DECISION/ORDER Introduction and Procedural History Petitioner, 24-14 Steinway Street Realty Corp., commenced this holdover proceeding to recover possession of the Basement Apartment located at 24-14 Steinway Street, Astoria, New York 11103 (“Subject Premises”) from Emmanuel “Doe” a/k/a Menios “Doe”, based on the allegation that the Subject Premises is an illegal apartment. On or about May 7, 2018, Petitioner issued a Ten (10) Day Notice of Termination (“Notice of Termination”) that states, in pertinent part: “PLEASE TAKE NOTICE, that your tenancy of the above referenced premises is hereby terminated effective June 14, 2018 pursuant to Rent Stabilization Code §2524.3 (c): Occupancy of the housing accommodation by the tenant(s) is illegal because the requirements of law and the Owner is subject to civil or criminal penalties therefore. The Occupant is residing in an unlawful Basement Apt., that is contrary to a letter of No Objection from the Department of Buildings.” “PLEASE TAKE FURTHER NOTICE, that you are hereby required to quit, vacate and surrender possession of the demised premises to the Landlord, on or before June 14, 2018 and that upon your failure to so quit, vacate and surrender possession, the Landlord will commence appropriate proceeding to recover possession of the premises.” Thereafter, Petitioner commenced this proceeding by service of a Notice of Petition and Petition on or about July 5, 2018. This proceeding first appeared on the Court’s calendar on July 12, 2018, where Respondent appeared pro se and the Court made a referral to Adult Protective Services for Respondent. On September 17, 2018, Respondent appeared through counsel. On February 25, 2019, the Court appointed a Guardian Ad Litem for Respondent. On October 1, 2018, Respondent moved to dismiss the proceeding and, in the alternative, to be granted sufficient time to interpose an answer. Petitioner cross moved for summary judgment. The Court, in a Decision and Order dated April 8, 2019 (“April 2019 Decision”), found that Respondent entered into possession of the Subject Premises allegedly in 2010 when Petitioner’s agent allowed Respondent to occupy the basement room. The Court further stated that it appeared that rent was not charged nor collected for the Subject Premises. The Court also stated that the photographs, annexed to Petitioner’s cross motion, of the Subject Premises depicted a cinder block and cement room with a mattress on the floor, a slop sink, refrigerator and table, and that the room was amidst the buildings pipe, electrical and boiler system. In the April 2019 Decision, the Court granted Respondent’s request for leave to interpose an answer, and denied both Respondent’s request for dismissal of the proceeding as well as Petitioner’s request for summary judgment. Respondent answered the Petition on April 26, 2019, and asserted a general denial as well as the following affirmative defenses: (i) defective predicate notice due to failure to show that Petitioner is facing any actual violations or civil or criminal penalties as required by Rent Stabilization Code (“RSC”) §2524.3 (c); and (ii) failure to accurately state facts upon which this proceeding is based as required by Real Property and Proceedings Law §741 (4). On May 14, 2019, the matter was sent out for trial. The Trial On June 10, 2019, pursuant to a two-attorney stipulation dated June 10, 2019 (“June 2019 stipulation”) and in lieu of a trial, the parties stipulated to the following facts as detailed below and consented to the submission of post-trial memorandums to the Court. The parties also stipulated that the only remaining issue for the Court to determine at trial is whether, in light of the below-stated facts, Petitioner states a cause of action. Petitioner is a domestic corporation and the landlord of the Subject Premises, pursuant to a certified deed. The Subject Premises is 24-14 Steinway Street, Basement Apartment, Astoria, New York 11103, which is situated within the jurisdiction of the Civil Court of the City of New York, County of Queens. The Subject Premises is located in a multiple dwelling and, pursuant to the Housing Maintenance Code, Article 41, there is a currently effective registration statement on file with the Office of Code Enforcement, with a Registered Managing Agent of William Demos, located at 30-05 45th Street, Astoria, New York 11361, multiple dwelling registration number 404187. The building, 24-14 Steinway Street, Astoria, New York 11103 (“Subject Building”) is subject to Rent Stabilization. The Subject Building is registered with the Department of Housing and Community Renewal (“DHCR”). The Department of Housing Preservation and Development (“HPD”) “I” card shows twelve (12) residential units in the Subject Building. The Department of Buildings (“DOB”) Letter of No Objection, dated April 3, 2018 (“April 2018 DOB Letter of No Objection”), discloses twelve (12) family units and the Subject Premises is not one of the twelve (12) units. Petitioner consented to Edward Sawchuk, P.E., (“Sawchuk”) as an expert, without consenting to his determinations and conclusions as an expert. The parties consent to the statements disclosed in the Cellar Habitability Report by Sawchuk, dated June 7, 2019 (“2019 Sawchuk Report”) which is annexed to the June 2019 stipulation, in regard to the expert’s observations of the apartment, without consenting to the determinations and conclusions of the expert. The parties consent that there are no violations, vacate orders, or criminal or civil penalties on file with the Department of Buildings in regard to the Subject Premises. The parties consent that there are no violations on the HPD website in regard to the Subject Premises. Respondent is the occupant of the Subject Premises. The parties consent to amend the caption and pleadings to reflect Respondent as Menios Rigas in place of Emmanuel “Doe” a/k/a Menio “Doe”. Petitioner caused to be served a Ten (10) Day Notice of Termination. Petitioner caused to be served the Notice of Petition and Petition. Respondent waived traverse on all notices and pleadings. The parties agreed to not submit any additional evidence, including but not limited to expert testimony or repairs. Respondent reserved any claims pertaining to personal injury and Petitioner reserved any defense to any such a claim. In its post-trial memorandum, Petitioner argues that it is entitled to recover possession of the Subject Premises. Petitioner argues that Respondent consented to Petitioner’s legal existence and ownership of the Subject Premises. Petitioner argues that the 2019 Sawchuk Report provided that the Subject Premises is an illegal basement apartment that cannot be legalized, and the April 2018 DOB Letter of No Objection found that the Subject Building is a 12 family dwelling and the basement space is not part of the twelve (12) units of the Subject Building. Petitioner also argues that the parties stipulated that the Subject Premises is the basement in the Subject Building rather than one of the twelve (12) family units. Therefore, Petitioner argues that, pursuant to the April 2018 DOB Letter of No Objection and the 2019 Sawchuk Report, it has satisfied the requirements of RSC §2524.3 (c) and it is entitled to possession of the Subject Premises. In his post-trial memorandum, Respondent argues that the Petition fails to state a cause of action and the proceeding must be dismissed. Respondent argues that Petitioner has failed to show that Respondent qualifies as a tenant, and Petitioner consented that Respondent is an occupant of the Subject Premises. Respondent also argues that Petitioner failed to show any proof of any wrongdoing by Respondent as the Petition provides that Respondent entered into occupancy of the Subject Premises with Petitioner’s predecessor-in-interest and he did not create an illegal basement apartment. Thus, Respondent argues that he cannot be evicted as an occupant pursuant to RSC §2524.3 (c). Additionally, Respondent argues that Petitioner has not shown that Respondent’s occupancy of the Subject Premises is illegal, because no violation has been issued by an agency on the illegality of Respondent’s occupancy and Petitioner consented, in the June 2019 stipulation, that there are no violations issued from either HPD or DOB in regard to the illegality of the Subject Premises. Respondent argues that Petitioner has failed to produce any evidence of attempts to obtain the necessary variances or permits from the City to legalize the apartment or produced any evidence from the DOB as to the feasibility to cure the alleged illegality of the Subject Premises. Therefore, Respondent argues that Petitioner has failed to state a cause of action under RSC §2524.3 (c). Findings of Fact and Conclusions of Law RSC §2524.3 (c) provides that: “[w]ithout the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows: (c) [o]ccupancy of the housing accommodation by the tenant is illegal because of the requirements of law and the owner is subject to civil or criminal penalties therefor, or such occupancy is in violation of contracts with governmental agencies.” Thus, if a landlord “elects to evict [a tenant] based on the illegality of the unit”, RSC §2524.3 (c) provides such a ground and “sets forth procedural requirements which [the] landlord must follow” (840 West 3nd Associates v. Zurkowski, 1991 NY Misc Lexis 878 [App Term, 1st Dept 1991]; see DMARC 2007 — CD5 212th St. LLC v. Rijo, 2016 NY Slip Op 50053[U][App Term, 1st Dept 2016]). “Courts interpreting and applying [RSC §2524.3 (c)] have consistently held that a landlord seeking to terminate a rent-stabilized tenancy based on illegal occupancy is obligated to show an actual violation of the law, or that the owner is actually subject to civil or criminal penalties” (Recalde v. Bae Cleaners, Inc., 20 Misc3d 827, 831 [Sup Ct, NY County 2008]; see 210 W. 94 LLC v. Concepcion, 2003 NY Slip Op 50612[A][App Term, 1st Dept 2003]; see also 625 West End, Inc. v. Howard, 2001 NY Slip Op 40496[U][App Term, 1st Dept 2001]). Also, “even where occupancy of an apartment is illegal, and where a violation has been placed for the illegal occupancy, the Rent Stabilization Code has been interpreted to bar termination of the tenancy unless the apartment cannot be legalized” (C & E Assocs. LLC v. Hernandez, NYLJ, May 21, 2008 at 27, col 1 [Civ Ct, NY County 2008]; see 625 West End, Inc. v. Howard, 2001 NY Slip Op 40496[U]). Furthermore, it has been held that “[i]n the absence of any showing that a violation has been placed against the premises or that [the] landlord was actually ‘subject to civil or criminal penalties,’ the proceeding is premature” (JMW 75 LLC v. Wielaard, 47 Misc3d 133 [A][App Term, 1st Dept 2015]); see 625 West End, Inc. v. Howard, 2001 NY Slip Op 40496[U]). The Court notes that the Multiple Dwelling Law “was enacted to protect tenants of multiple dwellings against unsafe living conditions, not to provide a vehicle for landlords to evict tenants on the ground that premises are unsafe” (Sima Realty LLC v. Phillips, 282 AD2d 394, 395 [App Div, 1st Dept 2001]). Additionally, this Court is bound by the doctrine of stare decisis to follow and apply the decisions made by our sister Appellate Division courts in the absence of a contrary decision by the Court of Appeals or by the Second Department Appellate Division (see Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664-665 [App Div, 2d Dept 1984]). Furthermore, the Court also accepts the decisions of our sister courts in the First Department as persuasive (see Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 665). Under the RSC §2520.6 (d), a tenant is defined as “[a]ny person or persons named on a 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 or occupancy of a housing accommodation” (9 NYCRR §2520.6 [d]). Under RSC §2520.6 (1), an occupant is defined as “[a]ny person occupying a housing accommodation as defined in and pursuant to section 235-f of the Real Property Law. Such person shall not be considered a tenant for the purpose of this Code” (9 NYCRR §2520.6 [1]). Real Property Law (“RPL”) §235-f (1)(a) provides that, under that section, a tenant is defined as “a person occupying or entitled to occupy a residential rental premises who is either a party to the lease or rental agreement for such premises or is a statutory tenant pursuant to the emergency housing rent control law or the city rent and rehabilitation law or article seven-c of the multiple dwelling law.” RPL §235-f (1)(b) provides that, under that section, an occupant is defined as “a person, other than a tenant or a member of a tenant’s immediate family, occupying a premises with the consent of the tenant or tenants.” Here, based on the stipulated facts in the June 2019 stipulation and the documentary evidence presented, the Court finds that Petitioner has not sufficiently established its prima facie case. First, Petitioner presented no evidence that Respondent is a tenant of the Subject Premises and Petitioner consented, in the June 2019 stipulation, that Respondent is an occupant of the Subject Premises. There is no evidence that Respondent had a lease with Petitioner’s predecessor-in-interest or that Respondent paid rent for the Subject Premises. Therefore, Petitioner has failed to establish that Respondent is a tenant and that RSC §2524.3 (c) applies to Respondent’s occupancy of the Subject Premises (RSC §2524.3 [c]; 9 NYCRR §2520.6 [d]; 9 NYCRR §2520.6 [1]; RPL §235-f [1][a]; RPL §235-f [1][b]). Secondly, assuming arguendo that Respondent is a tenant, Petitioner has failed to establish its entitlement to possession of the Subject Premises pursuant to RSC §2524.3 (c), because “the statue requires the existence of a violation before a case may be brought pursuant to RSC §2524.3 (c)” and Petitioner consented, in the June 2019 stipulation, that no violation exists (Fernanedez v. Cronealdi, NYLJ, Jan. 25, 2017 at 27, 2017 NYLJ Lexis 195 *3 [Civ Ct, Kings County 2017]; see 625 West End, Inc. v. Howard, 2001 NY Slip Op 40496[U]; see also Recalde v. Bae Cleaners, 20 Misc3d 827, 831-832). Despite the 2019 Sawchuk Report finding that the Subject Premises is an illegal basement apartment that cannot be legalized, Petitioner has presented no evidence that any violation regarding the Subject Premises has been issued by any agency. Furthermore, Petitioner consented, pursuant to the June 2019 stipulation, that there are no violations, vacate orders, or criminal or civil penalties on file with DOB or HPD in regard to the Subject Premises. Furthermore, courts have held that with an actual violation issued an illegal apartment proceeding under RSC §2524.3 (c) is premature (see JMW 75 LLC v. Wielaard, 47 Misc3d 133 [A]; see also 625 West End, Inc. v. Howard, 2001 NY Slip Op 40496[U]). Therefore, under these circumstances, Petitioner has not met its burden of establishing that it is entitled to possession of the Subject Premises pursuant to RSC §2524.3 (c) (see JMW 75 LLC v. Wielaard, 47 Misc3d 133[A]; see also 210 W. 94 LLC v. Concepcion, 2003 NY Slip Op 50612[U]). Conclusion Accordingly, the Petition is dismissed without prejudice. The foregoing constitutes the Decision and Order of this Court, copies of which are being sent to all parties. Dated: September 20, 2019 Queens, New York
