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Civil Court of the City of New York, Kings CountySep 13, 2004
2004 N.Y. Slip Op. 51341 (N.Y. Misc. 2004)


Decided September 13, 2004.

H.J. Joseph, Esq., for the plaintiff.

South Brooklyn Legal Services, Inc. (John C. Gray, Esq., of counsel), for the defendant.

Plaintiff moves for an order pursuant to CPLR § 3212 granting him summary judgement, a judgment of ejectment and a warrant of ejectment, removing defendant from the premises located at 378 Lafayette Avenue Apt. 2C, Brooklyn, NY 11238. Defendant cross-moves for an order pursuant to CPLR § 3211 dismissing the proceedings or, in the alternative, for an order pursuant to CPLR § 3025(b) allowing defendant to serve and file an amended answer.


Plaintiff is the owner of premises located at 378 Lafayette Avenue, Apt. 2C, Brooklyn, NY 11238 (hereinafter "the premises"). He rented the premises to defendant pursuant to a lease which ended on November 30, 2001. (See plaintiff's affidavit in his moving papers). After expiration of the lease, defendant continued to occupy the premises paying a monthly rent to plaintiff until July 2003. The premises is a legal two family dwelling connected to a legal three family dwelling, having only one common entrance. According to the defendant, there is a common entranceway, rooftop, boiler, sewer line and chimney for the entire building (see defendant's affidavit, paragraph 10). Additionally, defendant claims the premises have seven apartments and are therefore, subject to the rent stabilization law (defendant attaches photographs of mailboxes purportedly belonging to the premises).

In December 2003, a non-payment petition was filed in the housing court and assigned index number 109246/2003. In it, plaintiff alleged defendant was "in possession of the premises pursuant to a monthly tenancy by virtue of the expiration of his written rental agreement which expired November 30, 2001." He sought payment of $2750 by virtue of five months of arrears at $550 per month (See non-payment petition, paragraph 5). In his pro-se answer, defendant raised as a defense, the illegality of the apartment. After a number of adjournments and without any reason indicated in the court's file, the proceedings were dismissed on April 5, 2004.

There is no evidence that plaintiff served defendant with a 30 day predicate notice, or with a notice as required by the rent stabilization law. Furthermore, there is nothing to indicate that plaintiff attempted to cure the illegal condition and was unable because it is unduly burdensome or economically not feasible to do so.


In New York, the basis for ejectment actions lie in RPAPL, Article 6. The Civil Court of the City of New York has jurisdiction over an ejectment action when the "assessed value" of the property is not in excess of $25,000 at the time the action is commenced (see NYC Civil Court Act § 203(J)). Plaintiff's moving papers demonstrate that at the time the action was commenced the "assessed value" of the real property did not exceed $25,000; therefore, this court has jurisdiction over this action.

Upon expiration of his written rental agreement defendant entered into an oral monthly tenancy with plaintiff. This monthly tenancy was created by virtue of defendant's tendering and plaintiff's acceptance of rent every month from December 2001 through July 2003 ( Jaroslow vs. Lehigh Valley R. Co., 23 NY2d 991, 246 NE2d 757, 298 NYS2d 999; Real Property Law § 232-C).

A month-to-month tenancy must be terminated by service of a 30 day notice by the landlord or its agent upon tenant ( Triborough Bridge and Tunnel Authority v. Wimpfheimer, 163 Misc2d 412, 620 NYS2d 914); thus a tenant is entitled to a 30 day notice of the landlord's intention to commence an action or proceeding to recover possession ( Weiden v. 926 Park Ave. Corp., 154 AD2d 308, 546 NYS2d 595 (1st Dept. 1989)).

When a valid landlord-tenant relationship existed between plaintiff and defendant, the law in this Department requires that a predicate notice be given to the defendant before commencement of an ejectment action ( Fazio v. Kelly, 2003 WL22227363 (NY Civ. Ct.); Gerolemou v. Soliz, 184 Misc2d 579, 710 NYS2d 513, 2000 NY Slip Op 20292 [App. Term 2nd Dept.]). Absence of such notice requires the dismissal of the action (See Gerolemou, supra).

When six or more residential units share common facilities such as sewer lines, water mains or heating plants and are operated as a single unit under single ownership, they may constitute a horizontal multiple dwelling and be subject to the Rent Stabilization Law (Residential Landlord-tenant Law in NY 2004 Edition § 4:33 p. 424; Matter of Gandler v. Halperin, 232 AD2d 637, 648 NYS2d 998; Wilson v. One Ten Duarte St. Realty Co., 123 AD2d 198, 510 NYS2d 603; 109 Graham Ave. Corp. v. Espinal, NYLJ, May 17, 1988 at 15, col 2[App. Term, 2d 11th Jud. Dist]; Commercial Hotel Inc., v. White, 194 Misc2d 26, 752 NYS2d 779, 2002 NY Slip Op 22211 [App. Term 2nd Dept. 2002)].

Whether a building is a horizontal multiple dwelling is a question of fact to be determined by the court on a case by case basis. No one factor can be said to be determinative (Residential Landlord and Tenant Law in NY, supra at pp. 4-26; First Sterling Corp., v. Catupano, NYLJ, April 8, 1991, at 26, Col 1). When a building is found to be a multiple dwelling not subject to the Rent Control Law, in New York City by operation of law, it is subject to the Rent Stabilization Law (Residential Landlord and Tenant Law in NY, supra at § 4:31 pp. 4-24); RSC 2520.11(d)). The Rent Stabilization Code provides that no tenant shall be evicted unless and until the owner gives written notice to such tenant which states, (1.) the ground under section 2524-3 upon which the owner relies for removal or eviction of the tenant; (2.) the facts necessary to establish the existence of such ground, and (3.) the date when the tenant is required to surrender possession ( 9 NYCRR 2524.2(a), (b), (c); Domen Holding Co., v. Aranovich, 1 NY3d 117, 802 NE2d 135, 769 NYS2d 785; 2524.3(c).

When an ejectment is predicated on NYC RSC 2524-3(c), the landlord has an obligation to cure the illegal condition or show that it would be unduly burdensome or economically infeasable to cure the violation and legalize the occupancy ( McDonnell v. Sir Prize Contracting Corporation, 32 AD2d 660, 300 NYS2d 696 [2nd Dept. 1969]; Matter of KG Co. v. Reyes, 52 Misc2d 606, 276 NYS2d 20; H Casabianca Inc., v. Connobbio, 205 Misc. 380, 127 NYS2d 418).

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id.; Klein v. City of New York, 89 NY2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 NY2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v. Silver, 90 NY2d 204, 208 (1997); Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin Co. v. Mann Judd Landau, 71 NY2d 420, 427 (1988). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. ( SSBS Realty Corp. v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-85 (1st Dept. 1998); Martin v. Briggs, 235 AD2d 192, 196 (1st Dept. 1997)).

Defendant has come forward with sufficient evidence to raise a triable issue of fact; more specifically it must be determined whether the premises are a horizontal multiple dwelling subject to the Rent Stabilization Code as discussed above. Given that issues of fact are outstanding precluding the granting of judgment as a matter of law, plaintiff's motion for summary judgment is hereby denied.

Defendant cross-moves to dismiss on the grounds that plaintiff has failed to serve a 30 day notice as required by the Real Property Law § 232-b. It is evident from a reading of the papers that such notice was not served on defendant prior to the commencement of this action. Absence of such notice requires the dismissal of the action ( Gerolemou v. Soliz, supra). Therefore, defendant's cross-motion is granted.


Issues of fact exist as to whether the premises are a horizontal multiple dwelling subject to the Rent Stabilization Code precluding the granting of judgment as a matter of law to plaintiff. Therefore, plaintiff's motion for summary judgment is denied. Defendant has demonstrated that the action was commenced without service of a 30 day predicate notice as required by law. Therefore, defendant's cross-motion is granted and the action is dismissed.

The foregoing shall constitute the Decision and Order of the Court.