ADDITIONAL INDEX NUMBER LT-072731-18 Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion for: Consolidate Indexes 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: Respondent moves to consolidate these two licensee holdover proceedings against her. The subject building is located at 551 West 183rd Street, New York, NY. The petition under index number 72731/18 seeks to recover possession of apartment 2-room 2 and petition under index number 72732/18 seeks to recover possession of apartment 1- room 3, all located at the same subject building. N.Y. City Civ. Ct. Act §110 (b), allows on the application of any party, or on its own motion, the housing part, unless good cause is shown to the contrary, to consolidate all actions and proceedings pending in such part as to any building. Additionally, CPLR§602(a) authorizes consolidation of cases. The statute provides: “When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” CPLR§602(a); In re New York City Asbestos Litig., 121 A.D.3d 230, 242, (1st Dep’t 2014), aff’d, 27 N.Y.3d 1172 (2016). The language in the statute suggests that joining cases together is designed to “reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases.” Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 A.D.2d 214, 225 (1st Dep’t.1993) aff’d. 82 N.Y.2d 821 (1993). Moreover, “[g]reat deference is to be accorded to the motion court’s discretion” in joining cases together. Matter of Progressive Ins. Co. v. Vasquez, 10 A.D.3d 518, 519 (1st Dep’t 2004). Here, these two holdover petitions involve the same building, same parties and same cause of action. The only difference is the location in the building of the premises sought to be recovered. These petitions involve common questions of law and fact (licensee holdovers) and consolidation of both petitions avoids unnecessary delay and warrants more economical use of the court’s time and that of the parties. This is the very purpose of CPLR§602(a) and N.Y. City Civ. Ct. Act §110 (b). Accordingly, respondent’s motion to consolidate index number 72731/18 and index number 72732/18 is granted. Respondent moves for summary judgment on her claims and defenses that the subject premises is rent stabilized, since the building was built in 1958 and has been used as six or more separate residential units. To succeed on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Stonehill Capital Mgmt., LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016) (citing Alvarez v. Prospect Hosp., 68 N.Y.2d 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.” Id. The drastic remedy of summary judgment may only be granted where, “viewing the facts in the light most favorable to the non-movant, the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact, and the non-moving party has subsequently failed to establish the existence of material issues of fact which require a trial of the action.” Dormitory Auth. v. Samson Constr. Co., 30 N.Y.3d 704, 717 (2018) (internal quotations omitted.) Here, according to respondent, Elizabeth Ross, she moved into the premises (apt. 1, room 3) in October 2015. At the time, the former owner, Dionisia Vasquez, orally agreed to rent her a room for $100 weekly. (Ross Affi’d 2). She began using the room as her home. Several weeks later, she asked to rent an additional room in the building (apt.2, room 2). She states that Ms. Vasquez agreed to rent her the additional room and charged her $700 monthly in total for both rooms. (Ross Affi’d s 4, 5 & 6). Ms. Ross states that the first floor of the subject building has a store and a church. She describes the second floor as two large apartments with four rooming units in each apartment, totaling eight rooms. (Ross Aff’id 7). At least seven of the eight units have locks on the individual doors and the persons occupying them are not related to one another. She had personal conversations with them. (Ross Aff’id 8). There are several open Housing Preservation and Development (“HPD”) violations for the subject building indicating there are illegal rooming units, unlawful occupancy by two roomers and/or file plans to legalize conversion from private dwelling to multiple dwelling use. (Exhibit I). Petitioner in opposition submits an affidavit from Frances Greene. Ms. Greene is president of the corporate petitioner, Yahweh Nissi 183 Corp. According to Ms. Greene, there are currently no residential tenants at the subject premises, since at least June 26, 2017, when petitioner acquired the property. (Greene Aff’id 4). She states that respondent does not reside in the rooms in question but merely uses them as storage for her personal property. (Greene Aff’id 5). In further support of this contention, she indicates that there is video surveillance camera of the property. She has personally observed that respondent does not live in the building and merely comes monthly to take or replace personal property at the subject units. (Greene Aff’id 6). Ms. Green states that former owner, Dionisia Vasquez, is her eighty year old mother and that her mother gave respondent permission to rent the subject units for storage only. (Greene Aff’id 8). She contends that no person has ever resided at the premises with a lease and that they have either had family residing in the apartments or visiting from abroad. (Greene Aff’id 11). Lastly, Ms. Greene indicates that respondent never paid rent to petitioner. (Greene Aff’id 10). Respondent in reply asserts that petitioner’s affidavit in opposition fails to rebut her contention that the premises are rent stabilized. Specifically, respondent claims that Ms. Greene’s affidavit in opposition is hearsay, vague, self-serving, lacking probative value and contrived to avoid summary judgment. Upon review of the respondent’s motion, including her affidavit and supporting documents and petitioner’s affidavit in opposition, this Court finds that these affidavits from Ms. Ross and Ms. Greene present conflicting material issues of fact which require a trial of the action. Respondent contends she resides at the premises and that there are or were six or more rooming units in the subject building. Petitioner states that respondent does not reside at the premises but merely uses it for storage, that no person has ever resided at the premises with a lease and that they have either had family residing in the apartments or visiting from abroad. Accordingly, respondent’s motion for summary judgment is denied. Alternatively, respondent moves for discovery regarding her “defacto” rent stabilization defense. In summary proceedings leave to conduct discovery may be granted where the movant demonstrates a meritorious claim, ample need, that the discovery sought is tailored to the facts of the case, and no prejudice to the opposing party. New York University v. Farkas, 121 Misc.2d 643 (Civ. Ct. NY Cty 1983). Here, respondent facially has a viable “defacto” rent stabilization defense. She has shown ample need for the discovery sought in the annexed Notice to Produce Documents (Exhibit P), Notice to Produce Interrogatories, (Exhibit Q) and Notice to Take Deposition (Exhibit R). The discovery sought is tailored to the facts sought in her “defacto” rent stabilization defense in her answer. Lastly, the documents sought present no prejudice to petitioner who should not be surprised by those sought. These are typical documents sought in a “defacto” rent stabilization defense. Accordingly, petitioner is to provide all the documents sought in the annexed Notice to Produce Documents (Exhibit P), except items 1 through 9 will be limited to the period January 2015 through the present, and Notice to Produce Interrogatories (Exhibit Q), except items 2 and 4 will be limited to the period January 2015 through the present, within 45 days of the date of this decision. Upon completion of the document production and responses to interrogatories, then the parties are to schedule a deposition of petitioner. The matter is marked off calendar pending the completion of the above discovery. ORDERED: respondent’s motion to consolidate is granted. ORDERED: respondent’s motion for summary judgment is denied. ORDERED: respondent’s motion for discovery is granted. This is the decision and order of the court. Copies of this decision will be emailed and mailed to the parties indicated below. Dated: December 24, 2019
