294 5th Avenue Realty Partners LLC v. Jimenez

Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc No: 27-51. DECISION AND ORDER PROCEDURAL POSTURE AND ARGUMENTS This is a non-payment proceeding commenced against Yolanda Jimenez (“respondent”) the rent-controlled tenant of record. Petitioner seeks rent in the amount of $152.00 per month from October 2019 through August 2023. (NYSCEF Doc No. 1, petitioner 7.) Respondent’s statutory successor tenancy vested on or about April 17, 2004, when her mother passed away. Four generations of respondent’s family have resided in Apartment 4L at 294 5th Avenue, Brooklyn, New York. Respondent herself has resided in the subject apartment her whole life. (NYSCEF Doc No. 29, Jimenez affidavit 2.) Apartment 4L is one of two remaining rent controlled units in this building. The tenant of record of Apartment 4R, the other remaining rent-controlled apartment, is respondent’s mentally and physically disabled cousin, Alberto Jimenez. (Id. 22.) In August 2017, petitioner acquired the building in foreclosure. (NYSCEF Doc No. 30 at 5-14, respondent’s exhibit B, deed.)¹ Three months later, petitioner commenced a squatter holdover proceeding against respondent’s children, Naija Vargas and Anthony Lucero, and Jane Doe and John Doe, pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §713 (7). This proceeding was dismissed “with prejudice” as to the claim that the named respondents were squatters.² Respondent appeared in that proceeding and submitted an affidavit in her name in support of dismissal. The order states that the named respondents “are not licensees or squatters as acknowledged by petitioner through counsel.”³ The court reserved petitioner’s right “to commence a good faith proceeding (emphasis added).”⁴ It is strongly implied by the court’s plain words that the court found commencement of that holdover proceeding not to have been in good faith. Respondent was represented by the same legal services organization as represents her herein. Petitioner was represented by Tenenbaum Berger & Shivers LLP. On February 28, 2018, respondent commenced a “Housing Part (HP) proceeding” to obtain repairs.⁵ The proceeding was ultimately settled on September 5, 2019, for a waiver of all rent owed through September 2019. The stipulation also provided for a $10,000 payment of “damages” to “each tenant of record in Apartment 4L and Apartment 3R.” (NYSCEF Doc No. 30 at 18-20, respondent’s exhibit D, so-ordered stipulation of settlement in Yolanda Jimenez, et al. v. 294 5th Ave. Realty Partners LLC, DHPD, Civ Ct, Kings County, index No. LT-000943-18/KI.) A transcript of a deposition provided by respondent from a 2020 personal injury proceeding brought against petitioner by Angel Montalvo (the tenant in Apartment 3R who was a petitioner in the previously mentioned HP proceeding, along with respondent herein) indicates that on the date of the deposition, December 16, 2022, petitioner was aware that respondent resided in the premises.⁶ Specifically, the deponent testified that his “cousin, Yolanda Jimenez, could testify” to relevant facts.⁷ When asked if respondent resides in the same building as the deponent — who had previously testified that he resided at 294 5th Avenue, Apartment 3R — the deponent answered, “Yes, she does.” When asked which apartment respondent resides in, the deponent answered, “4L. I was trying to say she’s been here longer than I have been here.”⁸ On January 9, 2023, petitioner commenced a second squatter holdover proceeding for the subject premises, only naming a fictitious “Janice Smith,” “John Doe,” and “Jane Doe.”⁹ Respondent was represented by the same legal services provider that represents her herein; she raised harassment, violation of the warranty of habitability, order to correct for repairs, and attorney’s fees as counterclaims in her answer.¹⁰ Petitioner was represented in that proceeding by Kucker Marino Winiarsky & Bittens, LLP, a different law firm from that which represented petitioner in the prior squatter holdover proceeding, but the same law firm that represents petitioner in the immediate proceeding. The proceeding was transferred in July 2023 for trial on respondent’s counterclaim for harassment; petitioner represented it was not seeking to move forward with its claim.¹¹ Two months later, while that proceeding was still pending, petitioner commenced the instant proceeding. The parties discontinued the second squatter holdover proceeding in February 2024, whereby respondent withdrew her counterclaims without prejudice to pursuing them in the instant proceeding, and petitioner consented to respondent filing an amended answer in the instant proceeding, including her harassment counterclaim that was raised in the second squatter holdover proceeding.¹² Respondent filed her amended answer and counterclaims in the instant proceeding on March 6, 2024. (NYSCEF Doc No. 19.) On April 17, 2024 the parties entered into a stipulation, whereby respondent was to file an amended motion (having previously moved for, inter alia, dismissal of the petition pursuant to CPLR 3212, civil penalties, injunction against harassment, and sanctions) to allow for the additional relief sought of, inter alia, a 100 percent rent abatement pursuant to Multiple Dwelling Law (“MDL”) §302-a (3) (c). (NYSCEF Doc No. 34, stipulation with briefing schedule.) The stipulation reflects respondent’s tender to petitioner of checks totaling $7,144.00, “earmarked for the alleged arrears sought in the petition,” and that petitioner is to hold the checks in petitioner’s escrow account as an “alternative” to the requirement under MDL §302-a (3)(c) that the respondent deposit the monies into court. (Id. 2.) Petitioner reserved defenses “with regard to the deposit,” but has nowhere advanced any quarrel regarding the timing or amount of the deposit. Accordingly, the court deems the deposit timely made pursuant to MDL §302-a (3) (c).¹³ Now before the court is respondent’s motion seeking (1) summary judgment to dismiss the petition due to the rent-impairing violations pursuant to MDL §302-a, and due to petitioner heretofore disavowing respondent’s tenancy; (2) issuing a 100 percent rent abatement for the period of October 2019 through the present pursuant to MDL §302-a; (3) an injunction against future harassment and imposing civil penalties pursuant to Sections 27-2005 and 27-2115 (m) (2) of the New York City Administrative Code; (4) sanctions against petitioner for frivolous conduct; and (5) attorneys’ fees, costs and disbursements. (NYSCEF Doc No. 27, notice of motion [sequence 3].) Respondent argues that petitioner should be precluded from seeking rent from her until petitioner recognizes her as a tenant, and that she had no obligation to pay rent “for a period in which [petitioner] failed to recognize [her] tenancy.” (NYSCEF Doc No. 28, respondent’s attorney’s affirmation 43.) Respondent cites to several distinguishable appellate cases involving a rent stabilized successors in interest, and one Appellate Term, First Department decision involving a rent controlled successor, Edelstein & Son, LLC v. Levin, 8 Misc 3d 135 (A), 2005 NY Slip Op 51190(U) (App Term, 1st Dept 2005), which does not support her position. Edelstein & Son, LLC simply stands for the proposition that a successor to a statutory tenancy is not responsible for the arrears accumulated by the previous statutory tenant prior to that tenant’s death. That case is not apropos the facts of this case. Respondent argues that she is entitled to a finding of harassment based on the two prior squatter holdover proceedings in which respondent was not named, despite petitioner knowing her name, and knowing that she is a rent controlled tenant. This also forms the basis for respondent’s motion for sanctions against petitioner.^14,15 In support of her motion for a 100 percent rent abatement from October 2019 — the month immediately following the stipulation in the HP proceeding, whereby petitioner (named as a respondent in that proceeding) waived arrears through September 2019 — to present, based on the existence of rent impairing violations, respondent advances that “[m]ultiple rent impairing conditions have existed at the building for years.” (NYSCEF Doc No. 28, respondent’s attorney’s affirmation 15.) In support, respondent attaches as Exhibit K an HPD violations report dated April 18, 2023, which indicates that there are rent impairing violations, denoted by an asterisk (*) next to the violation’s three-digit order number, that have not been certified as corrected.¹⁶ (NYSCEF Doc No. 30 at 215-224.)¹⁷ More specifically, the HPD violations report shows there are two (2) rent impairing violations in the common areas of the building (Violation Number 11207130, Order Number 567*¹⁸; Violation Number 12496122, Order Number 176*¹⁹), and two (2) rent impairing violations in respondent’s apartment (Violation Number 13710758, Order Number 507*²⁰; Violation Number 13710746, Order Number 507.*²¹) Respondent’s allegations regarding “serious HMC violations” that petitioner allowed to “go uncorrected for years at a time” also form the basis of respondent’s claim of harassment for repeated failure to correct hazardous or immediately hazardous violations. (NYSCEF Doc No. 28, respondent’s attorney’s affirmation 62.) Petitioner opposes a 100 percent rent abatement premised on rent impairing violations, on the basis that the violations of record that constitute rent impairing violations have all, in fact, been remediated since June 2023, notwithstanding that the violations of record have not been certified as corrected with HPD. (NYSCEF Doc No. 35, Shapiro affidavit

9-14.) In reply, respondent argues that, based upon this acknowledgement, “there is no dispute that [r]espondent is entitled to a 100 percent rent abatement for the months [of] October 2019 through June 2023, constituting forty-four out of the total forty-six months sought in the [p]etition.” (NYSCEF Doc No. 50, respondent’s attorney’s reply affirmation 6.) Respondent further notes that the rent impairing violations have not been certified as corrected. (Id. 7.) This is only partially true. The roof violations were “deemed complied” as of July 10, 2024; the violation for infestation of rodents in the cellar remains uncertified. Specifically, petitioner avers that HPD Violation 12496122, regarding the need for a fireproof egress from the yard to the street, was “fully remediated on or about June 1, 2023, when [p]etitioner’s contractor completed renovating a first-floor unit in the [b]uilding….” (NYSCEF Doc No. 35, Shapiro affidavit