Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers: NumberedPetitioner’s Notice of Motion 1Respondent’s Affirmation in Opposition 2Petitioner’s Affirmation in Reply 3DECISION/ORDER Petitioner seeks possession of 55 Linden Boulevard, Apt. 3R, Brooklyn, New York 11226 (“premises”), alleging that respondent Gloria Walker is a licensee of the tenant of record Vincent Cuthbert who has since vacated. There is no dispute that the premises are rent stabilized. In her Verified Answer dated June 24, 2016, respondent Gloria Walker alleges that she has been a tenant at the premises for over 14 years. She does not specifically allege succession to Cuthbert’s tenancy in her answer. None of her affidavits, dated March 13, 2017, October 4, 2017, and October 25, 2018, filed in opposition to petitioner’s instant and prior motions allege succession but instead that she moved in with Cuthbert in 1995 and is a tenant.The parties entered into a stipulation dated July 22, 2016 wherein respondent Walker agreed to provide documentary discovery and submit to a deposition in response to petitioner’s demand annexed to its June 20, 2016 motion. Walker also agreed to pay use and occupancy at $1250.00 per month without prejudice. Motion practice followed based on respondent’s allegedly incomplete responses. The last stipulation, dated October 11, 2017 resolving petitioner’s second motion to restore the case to the calendar, provided that respondent Walker was to sit for a deposition on November 14, 2017 but that she had turned over all documentary discovery in her custody. The case was marked off-calendar once again. Deposition was never completed1 and the instant motion followed.Petitioner now seeks an order granting the following relief in this licensee holdover: 1) restoring the case to the calendar; 2) granting summary judgment pursuant to CPLR §3212 in petitioner’s favor essentially dismissing respondent’s succession defense; 3) striking respondent’s answer pursuant to CPLR §3126; 4) sanctions and/or “bust fees” for defaulting on a stipulation dated requiring respondent to appear for deposition; 5) precluding respondent from offering at trial any evidence not produced during discovery; 6) compelling said responses pursuant to CPLR §3124; 7) compelling respondent to appear for a court supervised deposition; 8) ordering a use and occupancy deposit pursuant to RPAPL §745; 9) costs and reasonable attorneys’ fees and expenses; and 10) other relief that this court may deem just and proper.The court grants petitioner’s motion to restore this case to the calendar for all purposes. Other than the outstanding deposition, there is no further documentary discovery to be conducted as respondent Walker already turned over items in her custody as per the October 11, 2017 stipulation. Moreover, no further discovery is anticipated as this court grants petitioner’s motion for summary judgment as discussed below.At the outset, this court recognizes that respondent has not asserted a succession defense. While discovery has addressed issues customarily presented by such a defense, respondent Walker merely states, in her answer and affidavits in opposition to petitioner’s motions, that she is a tenant. Petitioner argues that there are no triable issues of fact surrounding succession in that respondent cannot establish concurrent occupancy for two years prior to Cuthbert’s surrender or that she is a non-traditional family member pursuant to the Rent Stabilization Code §2520.6(o)(2) and Braschi v. Stahl Associates Co., 74 N.Y.2d 201 (1989). Respondent’s opposition does not address this but this is consistent with her failure to plead succession. Therefore, it is inappropriate for this court to rule on a defense that has not been interposed.However, petitioner has established prima facie entitlement to judgment as a matter of law on the defense that Walker is a tenant. Petitioner submits a copy of the deed to the premises that is certified by its attorney pursuant to CPLR §2105; respondent does not challenge this submission. Petitioner also submits attorney-certified copies of the Department of Housing Preservation and Development and Division of Housing and Community Renewal registrations of the premises in support of its showing of prima facie entitlement to a judgment of possession. Walker admits in her affidavits above that Cuthbert vacated the apartment but does not commit to a date (therefore undermining any claim of concurrent occupancy and non-traditional family member status as would be required had she interposed that defense). Petitioner also includes copies of lease renewals between landlord and Cuthbert through and including May 2014.2Respondent does not challenge petitioner’s submissions but does allege that she is a tenant by virtue of co-occupancy with Cuthbert as his fiance. She alleges that he moved out of the apartment and she continued paying the monthly rent. She alleges that the landlord continued accepting rent payments and even commenced a non-payment proceeding against her. There is no admissible proof of Walker’s rent payments to the landlord or that she signed a lease in her own name for the premises. There is no proof of a prior non-payment case against Walker. There is no proof that Walker was ever a rent-stabilized tenant of this unit, as such a relationship cannot be created simply by paying twice in 2003.3The Rent Stabilization Code §2520.6(d) defines tenant as “any person or persons named on lease as lessee or lessees, or who is or are a party or parties to a rental agreement and obligated to pay rent for the use and occupancy of a housing accommodation.” Respondent does not submit any support for her position that the payments above create a rent-stabilized tenancy, nor does she invoke any other theory upon which this court could rely to find a tenancy such as to defeat this licensee holdover. See also Har Holding Co. v. Feinberg, 182 Misc.2d 180 (Sup. Ct. App Term 1st Dep’t 1999)(no proof that petitioner landlord or its predecessor accepted or recognized tenant-of-record’s roommate as a tenant in his own right notwithstanding acceptance of partial rent payments to predecessor).Notwithstanding absence of a succession defense, this court notes that respondent fails to produce any proof at all of Cuthbert’s surrender. There is no proof of her relationship with Cuthbert other than her self-serving statement that she was his fiance.4 There is no proof that she and Cuthbert shared an emotional and financial commitment as a non-traditional family member as set forth in the Rent Stabilization Code §2520.6. All other evidence in opposition to petitioner’s motion is not in admissible form and, while noting that Walker used the premises as her address, still fails to satisfy the requirements of the Rent Stabilization Code §2520.6 such that she could establish a colorable claim of succession.Summary judgment is a drastic remedy that is appropriate only when a proponent can establish that there are no triable issues of fact. See 1540 Wallco, Inc. v. Smith, 2017 N.Y. Misc. LEXIS 43 (N.Y.City Civ. Ct. Bx. Cty. 2017). A proponent of summary judgment must demonstrate that there are no material issues of fact in dispute and that he is entitled to judgment as a matter of law; the evidence must be viewed in favor of the opponent of the motion. Kahona Beach LLC v. Santa Ana Rest. Corp., 29 Misc.3d 1210(A)(Sup.Ct. N.Y. Cty. 2010). Petitioner has sufficiently established prima facie entitlement to summary judgment that respondent Walker is a licensee whose occupancy has been properly terminated by service of the 10-day notice in this case.5Once a movant establishes entitlement to judgment as a matter of law, the burden shifts to opponent to show that triable issues of fact exist. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Respondent failed to do so.Petitioner’s motion for summary judgment pursuant to CPLR §3212 is granted and is awarded entry of a judgment of possession forthwith, execution stayed through and including February 28, 2019 for respondent to vacate. Stay is conditioned upon payment of ongoing use & occupancy at $1250.00 per month, the amount agreed upon in the July 22, 2016 stipulation, by December 20, 2018, January 10, 2019, and February 10, 2019. In event of default in use & occupancy payments set forth above, execution of the warrant of eviction shall accelerate.By virtue of the above, this court does not reach petitioner’s remaining arguments.The foregoing constitutes the Decision/Order of this Court.Dated: Brooklyn, New YorkNovember 30, 2018
