Broome Realty Associates v. Esposito

(Civ. Ct. N.Y. Cty. 3/7/01)

We represented: Petitioner

Douglas E. Hoffman, J.H.C.

DECISION and ORDER This summary holdover proceeding predicated upon alleged nonprimary residence comes before the court upon motion by petitioner for an order striking specified affirmative defenses and objections in point of law and permitting it leave to conduct disclosure, and cross motion by respondents for an order dismissing the petition, sanctioning petitioner, awarding respondents legal fees, costs and disbursements, or, alternatively, issuing a protective order. The court consolidates the motions for disposition and grants the motions to the extent set forth below.

Petitioner's theory of the case is that health considerations compelled respondent Richard Esposito, the long-term tenant of record, to vacate permanently the subject rent-controlled apartment in or about February 1994 to reside in a supported living environment and that respondent James Bari did not contemporaneously occupy the apartment with his uncle, Mr. Esposito, prior to Mr. Esposito's vacatur.

Respondent Bari asserts that he has openly lived in the subject apartment at 384 Broome Street, Apartment 7, for 48 years and that through its conduct, petitioner has accepted respondent Bari as the tenant of the subject apartment. The answer does not appear to raise a succession rights defense; rather it raises the issue of acceptance of tenancy by contractual offer and acceptance, waiver and estoppel. Respondents raise a host of jurisdictional defenses as well.

Initially, the court notes that respondent Bari asserts that there is no "John Doe" or "Jane Doe" residing at the subject premises and that petitioner does not appear to be pursuing any claim against "John Doe" or "Jane Doe." As petitioner does not contradict this allegation, the court grants that branch of the cross motion, dismissing any claims in the petition against "John Doe" or "Jane Doe." With respect to the remaining issues, the court will first address the threshold jurisdictional issues. Respondents have raised no issue as to whether or not the court possesses jurisdiction over the subject matter of this proceeding; rather, respondent's assertions concern whether or not petitioner has complied with conditions precedent to the maintenance of this proceeding or whether or not petitioner has stated a cause of action and the facts upon which the proceeding is based.

The only threshold jurisdictional issue raised by respondents pertains to personal jurisdiction. With respect to respondents' claim that the court lacks personal jurisdiction over respondents, the affidavit of service of the process server sets forth proper prima facie service of the notice of petition and petition upon both respondents. The court finds no ambiguity with respect to which door the process server refers in his affidavits. Respondent Bari's affidavit sets forth specific allegations challenging whether or not the process server made reasonable application by appearing at the subject apartment to attempt to serve the notice of petition and petition at the times set forth in the affidavit of service. Accordingly, the court must conduct a traverse to determine whether or not petitioner properly served the notice of petition and petition upon respondent Bari.

Petitioner asserts that respondents have waived the issue of lack of personal jurisdiction by filing an unrelated counterclaim. Respondents base their first counterclaim upon an alleged breach of the warranty of habitability. The warranty of habitability is not a defense to and does not relate to that branch of the petition seeking a final judgment of possession based upon nonprimary residence. The issue of use and occupancy and the conditions in the subject apartment become relevant to this proceeding only if and when petitioner prevails upon its claim in chief of nonprimary residence and that respondent Bari has no independent possessory interest in the subject apartment. The breach of the warranty of habitability is not a defense to a claim for use and occupancy; rather, it is an evidentiary issue for the court to consider in assessing the fair value of the apartment during the holdover period in question. If petitioner prevails at trial on its nonprimary residence claim, the use and occupancy hearing would relate to the holdover period. Under these circumstances, it would not be appropriate to expand the scope of such a hearing to include a claim for breach of the warranty of habitability for a period that could exceed by several years the scope of the holdover period. Although respondents' counterclaim based upon the breach of the warranty of habitability is stricken, the court finds that the counterclaim was pended to an assertion concerning violations in the subject apartment, an assertion that is relevant as an evidentiary matter to the claim in the petition for use and occupancy. Thus, the mere raising of the counterclaim does not under these circumstances waive the issue of lack of personal jurisdiction. Moreover, respondent Bari would have standing to raise a counterclaim for breach of the warranty of habitability only if it is established at trial that he has an independent possessory interest in the subject apartment. As an occupant, Mr. Bari may be liable for use and occupancy if petitioner prevails upon its claim in chief. Accordingly, he may raise as an evidentiary issue in a use and occupancy hearing the conditions in the subject apartment insofar as they relate to the fair value of the apartment during the holdover period.

Similarly, respondents in their third counterclaim alleged harassment and abuse of legal process. There is no cause of action for harassment cognizable in Civil Court. The closest cause of action may be intentional infliction of emotional distress, "deliberate and malicious campaign of harassment or intimidation," Vasarhelyi v. The New School for Social Research, 230 A.D.2d 658, 661, 646 N.Y.S.2d 795 (1st Dept. 1996), a cause of action that this court cannot hear in this proceeding. 610 West 142 Street Owners Corp. v. Braxton, 140 Misc. 2d 826, 535 N.Y.S.2d 870 (1st Dept. 1988). Assuming arguendo had respondents have prima facie pleaded a cause of action for abuse of process, such a counterclaim would be similarly inappropriate in this summary proceeding. Thus, the court strikes this counterclaim. The interposition of this counterclaim does not waive the issue of lack of personal jurisdiction, however, as the counterclaim purportedly is predicated upon the fact of the commencement of the instant proceeding and the service of predicate notices. Although the court cannot hear this claim in this proceeding, primarily because courts have held that such a claim would unduly delay a summary proceeding and swift adjudication of whether or not a landlord is entitled to possession of an apartment, the counterclaim was nonetheless related to petitioner's claims in this proceeding and should not constitute a waiver of a claim of lack of personal jurisdiction.

With respect to respondents' claim that petitioner did not properly serve the predicate notice of termination upon them, the process server's affidavit of service establishes prima facie proper service of the predicate notice. As Mr. Esposito is the tenant of record, he is the only individual who had to be served with this predicate notice. Mr. Esposito has not submitted an affidavit or a verified pleading challenging the validity of this service upon him. Accordingly, the court strikes this objection in point of law and affirmative defense.

The petition incorporates by reference the allegations in the predicate notice. The allegations in the predicate notice are reasonably specific under the attendant circumstances, Avon Bard Co. v. Aquarian Foundation, 260 A.D.2d 207, 210, 683 N.Y.S.2d 514 (1st Dept.), app. dism'd, 93 N.Y.2d 998, 695 N.Y.S.2d 743 (1999); Hughes v. Lenox Hill Hosp., 226 A.D.2d 417, 651 N.Y.S.2d 418 (1st Dept. 1996), Iv. den., 90 N.Y.2d 835, 683 N.E.2d 17, 660 N.Y.S.2d 552 (1997), provide respondents with clear notice of the facts underlying the proceeding and, if true, state a cause of action. The predicate notice clearly alleges that the tenant of record, Richard Esposito, resides in a nursing home facility and lacks the intention or ability to return to the subject apartment. The petition, incorporating the predicate notice, alleges further that Mr. Esposito is registered to vote, listing his address as the nursing home, but that James Bari has been occupying the subject apartment without sufficient contemporaneous occupancy to establish succession rights. Based upon the allegations of the petition, as augmented by the predicate notice, respondents are able to understand clearly petitioner's claim and, if appropriate, prepare an adequate defense.

Accordingly, the court dismisses all objections in point of law, with the exception of that branch of the fifth objection in point of law concerning respondent Bari's challenge to service of the notice of petition and petition. The court does, however, grant that branch of the fifth affirmative defense seeking dismissal of that branch of the petition seeking any relief against "John Doe" or "Jane Doe." The court also dismisses the first and fourth affirmative defenses, except insofar as the fourth affirmative defense concerns Mr. Bari's challenge to service of the notice of petition and petition. The court dismisses the eighth affirmative defense and first counterclaim, except to the extent that, as noted above, the court may consider evidence as to the condition of the subject apartment during a hearing to determine use and occupancy should petitioner prevail at trial. The court dismisses the tenth affirmative defense and third counterclaim.

With respect to that branch of petitioner's motion seeking leave to conduct disclosure, respondents assert through their general denial that Mr. Esposito can in fact reside in the subject apartment. Where, as here, the pertinent facts are peculiarly with in the knowledge of respondents, disclosure is appropriate in a nonprimary residence case. See, e.g., UVI Holdings, L.L.C. v. Wu, N.Y.L.J., Dec. 23, 1998, p. 24, col. 4 (A.T. 1); New York Life Ins. Co. v. Durcekova, N.Y.L.J., Dec. 1, 1998, p. 25, col. 2 (A.T. 1). There is no reason not to permit an EBT at the nursing home. That branch of the motion seeking leave to conduct disclosure of respondent Bari is granted as unopposed. Disclosure must, however, await the determination of the issue of whether or not this court has jurisdiction over respondent Bari. A traverse shall be held on March 22, 2001. The parties are to report first to Part H for assignment to Part X. If the court finds that this court has personal jurisdiction over Mr. Bari, the petition shall be marked off-calendar pending disclosure. If the petition is not dismissed for lack of personal jurisdiction, respondents must tender use and occupancy at the legal rent-controlled level pendente lite by the fifth of each month and all use and occupancy at the same rate that has accrued since the commencement of this proceeding. This will preserve the status quo pending completion of this summary proceeding and is without prejudice to the claims of any party. This constitutes the decision and order of the court.