17-361. 156 PRINCE STREET, LLC, pet-lan-app, v. MARTIN ROTHSTEIN, res-ten, -and- FRANK ROTHSTEIN, res-unt-res — Order (Michael L. Weisberg, J.), dated November 14, 2016, affirmed, with $10 costs.Civil Court properly granted respondent-undertenant’s cross motion for summary judgment dismissing the holdover petition. The summary judgment record conclusively establishes that the defaulting record tenant, Martin Rothstein [Martin], leased the subject rent stabilized apartment in 1989, paid only the first month’s rent and never resided in the apartment; that the parties to the lease were fully aware from the inception of the lease that Martin was renting the premises for the exclusive use of his son, undertenant Frank Rothstein; and that for the next 23 years undertenant never concealed his occupancy from the predecessor landlords and paid rent directly to them until petitioner-landlord purchased the subject building in October 2012. Indeed, the long-term predecessor owner of the premises submitted an affidavit admitting that he “knew from the inception of the lease that Martin would not ever be living in the subject apartment” and “only Frank would be living in the apartment,” that with the exception of the first month’s rent, “Frank sent the rent…every month” and that the rent was “willingly accepted…from Frank because Frank was [the] tenant, not Martin.”On this record, Civil Court correctly held that while Martin was the nominal tenant, the “actual contemplated resident” and “true occupant,” understood as such from the inception of the tenancy, was tenant’s son, Frank, who, in fact, has primarily resided in the apartment from the outset, and who is therefore within the class of those entitled to protection under the rent stabilization scheme (7 W. 87th St. v. Silverberg, 1 Misc 3d 35, 36-37 [2003]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 4, 201717-169. BR 31, LLC, pet-lan-res, v. STEVEN LANDESS AND KATLLYN LLEWELLYN, res-ten-app, -and- “JOHN DOE” AND/OR “JANE DOE,” res-unt — Order (Anne Katz, J.), dated June 29, 2016, insofar as appealed from, reversed, with $10 costs, tenants’ motion for summary judgment dismissing the petition granted, and the matter is remanded for a hearing to determine the reasonable value of attorneys’ fees due tenants.This holdover proceeding, based upon allegations that the subject loft unit was deregulated by virtue of the predecessor owner’s 2008 purchase of improvements belonging to a prior tenant (Nartowicz), should have been dismissed on tenants’ motion for summary judgment.The evidentiary proof submitted by tenants conclusively establishes that the 2008 transaction between the prior owner and Nartowicz did not constitute a sale of improvements that removed the unit from rent regulation (see Multiple Dwelling Law §§286[6] and 286[12]; see also Matter of Thorgeirsdottir v. New York City Loft Bd., 77 NY2d 951, 953 [1991]). The 2008 written agreement relied upon by landlord, in which Nartowicz agreed to surrender possession of the loft unit and “remove all personalty” in exchange for $20,000, did not mention any improvements, and the prior landlord never filed a record of any sale of improvements as required by 29 RCNY 2-10. Thus the 2008 transaction cannot be viewed as any deregulating event (see 73 Tribeca LLC v. Greenbaum, 44 Misc 3d 16 [2014]; Ryan v. Salva Realty Corp., 2011 NY Slip Op 31918[U] [Sup Ct, New York County 2011]).In opposition, landlord failed to raise any triable issue. Since the 2008 written agreement was clear and unambiguous, and contained a general merger clause, landlord’s attempt to introduce extrinsic evidence tending to show that the parties contemplated a sale of improvements, should have been rejected (see Macy’s Inc. v. Martha Stewart Living Omnimedia, Inc., 127 AD3d 48, 55 [2015]; see also Innophos, Inc. v. Rhodia, S.A., 38 AD3d 368, 369 [2007], affd 10 NY3d 25 [2008]). In any event, this extrinsic evidence, consisting of an affidavit by Nartowicz that contradicts his prior affidavit dated just nine days earlier, was obviously calculated to create a feigned issue of fact (see Saavedra v. 89 Park Ave. LLC, 143 AD3d 615 [2016]).As the prevailing parties, tenants are entitled to recover their reasonable attorneys’ fees pursuant to the lease and the reciprocal provisions of Real Property Law §234, and the matter is remanded for an assessment on that issue.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 4, 2017By: Schoenfeld, J.P., Ling-Cohan, Gonzalez, JJ.17-333/334. NYCHA PUBLIC HOUSING PRESERVATION I LLC, MANAGED BY NEW YORK CITY HOUSING AUTHORITY-FREDERICK E. SAMUEL APTS. HOUSES, pet-lan-res, v. CHARLOTTE ANDERSON, res-ten-app — Order (Anthony Cannataro, J.), dated July 28, 2016, reversed, without costs, renewal granted and matter remanded for a traverse hearing to determine whether the court had jurisdiction to render the default final judgment. Appeal from order (Anthony Cannataro, J.), dated May 16, 2016, dismissed, without costs, as academic.The affidavit of service established that the process server delivered a copy of the petition and notice of petition to a person of suitable age and discretion at the subject commercial space, located at 2529 Adam Clayton Powell Blvd., and then mailed a copy of the petition and notice of petition to tenant at the same address. The papers submitted in support of tenant’s renewed motion to vacate the default suggests that prior to such service, landlord had “written information of the residence address” of tenant (RPAPL 735[1][a]), located at 102 Bradhurst Ave, in Manhattan. This evidence was sufficient to rebut the presumption of proper mailing by showing that process was mailed to an incorrect address (see RPAPL 735[1][a]; Northern v. Hernandez, 17 AD3d 285 [2005]), thus necessitating a traverse hearing (see Chaudry Constr. Corp. v. James G. Kalpakis & Assoc., 60 AD3d 544 [2009]; see also Matter of Pasanella v. Quinn, 126 AD3d 504 [2015]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 4, 2017By: Lowe, III, P.J., Schoenfeld, Shulman, JJ.17-364/367. STRATA REALTY CORP., pet-lan-app, v. ROSA PENA, res-ten-app, -and- JOHN DOE AND JANE DOE, res-unt — Final judgment (Laurie L. Lau, J.), entered April 4, 2016, and order (Laurie L. Lau, J.), dated November 21, 2016, affirmed, without costs. Appeal from order (Laurie L. Lau, J.), dated September 20, 2016, dismissed, without costs, as academic.A fair interpretation of the voluminous trial evidence supports the trial court’s fact-laden determination that tenant committed a nuisance (see Rent Stabilization Code [9 NYCRR] §2524.3[b]) by repeatedly filing complaints against landlord relating to conditions in the apartment, resulting in the placement of violations, and then consistently refusing to allow landlord to make necessary repairs. As the trial court aptly put it, tenant “complained to government agencies of conditions in the apartment but would not allow [landlord] to address those conditions in the way that [landlord] believed would be appropriate and her refusal was not based on any repair standards, but, rather, was based upon a visceral distrust of [landlord].” Inasmuch as the underlying conditions in the apartment for which repairs were required, including the removal (by tenant) of carbon monoxide/ smoke detectors and window guards, and the presence of vermin and lead paint, threaten the health and safety of others in the building, tenant’s ongoing, continuing interference with, or refusal to allow, landlord to cure the violations constituted a nuisance (see 12 Broadway Realty, LLC v. Levites, 44 AD3d 372 [2007]; Pefko Realty, LLC v. Nissim, 34 Misc 3d 129[A], 2011 NY Slip Op 52304[U] [App Term, 2d, 11th and 13th Jud Dists [2011]).Tenant was not entitled to a further opportunity to cure, since her conduct occurred over a substantial period, had not abated although she had been given ample opportunities during the protracted proceedings below, and tenant’s pattern of behavior shows no sign of abating (see Cabrini Terrace Joint Venture v. O’Brien, 71 AD3d 486 [2010], lv dismissed sub nom Terrace v. O’Brien, 15 NY3d 888 [2010]; Matter of Chi-Am Realty, LLC v. Guddahl, 33 AD3d 911 [2006]; see also Zipper v. Haroldon Ct. Condominium, 39 AD3d 325 [2007], lv dismissed 9 NY3d 919 [2007]). Indeed, the underlying problem of tenant’s interference with landlord’s ability to make repairs is long-standing, as is evident by the length of this 2011 proceeding and the parties’ 2007 stipulation.Tenant’s argument that a notice to cure was required is without merit, since the proceeding was premised upon the theory of nuisance as set forth in the notice of termination, not breach of the lease (see 9 NYCRR §2524.3[b]; Kast Realty, LLC v. Houston, 2003 NY Slip Op 50892[U] [App Term, 1st Dept 2003]). To the extent the original (1976) lease executed by tenant’s husband required service of a notice to cure where objectionable conduct is alleged, any noncompliance with this requirement, to the extent applicable, is not fatal to its holdover petition, given that the cumulative pattern of tenant’s course of conduct that continued over a period of years is incapable of any meaningful cure (see Herald Towers, LLC v. Perry, 2003 NY Slip Op 50564[U] [App Term, 1st Dept 2003]). The fact that a lease provides time for a cure does not necessarily imply that a means or method to cure must exist in every case (see Adam’s Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 [App Term, 1st Dept 2000]). Manifestly, this case involves a type of default that cannot be cured within the 5-day period provided in the lease (see Definitions Personal Fitness, Inc. v. 133 E. 58th St. LLC., 107 AD3d 617 [2013]). To insist upon the service of a formal notice to cure in such circumstances is to compel the performance of a useless and futile act.The notice of termination served by landlord was reasonable in light of the attendant circumstances (see Oxford Towers Co. v. Leites, 41 AD3d 144 [2007]; Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1996]). Tenant’s remaining arguments have been considered and rejected.In view of our disposition, we do not reach the issues raised on landlord’s cross appeal.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 4, 2017
