Dom Ben Realty Corp. v. Beato

2024 NY Slip Op 33656(U)

• Court: New York Supreme Court, Kings County
• Decided: October 2, 2024
• Docket: Index No. 521828/2020
• Status: Unpublished

Opinion

Dom Ben Realty Corp. v Beato 2024 NY Slip Op 33656(U) October 2, 2024 Supreme Court, Kings County Docket Number: Index No. 521828/2020 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 10/10/2024 04:19 PM INDEX NO. 521828/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 10/10/2024

At At an IAS lAS Part pari 83 of of the Suprem Supremee Court Court of of the the State State of New York of New York held held in and for the County County of of Kings Kings at 360 Adams Adams S S~ ~ Brookl yn,New Brooklyn, New York, York, on the the cf). ,t). day Ocl-6 of b0h5 ~ of ~ , 2024. 2024.

PRESENT: HON. PRESENT: INGRID JOSEP HON. INGRID JOSEPH, H, J.S.C. J.S.C. ' . SUPRE SUPREME ME COUR COURTT OF THE THE STATE STATE OF NBW NEW YORKYORK COUN COUNTY TY OF KINGS KINGS Index 521828/2020 Index No: 521828/2020 --------- --------- ------------------------------------: _________ · -----X ------------------------------------------------------~---------------){ DOM DOM BEN BEN REALT REALTYY CORPOCORPORATION, RATION,

Plaintif Plaintiff,f, DECIS ION AND DECISION AND -agains -against-t- ORDE ORDERR

ULISE ULISESS BEA BEATO, TO,

Defend ant, Defendant,

GERA RD BARO GERARD N, "JOHN BARON, "JOHN DOE" DOE" and "JANE "JANE DOE" DOE"

Defendants-Un Defendants- dertenants. Undertenants. --------- --------- --------- ------------. ------------- .------. ---. -----X ------------------------------------------------------------~---~---~-){ The followi ng e-filed following papers conside e-filed papers considered herein: red herein: NYSCEF Doc. Nos. NYSCEF Nos. Notice of Notice of Motion /Affidavit in Suppor Motion/Affidavit t/Memorandum of Support/Memorandum of Law/Ex Law/Exhibitshibits ... ... 37-42 37 - 42 Affirm ation in Opposi tion/M emoran Affirmation in OppositionlMemorandum dum of Law ............................... '~. ..... ... ofLaw 164- 164 - 165 Reply Affimiation/Memorandum Reply Affirmation/Memorandum of of Law Law ................................................. ... 50- 50 - 51. 51"

In this matter, In this matter, Defendant-Undertenant Defendant-Undertenant Gerard Gerard Baron ("Baron") Baron ("Baro n") moves moves for for an an order, order, pursuant to pursuant to CPLR CPLR 321 321 l(a)(7), 1(a)(7), dismiss ing Plainti dismissing Plaintiffff Dom Dom Ben Ben Realty Realty Corpor Corporation's ("Plaintiff') ation's ("Plain tiff') action for failure to action for failure to state state a claim claim becaus becausee the predica predicatete Notice Notice ofof Termin Termination (the "Notic "Notice") ation (the e") isis purport edly insuffic purportedly insufficientient (Mot. (Mot. Seq. No. No.2). Plaintiffff oppose 2). Plainti opposess the the motion. motion. Plainti Plaintiffff owns owns aa building building located located at 135 Plymou Plymouth th Street Street in Brookl Brooklyn, yn, New York. This New York. This action action concern concernss Unit Unit 401 (the (the "Unit") within the buildin "Unit") within building. Plaintiffff entered g. Plainti entered into into aa rent rent stabiliz stabilized ed lease with defend ant Ulises lease with defendant Ulises Beato Beato ("Beato ("Beato")") for the Unit, Unit, for ari an initial initial term from Septem term from September 1, ber 1, 2014 to August 2014 to August 31, 31, 2016. 2016. The The lease was extende lease was extendedd multiple multiple times times and has not not been renewedd on been renewe on the the last last expirat ion date expiration date of of Septem Septemberber 30, 2020. 2020. Baron Baron alleges alleges that that he entered entered into into aa written written agreem agreement ent with Beato with Beato dated dated June June 21, 2013 for a t~o-ye t~o-yearar term commencing Novem term commencing November 1, 2013. ber 1, 2013. Baron claims Baron claims that he has that he has occupi ed aa portion occupied portion of of the Unit Unit from Novem November 1,2013 ber 1, 2013 to date.· date. Baron further alleges Baron further alleges

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that that he made made monthly monthly payments payments to Beato occupancy and Beato for use and occupancy and utility costs from utility costs November from November 2020. October 2020. 2013 to October Plaintiff alleges that Plaintiff alleges that Beato illegally sublet Beato illegally sublet the Unit Baron without Unit to Baron permission in without its permission violation violation of of Section Section 226-b 226-b of of the Real Property the Real Law, Rent Property Law, Code §S 2525.6 Stabilization Code Rent Stabilization Title and Title 2525.6 and 29 of of the the Rules Rules of of the the City City of of New York §S 2-09 New York further alleges Plaintiff further 2-09 (c) (4) (i). Plaintiff that the alleges that subleasing subleasing of of the the Unit Unit violated violated the the terms September 30, 2020, of the lease. On September terms of served Plaintiff served 2020, Plaintiff Beato Beato with with a Thirty Notice of Day Notice (30) Day Thirty (30) Termination dated of Termination September 15, 2020. dated September Notice The Notice 2020. The contained contained allegations allegations that that Beato Beato illegally illegally sublet the Unit, sublet the which was Unit, which subdivided into was subdivided separate two separate into two units, units, and charged subtenants more charged subtenants more than the rent than the being paid rent being Beato. Plaintiff paid by Beato. this commenced this Plaintiff commenced action action seeking seeking (a) a money money judgment judgment for unpaid unpaid use occupancy against and occupancy use and (b)-attomey's Beato, (b)attomey's against Beato, fees against against Beato, Beato, (c) (c) a declaratory declaratory judgment that Beato judgment that not protected Beato is not under the protected under Law or Loft Law the Loft Rent Rent Stabilization Stabilization Law Law based based on on his his illegal profiteering of illegal profiteering the Unit of the and (d) possession Unit and of the possession of Unit. the Unit. Baron Baron now now moves moves to. dismiss Plaintiff to· dismiss action alleging Plaintiffss action alleging that been sought relief has been that no relief sought against against him. Baron Baron also also argues argues that the allegations that the the Notice allegations in the apprise him Notice fail to apprise legal of any legal him of grounds or facts supporting grounds of his occupancy. termination of supporting the termination occupancy. Baron further a~gues that Baron further pursuant that pursuant to Section Section 226-c 226-c ofthe of the Real Real Property Law, Plaintiff Property Law, was required Plaintiff was provide a written required to provide notice 90-day notice written 90-day since he has occupied since occupied the the Unit than two more than Unit for more opposition, Plaintiff years. In opposition, two years. three forth three Plaintiff sets forth arguments. arguments. First, First, Plaintiff Plaintiff asserts that since asserts that Baron is not since Baron party to the not a party lease with the lease Baron Plaintiff, Baron with Plaintiff, did not need named on nor need to be named nor served served with Plaintiff argues Accordingly, Plaintiff notice. Accordingly, with notice. argues that Baron lacks that Baron lacks standing standing to assert assert a challenge challenge to the the Notice. Second, Plaintiff Notice. Second, argues that Plaintiff argues even if that even not Baron did not if Baron lack standing, lack standing, the sufficiency of the sufficiency of Plaintiffs Notice has already predicate Notice Plaintiffs predicate already been determined by the been determined Court. Court. Third, Third, Plaintiff Plaintiff contends contends that the complaint that the states a cause complaint states of action cause of against ejectment as against action for ejectment Baron. ·. Beato and Baron. Beato Real Real Property Property Law Law defines "tenant" as a:a. "person defines a "tenant" "person occupying occupy a entitled to occupy or entitled occupying or residential residential rental rental premises who is either premises who lease or rental party to the lease either a party agreement for such rental agreement premises such premises or is a statutory statutory tenant" tenant" (Real (Real Property Law§S :?35-f Property Law [aD. A "statutory '.?35-f [1] [a]). tenant" is a tenant "statutory tenant" whose tenant whose initial lease initial lease has expired remains in possession and remains expired and Realty Corp. v Mihaly, Markceil Realty possession (see MarleceU NY2d Mihaly, 14 NY2d 657,659 [1964]; Bisbano 657,659 [1964]; Bisbano v 42-20 42-20 Rest. Corp., Corp., 280 Dept 1952]; 790, 790 [2d Dept 280 AD 790, 93rd Bldg. Corp. 1952]; 93rd v Hefti, Hefti, 224 AD3d 583, 583-584 AD3d 583, Dept 2024], 583-584 [1st Dept Gersten v 56 7th Ave. citing Gersten 2024], citing AD3d 189, LLC, 88 AD3d Ave. LLC, '-'- 199 [1st Dept Dept 2011 D. ]). An "occupant" is a "person, An "occupant" other than "person, other a than it tenant tenant's meml?er of a tenant's tenant or a mem1:?erof

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immediate family, immediate family, occupying premises with occupying a premises of the tenant consent of with the consent (Real Properly or,tenants" (Real tenant or_tenants" Properly Law S 235-f[l] Law§ 235-f[1] [b]). Real Property Real Law S 226-c(l)(a) Property Law§ 226-c(l)(a) provides that "[w]henever provides that offer to intends to offer landlord intends "[w]henever a landlord renew the tenancy renew tenancy of of an occupant occupant ... does not ... or does renew the tenancy, intend to renew not intend tenancy, the landlord shall the landlord shall provide written notice" provide written notice" (Real (Real Property Law S 226-c Property Law§ added]).l 1 If [emphasis added]). 226-c [1] [a] [emphasis landlord fails Ifaa landlord to provide provide timely timely notice notice per per Real Real Property Law S 226-c· Property Law§ "the occupant's 226-c (1) (a), "the lawful tenancy occupant's lawful tenancy continue" (id shall continue" [emphasis added]). (id. [emphasis added]). In the the memorandum memorandum of of law, Baron's states that counsel states Baron's counsel "Baron is a · mere that "Baron mere occupant/subtenant occupant/subt of a space enant of space in the Unit" Doc No. 42, at 8.). Baron (NYSCEF Doc Unit" (NYSCEF not allege does not Baron does allege that that he paid paid any rent rent directly Plaintiff or had directly to Plaintiff consent to occupy Plaintiff'ss consent had Plaintiff occupy the his Unit. In his the Unit. affidavit, Baron affidavit, Baron asserts asserts that that his occupancy has his occupancy been "open has been and notorious," "open and Plaintiff and its and Plaintiff notorious," and representatives s were representative were aware aware ofof his his presence. conclusory fashion, Baron, in a conclusory presence. Baron, that he has states that fashion, states "repeatedly permitted "repeatedly permitted Plaintiff employees access and its employees Plaintiff and repairs." There ... for repairs." access ... property There is no property right to renew right renew where where a tenancy tenancy was never created was never or explicitly implicitly ·or created implicitly Plaintiff.22 In with Plaintiff. explicitly with essence, Baron essence, Baron has has failed establish the existence failed to establish of a legal existence of tenancy between legal tenancy and Plaintiff. him and between him Plaintiff. addition, Plaintiff In addition, Plaintiff neither neither alleges submits evidence nor submits alleges nor that he is a statutory evidence that tenant. statutory tenant. In support support of of his. his motion, motion, Baron Baron cites lower court cites to lower cases; however, court cases; Court is not this Court however, this not required to rely required rely on the decisions decisions of of lower of coordinate courts of courts or courts lower courts coordinate jurisdiction because they jurisdiction because are not ~ot binding binding (see Zagrosik Zagrosi~ v NY NY State of Hous. & Community State Div. of Renewal, 12 Misc Community Renewal, 1076, ·. Misc 3d 1_076, 1080 [Sup Ct, NY County 2006] NY County 2006] ["court not bound ["court is not Civil Court either by Civil bound either holdings. • rulings or by holdings Court rulings courts of by courts of coordinate coordinate jurisdiction], jurisdiction], citing Lines, Inc. v Storms, Coach Lines, citing Mtn. View Coach AD2d 663 Storms, 102 AD2d [2d Dept 1984]). Upon Dept 1984]). Upon the consideration of Court's consideration the Court's Plaintiffs cited of Plaintiff's cases, the cited cases, finds that Court finds the Court that they are unpersuasive they unpersuasive for the following :reasons. the following Assoc._ v. Ave. Assoc. Park Ave. reasons. In 1641 Park Parker (2022 v. Parker NY (2022 NY 30519[U] [Sup Slip Op 30519[U] [Sup Ct, NY NY County 2022], the court County 2022], that Real found that court found Law 226-c Property Law Real Property 226-c "applies to all tenancies" "applies and applies tenancies" and ejectment and common-law ejectment applies to common-law Real Property and Real Actions and Property Actions and Proceedings Law Proceedings Law holdover proceedings. However, holdover proceedings. Park Ave. holding in 1641 Park However, the holding Assoc. is Ave. Assoc. inapplicable here inapplicable here since since that that case case does not involve does not address a subtenant involve or address of illegal allegation of subtenant or an allegation illegal \ ,

The Rent 1I The Rent Stabilization Stabilization Code Code explicitly explicitly states that a subtenant states that or sublessee subtenant or not entitled sublessee is not the right entitled to the renew (9 right to renew (9 NYCRR 2520.6 [k]). NYCRR 2520.6 [1<]). The right 2 The right to renew renew ofof a subtenant flows from the subtenant flows the tenant her lease. and his or her tenant and Thus, a subtenant lease. Thus, has the subtenant has option to the option to renew only if the tenant exercises his renew only if the tenant exercises his or or her her option option to re.new renew the the master master lease lease (Minister, (Minister, Elders Elders & Deacons Deacons of Refm. of Refm. Prats. Dutch Prots. Dutch Church NY2d 170, Inc., 59 NY2d Broadway, Inc., Church v 198 Broadway, 176 [1983)). 170,176 [1983]).

."

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subletting. Moreover, subletting. EQR-Hudson Crossing, Moreover, EQR-Hudson Crossing, LLC Magana (75 Mise v. Magana LLC v. NY Misc 3d 979 [Civ Ct, NY County County 2022]) not analogous. 2022]) is not Baron, the subtenant unlike Baron, First, unlike analogous. First, EQR-Hudson Crossing, subtenant in EQR-Hudson LLC Crossing, LLC claimed entitlement to rental claimed entitlement under the Emergency assistance under rental assistance Assistance Program Rental Assistance Emergency Rental of 2021 Program of "ERAP"). Second, (the "ERAP"). ERAP clearly the ERAP Second, the clearly provided applicant could that the applicant provided that tenant or occupant could be a tenant occupant Mise 3d at 981 (75 Misc ). 3 981).3 Third, though Third, though there allegation of was an allegation there was of illegal subletting, the Court illegal subletting, Court recognized that recognized acceptance of landlord's acceptance that the landlord's rent arrears of rent arrears through ERAP program through the ERAP not ~ould not program ~ould confer any tenancy confer rights on the subtenant. tenancy rights subtenant. Accordingly, holdings or conclusions Accordingly, the holdings these conclusions in these unavailing. cases are unavailing. cases Since there Since there are are no Second Department cases on the Second Departmentcases of statutory issue of the issue subtenants, notices to subtenants, statutory notices Court relies the Court decided by the First cases decided relies on cases Appellate Division Department Appellate First Department Appellate Term. and Appellate Division and Term. These courts These courts have previously determined have previously determined that undertenant who subtenant or undertenant that a subtenant party to a not a party who is not lease with lease not entitled landlord is not with the landlord service of entitled to service notice of of a notice of termination lacks standing and .lacks termination and standing to challenge of such sufficiency of challenge the sufficiency such notice 85th St. Tenants tenant (see 170 W 85th served on the tenant notice served Assn. v Tenants Assn. AD2d 338, Cruz, 173 AD2d Dept 1991] [only the 339 [1st Dept 338, 339 tenant of immediate tenant the immediate lessor is entitled the lessor of the entitled to statutory End Assoc. notice]; W End statutory notice]; Misc 3d 145[A], McGlone, 32 Mise Assoc. v McGlone, NY Slip 145[A], 2011 NY 51732[U], *1 Slip Op 51732[U], [App Term, 2011]; 149th Dept 2011]; Term, 1st Dept 149th Partners 139[A], ?015 Misc 3d 139[A], LP v Watts, 49 Mise Partners LP NY Slip Op ~015 NY 51576[U], *1 51576[U], 2015]; 304 Dept 2015]; Term, 1st Dept *1 [App Term, PAS OwnerLLC 304 PAS Life Extension Owner LLC v Life LLC, 60 Realty LLC, Extension Realty Mise 3d 132[A], Misc 132[A], 2018 NY Slip 2018 NY Slip Op 51020[U] Term, 1st Dept2018]; [App Term, 51020[U] [App Broadway Bldg., Dept 2018]; 401 Broadway LLC Assoc., PLLC, Barra & Assoc., LLC v Barra Misc 3d 132[A], PLLC, 78 Mise NY Slip 132[A], 2023 NY 50377[U], *2 [App Term, Slip Op 50377[U], Term, Dept 2023]). 1st Dept Thus, the 2023]). Thus, finds that Court finds the Court Baron was not that Baron required to receive not required pursuant to notice pursuant receive notice I

Real Law§S 226-c Property Law Real Property Accordingly, the 226-c...·Accordingly, Court need the Court not consider need not the sufficiency consider the sufficiency of Notice the Notice of the pertains to Baron. as it pertains Baron. "Due process requires "Due process only that, requires only warrant to be effective that, for the warrant against a subtenant, effective against licensee subtenant, licensee occupant, he be made or occupant, proceeding, either party to the proceeding, made a party either by naming and serving him in and naming him serving him with him with petition and the petition notice of and notice of petition joining him by joining petition or by party during him as a party pendency of during the pendency of the proceeding" (see Cruz, proceeding" Cruz, 173 AD2d at 339-40; 173AD2d 339-40; Parkash LLC v Galan, 2125 LLC Parkash 2125 Misc 3d 502, 510 Galan, 61 Mise Bronx County [Civ Ct, Bronx 2018] ["[T]he County 2018] of Cruz import of ["[T]he import Cruz is that every occupant that every least, entitled to, at least, occupant is entitled notice of notice ofthe the proceeding minimal opportunity some minimal proceeding and some heard, even opportunity to be heard, if not even if the merits trial on the not a trial merits

3 The 3 Va/sac 908 court in Va/sac The court v. Crespo LLC v. 908 LLC noted that Crespo noted "the subtenant that "the £QR-Hudson Crossing, subtenant [in EQR-Hudson Crossing, LLC] was LLC] was "undisputedly of the subject possession of "undisputedly in possession subject premises consent of with the consent premises with of the tenant," "occupant" as which is an "occupant" tenant," which defined by Real defined Real Property Property Law Law§~ 235-f(75 Misc 3d 1213[A], 235-f(75 Misc 1213[A], 2022 NYSlip Op 50484[U], 2022 NYSlip NY County [Civ Ct, NY 50484[V], *2 [Civ County 2022) [internal 2022] [internal quotation and citation marks and quotation marks omitted]). citation omitted)).

•. 4 4

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of of the the petition"). petition"). Therefore, Therefore, Baron Baron was was requited required to receive receive notice notice of of this this action action and and se~ice se:vice is not ~· disputed. disputed. The The Court Court next next addresses addresses whether whether the Complaint Complaint states cause of states a cause of action action for ejectment ejectment 1 I

against against Baron. Baron. 44 On On a motion motion to dismiss dismiss under under CPLR CPLR 321 3211l(a)(7), (a)(7), a complaint complaint is afforded afforded liberal liberal construction construction (see CPLR CPLR 3026; Martinez, 84 NY2d Leon v Martinez, 3026; Leon NY2d 83, 87 [1994]). [1994]). That That is, "the "the facts facts as alleged alleged in the the complaip.t complaint are are accepted accepted as true, true, the the plaintiff plaintiff is accorded benefit of accorded the benefit of every every favorable favorable inference, inference, and the the court court must must determine determine ?nly only 'Whether whether the the facts facts as alleged alleged fit within within an~ any cognizable cognizable legal theory" theory" (Uzzle (Uzzle v Nimzie Nunzie Ct. Homeowners Homeowners Ass 'n, Inc., 70 AD3d Ass 'n, AD3d 928, 929-:-30 [2d Dept 928,929-30 Dept 2010]). 2010]). Based Based on the reading 9f the reading of the the Complaint, Complaint, the Court Court finds that that the facts facts alleged alleged therein therein are sufficie_nt sufficient to establish establish that that Plaintiff Plaintiff has has a cause cause of of action action against against Baron. Baron. In determining determining whether whether a cause cause of of I

action action exists, exists, the the court court may may also also consider consider extrinsic extrinsic evidentiary evidentiary material material (see Matter Matter of Riverkeeper, of Riverkeeper, ' Inc. v NY NY City Dept. hf City Dept. Protection, 214 AD3d of Envtl. Protection, AD3d 986, 986, 987 [2d Dept Dept 2023]). 2023]). In his affidavit, affidavit, Baron Baron does does not not assert that he is no longer assert,that I longer in possession possession of of the the Unit. Unit. He also also does does not not assert assert that that I .

he received received Plaintiff's Plaintiff's' permission permission to remain remain ip. in the the Unit Unit and has paid paid rent rent to Plaintiff Plaintiff directly directly since since October October 2020. 2020. Thus,;Baron's Thus,;Baron's contention contention that that Plaintiff Plaintiff is merely merely seeking seeking the the ejectment ejectment of of Beato Beato !

only only is illogical. illogical. Accordingly, Accordingly, it is hereby hereby ORDERED, ORDERED, tµat that Defendant-Undertenant Defendant-Undertenant Gerard Gerard Baron's Baron's motion motion (Mot. (Mot. Seq. No.2) No. 2) is denied. denied. All other other issues issues not not addressed addressed herein herein are without without merit merit or moot. moot. This This constitutes constitutes the the decision decision and order order of of the Court. Court.

Hon. Ingrid Ingrid seph, seph, J.S.C. l.S.C. Hon. If gridJoseph rid Joseph Supreme Supreme Court Court Justice

Beato previously 4 Beato 4 previously moved_ moved thisthis Court Court for an order order dismissing dismissing the the action action for failure failure to state state a ~laim claim (Mot. (Mot. Seq. No. 1). No.1). Beato argued, Beato argued, in part, part, that that' the the Notice Notice was was defective defective because because it failed failed to clearly clearly set forth forth the the grounds grounds for eviction eviction or reference reference one one of of the the enumerated enumerated grounds grounds for termination termination under under the the Rent Rent Stabilization Stabilization Code. Code. This This Court Court rejected rejected Beato's Beato's argument, argument, finding fmding that that the the Notice Notice apprised apprised Beato Beato of of the the legal legal grounds grounds andand facts facts on which which this this ejectment ejectment action action is bei~g bei~g pursued pursued (NY(NY St <;ts Cts Elec Elec Filing Filing [NYSCEF] [NYSCEF] DocDoc No.No. 29). 29).

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