The following papers numbered 1 to 3 read herein:Papers NumberedNotice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed 1-2Opposing Affidavits (Affirmations) 3Reply Affidavits (Affirmations)Affidavit (Affirmation)Other PapersDECISION, ORDER AND JUDGMENTUpon the foregoing papers, defendants Joann Jones, Suzette Hamilton and Phyllis Jones move for an order, pursuant to CPLR 3211 (a) (5) and 3212, granting summary judgment dismissing the complaint of plaintiff Jacob Marion LLC. Plaintiff is the present owner of a multiple dwelling located at 82 Marion Street in Brooklyn. On October 21, 2015, plaintiff commenced this action to eject defendants, who are the occupants of apartments 2L, 3L and 4L of plaintiff’s building, recover possession of said units and for other relief including an award of use and occupancy and damages. Prior to the commencement of this action, plaintiff instituted summary holdover proceedings in Housing Court against each defendant. By orders dated July 29, 2015, August 3, 2015, and August 6, 2015, the Housing Court (Gary F. Marton, J.) granted each of defendants’ motions for summary judgment and dismissed the petitions on the ground that the apartments are subject to the Rent Stabilization Law.In the instant action, plaintiff acknowledges that the subject units are rent stabilized. However, plaintiff maintains that the defendants are not entitled to occupy the subject units as their purported leases are invalid or otherwise fraudulent. The leases presented by defendants were entered into with Alex Vaveris, the owner or employee of Federated Housing Realty Corp. (Federated) as landlord or entered into with Federated as landlord. Plaintiff alleges that Federated was merely a note holder which maintained a prior foreclosure action involving the subject building and neither Federated nor Vaveris ever owned the building or had the authority to enter into leases.In their answer, defendants set forth affirmative defenses and/or counterclaims that defendants occupied the subject units pursuant to valid leases, that plaintiff is judicially and collaterally estopped by the Housing Court decision dismissing the holdover petitions from challenging defendants’ right to occupy the units, that plaintiff failed to state a cause of action with respect to its claims for fraud, rescission and unjust enrichment and that plaintiff engaged in harassment and breached the warranty of habitability.Upon the ground that defendants’ leases were invalid, plaintiff moved, by order to show cause, for an order granting summary judgment, dismissing the affirmative defenses and counterclaims in defendants’ answer and directing a money judgement in favor of plaintiff for rental arrears and continued use and occupancy until defendants were evicted. By order dated March 17, 2016, this court denied plaintiff’s motion, stating, in relevant part:Judge Marton has held that respondents in this action are tenants and that the building is subject to rent stabilization, so plaintiff is barred by the doctrines of collateral estoppel and res judicata from contesting respondents’ tenancies. Further, a preliminary award of use and occupancy in this proceeding is denied as plaintiff has an adequate remedy at law and the legal stabilized rents for the respondents’ apartments has not been determined. Further, respondents have raised warranty of habitability claims.Plaintiff appealed this court’s March 17, 2016 order to the Appellate Division, Second Department. By decision dated January 30, 2019, the Appellate Division affirmed those parts of this court’s order denying plaintiff’s motion to dismiss the affirmative defenses of defendants and for summary judgment on the complaint. The Appellate Division stated, in part:“The plaintiff failed to demonstrate that the defendants’ affirmative defenses lack merit as a matter of law, as required under CPLR 3211 (b) (see Gonzalez v. Wingate at Beacon, 137 AD3d 747, 747 [2016]; Bank of N.Y. v. Penalver, 125 AD3d 796, 797 [2015]).***“Here, although the plaintiff asserts that no tenancy ever existed, which is contrary to the position it maintained in the prior holdover proceedings in the Civil Court (see Jacob Marion, LLC v. “Doe”, 58 Misc 3d 155[A], 2018 NY Slip Op 50191[U], *2 [App Term, 2d Dept, 11th & 13th Jud Dists 2018]), the true nature of the plaintiff’s claim in this action is that the defendants are not tenants protected under the Rent Stabilization laws. This, however, is exactly what the plaintiff contended in the prior holdover proceedings which were dismissed by the Civil Court. Therefore, the practical import of the Civil Court’s determinations that the subject premises are rent-stabilized was that the defendants’ tenancies also are protected under the Rent Stabilization laws (see Altschuler v. Jobman 478/480, LLC., 135 AD3d 439, 440 [2016]; Gersten v. 56 7th Ave. LLC, 88 AD3d 189, 199 [2011]). Accordingly, the plaintiff failed to demonstrate that the defendants’ affirmative defenses of res judicata and collateral estoppels are without merit as a matter of law.“With respect to the defendants’ affirmative defense based on the existence of valid leases, triable issues of fact preclude dismissal pursuant to CPLR 3211 (b) (see Atlas Feather Corp. v. Pine Top Ins. Co., 128 AD2d 578, 578-579 [1987]). These triable issues of fact also preclude granting summary judgment to the plaintiff on the complaint, as the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on the complaint, regardless of the sufficiency of the defendants’ papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853)” (Jacob Marion, LLC v. Jones, 168 AD3d 1043, 1044-1045 [2d Dept 2019]).Shortly after the Appellate Division issued its decision, defendants brought the instant motion for summary judgment dismissing the complaint on grounds of res judicata.“The doctrine of res judicata ‘operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding’” (Luscher v. Arrua, 21 AD3d 1005, 1006-1007 [2d Dept 2005], quoting Koether v. Generalow, 213 AD2d 379, 380 [2d Dept 1995]). The overarching issue which was undisputedly litigated and decided in the Housing Court proceedings was that the subject apartments remain subject to rent stabilization and that defendants’ tenancies could not be terminated. Indeed, the Appellate Division noted that “the practical import of the Civil Court’s determinations that the subject premises are rent-stabilized was that the defendants’ tenancies also are protected under the Rent Stabilization laws.”Plaintiff contends that the Appellate Division found triable issues of fact as to whether the leases presented by defendants are valid, and thus defendants cannot claim that the Appellate Division decision has collateral estoppel or res judicata effect on defendants’ defense that those leases were valid. While there was no finding by the Appellate Division that the leases are valid as a matter of law, the issue on appeal before the panel was only whether the defense was without merit as a matter of law. The Appellate Division found the defendant’s had shown a question of fact which would preclude striking the defenses. However, the validity of a particular lease has no bearing over defendants’ statutory right to occupy the subject apartments pursuant to the Rent Stabilization Law. Plaintiff became the owner of the subject property on May 28, 2014. In the underlying Housing Court proceedings, it was undisputed that defendant Joann Jones “became a tenant in or about August, 2010″ (Jacob Marion LLC v. Jones, Civ Ct, Kings County, July 29, 2015, Marton, J., index No. 86886/14), defendant Hamilton “became a tenant in or about August, 2010″ (Jacob Marion LLC v. Hamilton, Civ Ct, Kings County, August 3, 2015, Marton, J., index No. 86891/14) and defendant Phyllis Jones “became a tenant in or about April 2013″ (Jacob Marion LLC v. Jones, Civ Ct, Kings County, August 6, 2015, Marton, J., index No. 86893/14). Section 2520.6 (j) of the Rent Stabilization Code defines a permanent tenant as an individual who has “continuously resided in the same building as a principal residence for a period of at least six months.” The fact that defendants never entered into any formal agreements with plaintiff, or that defendants’ purported lease agreements were invalid, does not deprive defendants of their rights under the statute as the Housing Court found that defendants occupied the units as tenants for over a year prior to plaintiff taking title to the building (see Smiley v. Williams, 26 Misc 3d 170, 174 [Civ Ct, NY County 2009]). Moreover, while plaintiff argues that the issue of the validity of defendants’ leases was not conclusively resolved by the Appellate Division, plaintiff fails to mention in its opposition papers the decisions issued by the Appellate Term, Second Department, dated February 9, 2018, which affirmed the Housing Court orders denying the holdover petitions as well as those orders which denied plaintiff’s motions to renew. Plaintiff based each of its motions to renew on “newly discovered evidence of an invalid and possibly forged written lease.” The Appellate Term noted that plaintiff asserted “for the first time in this proceeding, that Vaveris had not been authorized to execute a lease” with defendants and that plaintiff “itself had never intended to create a tenancy of any kind with” defendants (Jacob Marion, LLC v. “Doe,” 58 Misc 3d 155[A], 2018 NY Slip Op 50191[U], *2 [App Term, 2d Dept, 11th & 13th Jud Dists 2018]). The Appellate Term further noted that plaintiff’s “new theory-that no tenancy ever existed-contradicts its notice of termination and its petition” (id.).Because the issues of the validity of the leases and the validity of defendants’ tenancies were raised before and rejected by the Housing Court and Appellate Term, plaintiff is barred by the doctrine of res judicata from re-litigating those issues here.WHEREFORE, is hereby ORDERED, that defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and 3212 is granted and Defendant’s are granted Judgment dismissing the complaint. The foregoing constitutes the decision, order and judgment of the courts.
