Cardet's 20 year occupancy of Unit 6B as Ledoux's spouse (e.g., periodic direct rent payments, pro-active interaction with Plaintiff about maintenance and repairs, actual notice of her co-occupancy with Defendant and their infant son, etc.) which went largely unrefuted, this court concludes that Cardet has independent possessory rights to Unit 6B and is a necessary party (CPLR 1001[a]). In any event, the dismissal of this action on the merits rendered this ground for dismissal academic.
"It is well settled in New York that a prevailing party may not recover attorneys' fees from a losing party except where authorized by statute, [written] agreement or court rule [internal citations omitted]. . ." (bracketed matter added)( U.S. Underwriters Ins. Co. v. City Club Hotel, LLC , 3 NY3d 592, 597; see also, Chapel v. Mitchell, 84 NY2d 345, 349). Although the March 11th Order cursorily denied plaintiff's legal fees and sanctions because he did not prevail on his CPLR 3211 dismissal motion, one could reasonably infer therefrom that such an award might be forthcoming should Defendant prove successful in this litigation. Nonetheless, in searching the record and considering the relief the parties have sought now, Defendant is still not entitled to be awarded any attorney's fees even though Ledoux is the prevailing party in this action.
Notably, Defendant's cross-motion for summary judgment solely addressed the merits of his first counterclaim seeking a declaration that he is a statutory tenant. The cross-motion did not specifically request or argue for any relief as to his second counterclaim for attorney's fees. Nor did Defendant proffer a copy of the underlying 1978 vacancy lease to enable the court to refer to the standard "Fees and Expenses" clause to discern whether this attorney's fees provision would be applicable to this type of action. Furthermore, Plaintiff did not commence or prosecute this declaratory judgment action because Defendant violated any covenant of his now expired 1978 loft lease. This would then logically explain Plaintiff's omission of any pleaded claim for attorney's fees in its Verified Complaint. As such, the reciprocity provisions of RPL § 234 (fee shifting statute), can never be triggered entitling Defendant to any attorney's fees and related expenses for defending this action. Hence, Defendant's reliance on this statute to sustain his second counterclaim is grossly misplaced ( see Gray v. Hilltop Village Cooperative No. Three, Inc., 50 AD3d 739, 740 [2nd Dept. 2008]; cf., Galicia v. Rota Holding Corp. # 2, 57 AD3d 293 [1st Dept. 2008]). Moreover, Defendant has not even demonstrated that Plaintiff's conduct was frivolous or that Chrystie commenced or prosecuted this action in bad faith. Broich v. Nabisco, Inc. , 2 AD3d 474 , 475 (2nd Dept. 2003). Based on the foregoing, this court grants the branch of Plaintiff's summary judgment motion seeking dismissal of Defendant's second counterclaim for attorney's fees. Accordingly, it is hereby
ORDERED that Defendant's cross-motion for summary judgment as to its first counterclaim is granted declaring Ledoux to be a statutory tenant of Unit 6B and dismissing the declaratory judgment action in its entirety; and it is further
ORDERED that Plaintiff's motion for summary judgment is granted solely to the extent of dismissing Defendant's second counterclaim, but is otherwise denied.
The Clerk shall enter judgment accordingly.
This constitutes this Court's Decision, Order and Judgment. Courtesy copies of same have been provided to counsel for the parties.