Recitation, as required by CPLR 2219(A), of the papers considered in the review respondent’s Motion to: Amend Answer and summary judgment Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits Stipulations Other Upon the foregoing cited papers, the Decision/Order in this Motion is as follows: This is an owner’s use holdover brought pursuant to RSC §2524.2(a)(b) and (c) (3) and 2524.4(a)(1). According to the notice of non-renewal dated July 19, 2018, the petitioner elects to not renew respondent’s tenancy because he seeks the subject premises for the use and occupancy of an immediate family member. Petitioner seeks respondent’s apartment for his son who wishes to occupy the premises as his primary residence. Respondent is represented by counsel who appeared with a written answer dated November 16, 2018 raising defenses. MOTION TO AMEND ANSWER Now, respondent moves to amend that answer to reflect subsequent changes in the law. Specifically, the changes in the law were enacted on June 14, 2019 in the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”). The HSTPA changed the owner’s use provision in the New York City Administrative Code §26-511 (c) (9) (b).1 Pursuant to §5 of Part I of the HSTPA, the amendment to §26-511(c)(9)(b), “…shall take effect immediately and shall apply to any tenant in possession at or after the time it takes effect, regardless of whether the landlord’s application for an order, refusal to renew a lease or refusal to extend or renew a tenancy took place before this act shall have taken effect.” (HSTPA, L 2019, ch 36, §1, part I, §5 [2019 NY Senate Bill S6458].; Fried v. Lopez, 64 Misc 3d 1025, 1027 (Kings Cty, Civ. Ct. 2019)). The new law creates a standard of “immediate and compelling necessity” as a basis for an owner to recover a unit in the building for his/her personal use as opposed to the prior standard that only required a good faith intention to occupy the premises. It requires the owner to offer an equivalent rent regulated apartment in the neighborhood to any tenant who has lived in the apartment for fifteen (15) or more years. Also, the new provisions limit the owner’s recovery to only one single unit in the building. These particular new sections are the relevant basis for respondent’s motion to amend his answer and for summary judgment. Hence, respondent in his proposed amended answer raises four new defenses. (Exhibit C). The first defense indicates that the notice of non-renewal does not allege sufficient facts. The second defense states that petitioner has not shown “an immediate and compelling necessity” to recover the subject premises. Zagorski v. Makarewicz, 2019 NY Slip Op 29346, 2019 WL 6109562, at *1 (Kings Cty, Civ. Ct. Oct. 31, 2019). The third defense raises a claim that petitioner previously recovered possession of another rent stabilized apartment in the subject building for his daughter and is now barred from recovering a second unit in the same building. The fourth defense claims that respondent has resided at the premises for more than fifteen (15) years and petitioner has not offered him an alternate accommodation as required by the HSTPA. Under CPLR 3025(b), a party must seek leave of court to amend his or her answer, as here, if it has been more than twenty days, after service of the answer. When deciding whether to permit an amended answer, a court considers the following factors: merit to defenses, reason for delay, and prejudice to the petitioner caused by the delay. Norwood v. City of New York, 203 AD2d 147 (1st Dep’t 1994). Upon this Court’s review of the proposed amended answer, respondent has facially presented viable defenses. These defenses include the following: that petitioner has not shown an immediate and compelling necessity to recover the subject premises, that petitioner previously recovered possession of a rent stabilized apartment for his daughter and is now barred from recovering a second unit in the building and that respondent has resided at the premises for more than fifteen (15) years and petitioner has not offered him an alternate accommodation as required by the HSTPA. Also, respondent has shown a valid reason for delay, since these laws were not in effect on November 16, 2018, the date of his initial answer. Therefore, he was unable then to raise these defenses. Moreover, any prejudice to petitioner by the delay in filing the amended answer is outweighed by this Court’s obligation to apply and follow the new changes in the law. Based on the new language in N.Y.C Admin. Code §26-511 (c) (9) (b), the act shall take effect immediately. It shall apply to any tenant in possession at or after the time it takes effect, regardless of whether the landlord’s application for an order, refusal to renew a lease or refusal to extend or renew a tenancy took place before this act shall have taken effect. Clearly, the legislature considered exactly when the act would take effect. It chose to apply it to tenants in possession at or after the time the act took effect, regardless of when the landlord made the application for non-renewal. Hence, it appears that the legislature considered any prejudice to owners by this law and outweighed it with a compelling interest to protect tenants like respondent. Accordingly, respondent’s motion to amend his answer is granted. The proposed verified amended answer as Exhibit C to the motion is deemed forthwith filed and served. MOTION FOR SUMMARY JUDGMENT Summary judgment is appropriate where the movant establishes the claim by tender of evidentiary proof in admissible form sufficient to warrant the court as a matter of law to direct judgment in its favor. Rodriguez v. City of New York, 31 NY3d 312, 317 (2018); Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hospital, 68 NY2d at 324. In determining the motion, the Court must be mindful that summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978). The evidence must be considered in the light most favorable to the party opposing the motion, Henderson v. City of NY, 178 AD2d 129, 130 (1st Dept 1991), and the motion must be denied where conflicting inferences may be drawn from the evidence. Nowacki v. Metropolitan Life Ins. Co., 242 AD2d 265, 266 (2nd Dept 1997). Here, respondent argues that he is entitled to summary judgment because it is undisputed that petitioner previously recovered another apartment in the subject building for his personal use or that of his immediate family. Respondent points to the language in N.Y.C Admin. Code §26-511 (c) (9) (b) that indicates where an owner “seeks to recover possession of one dwelling unit because of immediate and compelling necessity for his or her own personal use and occupancy as his or her primary residence or for the use and occupancy of a member of his or her immediate family as his or her primary residence, provided however, that this subparagraph shall permit recovery of only one dwelling unit…” In support of this contention, respondent attaches to his motion a copy of a notice of petition and petition in Rafael Sassouni v. Donald Knight, Ray Kenny, L/T No.83978/2014 (“the prior proceeding”). (Exhibit D). The prior proceeding was based on a holdover petition where petitioner, Rafael Sassouni, sought possession of apartment 4-C at 19-21 Barrow Street, New York, NY (“the subject building”) from Donald Knight and Ray Kenny for his daughter, as her primary residence. However, according to the non-renewal notice and based on Ray Kenny’s disability, he was offered a comparable apartment, namely apt. 3C at the subject building for his personal use and that of Donald Knight with the same rent as apartment 4C. Respondent also attaches a copy of a stipulation of settlement in the prior proceeding where Donald Knight and Ray Kenny consented to entering into a lifetime lease for apartment 3A at the subject building and to vacate apartment 4-C. (Exhibit E). Lastly, respondent attaches as exhibits an affirmation from his attorney Steven Sperber (Exhibit F) and affidavit from petitioner (Exhibit G) in this matter. Steven Sperber in paragraph 14 of his affirmation dated January 28, 2019 states that the prior proceeding was brought for the petitioner to recover unit 4C for his daughter. Petitioner, Rafael Sassouni, in paragraph 5 of his affidavit states that the prior proceeding was based on a good faith reason to recover apartment 4C for personal use of his daughter. He also states the matter was settled with Donald Knight and Ray Kenny agreeing to relocate to a different unit in the subject building. Petitioner in opposition merely submits an attorney affirmation arguing that respondent has taken out of context the recovery of apartment 4C in the prior proceeding. Specifically, petitioner contends that while it initially commenced an owner’s use against Donald Knight for unit 4C, Mr. Knight “.just moved downstairs within the same building pursuant to a 2- attorney negotiated ‘Agreement.’” (Handel-Harbour Affirm 7). Therefore, petitioner claims that Donald Knight was not evicted for his benefit, rather he was moved into a renovated apartment within the subject building. As such, petitioner contends that this is distinguishable from an eviction for owner occupancy. (Id.). In sum, it appears that petitioner wants to “disqualify” the previous recovery of unit 4C at the subject building as one based on owner’s use. The flaw in this argument is that petitioner in its own notice of non-renewal notice of the prior proceeding recognized that under the law, he had to offer Ray Kenny a comparable apartment, since Mr. Kenny is disabled. Petitioner made the choice to offer Mr. Kenny a comparable apartment at the subject building instead of elsewhere in the proximate area. This was a legal obligation required by N.Y.C Admin. Code §26-511 (c) (9) (b) not a gratuitous offer made by petitioner. Accordingly, this Court will not “disqualify” the recovery of unit 4C at the subject building as one based on owner’s use. Clearly, the recovery of unit 4C was based on owner’s use. Currently, N.Y.C Admin. Code §26-511 (c) (9) (b) limits individual owners of any building to recover possession of one dwelling unit for his or her personal use and/or for his or her immediate family. It takes effect immediately (June 14, 2019), even if the owner’s nonrenewal offer was made before the act took place. “The legislature apparently determined that the policy of restricting the flow of residential units out of the rent stabilization system is valid and necessary. The amendment limiting owners to the recovery of only one apartment and only after establishing immediate and compelling necessity for the personal use is one of the tools employed by the legislature to stem this flow and preserve affordable housing for New Yorkers.” Karpen v. Castro, Index No. 87287/17, NYLJ 12/4/19 (Kings Cty Civil Ct). Therefore, petitioner cannot maintain this owner’s use petition to recover a second unit in the subject building. Here, respondent has shown evidentiary proof in admissible form sufficient to warrant judgment in his favor. (Exhibits A-H). It is undisputed that petitioner on or about February 2015 pursuant to a so ordered stipulation recovered possession of a unit in the subject building. The recovery was based on the owner’s use provisions of RSC §2524.2(a)(b) and (c) (3) and 2524.4(a)(1). This is supported by the following documentary evidence: Exhibit D — notice of petition and petition in the prior proceeding, Exhibit E — stipulation of settlement in the prior proceeding granting petitioner possession of the unit, Exhibit F — affirmation of Steven Sperber, and Exhibit G — affidavit of Rafael Sassouni, admitting that the prior proceeding was based on owner’s use. Petitioner in opposition has not established the existence of material issues of fact requiring a trial of the action. Alvarez v. Prospect Hospital, supra. Accordingly, respondent’s motion for summary judgment is granted. ORDERED that respondent’s motion to amend the answer is granted. ORDERED that respondent’s motion for summary judgment is granted and the petition is dismissed. This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below. Dated: December 6, 2019 New York, NY
