University Towers Associates v. Gibson - L&T Index no. 82068/07
Judge Timmie E. Elsner, Kings County Civil Court, Decided: November 20, 2007
Attorneys for Petitioner: Rappaport, Hertz, Cherson & Rosenthal, P.C.
Attorneys for the Respondent: Brent Meltzer,South Brooklyn Legal Services, Inc.
Read full decision here
Petitioner, University Towers Associates ("petitioner") commenced the instant holdover proceeding against the rent-stabilized tenant of record of apartment 12G at 191 Willoughby Street, Brooklyn, NY ("premises"), Maxine Gibson and various undertenants (collectively known as "respondents"). The proceeding is grounded in nuisance; viz., the tenant allegedly by malice or gross negligence caused damaged to the housing accommodation, and engaged in a course of conduct-harboring a pit bull-with the intention of harassing the landlord or other tenants. According to petitioner, the pit bull is an alleged "known dangerous animal" whose presence at the premises creates an threat to the life, health and safety of the other residents.
Respondent Maxine Gibson moves pursuant to CPLR Rule 3211 for an order dismissing the instant proceeding on the grounds that the petition fails to state a cause of action and that the notice of termination fails to state the Facts upon which the proceeding is based as required by 9 NYCRR §2524.2 .
UNDERLYING FACTS
Respondent, Maxine Gibson, entered into possession of Apartment 12G at 191 Willoughby Street, Brooklyn, NY, a rent-stabilized apartment, pursuant to a written lease which commenced on or about August 1, 1982. At an unspecified point in her tenancy, respondent came into possession of a dog, a pit bull. Neither petitioner nor respondent state the dog's name, age or gender in their papers. The petitioner does not allege receiving complaints about the dog from other building residents. There is no claim that the dog has misbehaved or threatened occupants, guests or other pets in or outside the building. There are no claims the pet barks or engages in other nuisance behavior.
1.NOTICE OF TERMINATION: Service of a notice of termination is the necessary predicate to evicting tenants from rent-stabilized apartments. Section 2524.2(b) of the Code details what the notice must contain:
(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession. (Emphasis added).
The court goes on to analyze what constitutes a dangerous dog and a nuisance and sums it all up as follows:
Without allegations of objectionable conduct by respondent or the dog over a period of time, the Court is constrained to find that no nuisance exists. In this jurisdiction the court cannot create decisional law which would usurp legislative action and notes that while in other states pit bulls are banned by law, e.g., parts of Utah and Florida, no such statute exists in the City or State of New York. A dog is not a per se nuisance; thus a litigant would have to plead and prove a dog's conduct interfered substantially and unreasonably with the rights of other tenants (980 Fifth Avenue Corp. v. Smith, supra ).
CONCLUSION
Based upon the foregoing, the Court finds the notice of termination and petition are defective as a result of petitioner's failure to state a cause of action. Therefore, the petition is dismissed with prejudice.
This constitutes the order and decision of this Court.
Saturday, December 8, 2007
Thursday, September 6, 2007
Tenants: Landlord trying to push us out
By Justin Rocket Silverman, amNewYork Staff Writer
Jackelin Javier pays $877 a month in rent for her two-bedroom apartment on West 150th Street. Just a few blocks away, new condos are selling for upwards of $800,000 each.
As a result, Javier says, the owner of her building has been converting units to condos, and creating a dangerous environment for the 60 people who still live there.
"We have bedbugs, roaches and rats all over the place because construction workers have just been going through the building, knocking down walls," she said Wednesday, joined by other tenants at a protest in front of the city's Department of Housing Preservation and Development.
The protestors want the agency to seek a court order to appoint a new manager, under a state program called 7A. The new manager would collect rents and use the money to make essential repairs, effectively bypassing the actual building owner.
Calls for comment to Manhattan North Management were not returned Wednesday. An agency spokesman said Wednesday that city lawyers agree with the tenants and are putting together a 7A case against the owner of Javier's building, Manhattan North Management LLC.
The city has already taken the company to court twice in an effort to collect amost $1 million for emergency repair work performed by the city.
Agency spokeswoman Amanda Pittman said inspectors must first complete a "roof to cellar inspection" before bringing the case to court.
Department of Building records show that more than 100 complaints are on record, as well as 67 violations of the building code.
A stop work order was issued last month when an inspector found contractors did not have construction plans on site and had scattered a large amount of debris throughout the building.
Jackelin Javier pays $877 a month in rent for her two-bedroom apartment on West 150th Street. Just a few blocks away, new condos are selling for upwards of $800,000 each.
As a result, Javier says, the owner of her building has been converting units to condos, and creating a dangerous environment for the 60 people who still live there.
"We have bedbugs, roaches and rats all over the place because construction workers have just been going through the building, knocking down walls," she said Wednesday, joined by other tenants at a protest in front of the city's Department of Housing Preservation and Development.
The protestors want the agency to seek a court order to appoint a new manager, under a state program called 7A. The new manager would collect rents and use the money to make essential repairs, effectively bypassing the actual building owner.
Calls for comment to Manhattan North Management were not returned Wednesday. An agency spokesman said Wednesday that city lawyers agree with the tenants and are putting together a 7A case against the owner of Javier's building, Manhattan North Management LLC.
The city has already taken the company to court twice in an effort to collect amost $1 million for emergency repair work performed by the city.
Agency spokeswoman Amanda Pittman said inspectors must first complete a "roof to cellar inspection" before bringing the case to court.
Department of Building records show that more than 100 complaints are on record, as well as 67 violations of the building code.
A stop work order was issued last month when an inspector found contractors did not have construction plans on site and had scattered a large amount of debris throughout the building.
Friday, June 15, 2007
ENFORCING AN OPTION TO PURCHASE PROPERTY CONTAINED IN A LEASE
Long Beach Medical Center v. 249 East Park Corp., 543-07
Decided: May 17, 2007
Justice Leonard B. Austin, NASSAU COUNTY, Supreme Court
Counsel for Plaintiff: June Diamant, Esq.
Counsel for Defendant: Ackerman, Levine, Cullen, Brickman & Limmer, LLP
READ FULL DECISION HERE
Plaintiff Long Beach Medical Center ("LBMC") moves, pursuant to CPLR 6301, for a preliminary injunction enjoining Defendant 249 East Park Corp. ("East Park" or "Landlord") from taking any action to terminate a certain Lease Agreement dated July 29, 1996, or Plaintiff's tenancy in the premises known as 249 East Park Avenue, Long Beach, New York.
East Park moves to dismiss the complaint pursuant to CPLR 3212.
LBMC cross-moves, pursuant to CPLR 3212, for summary judgment granting specific performance of the Option to Purchase set forth in the Lease Agreement.
In this action, LBMC seeks specific performance of its Option to Purchase a certain four-story office building and appurtenant parking facilities owned by Defendant located at 249 East Park Avenue, Long Beach, New York. It also seeks a declaration that the Lease Agreement regarding said property, and the Purchase Option therein (¶27 [A] and [B]) are in full force and effect...
As confirmed in the Amended and Restated Memorandum of Lease and Purchase Option, dated July 25, 1997, the initial term of the Lease commenced on May 1, 1997 and expired on May 31, 2007. LBMC had the option to extend the lease term for two consecutive periods of five years commencing after May 31, 2007. In addition, pursuant to ¶27(A) of the Lease, LBMC had the option to purchase the premises:
Beginning in the sixth year of the Lease term and upon ninety (90) days notice, Tenant shall have the right (the "Option") to purchase the Leased Premises including Landlord's interest in the Parking Area at the following purchase price figures:
Years 6 through 10 $1,650,000.00
Years 11 through 15 $1,815,000.00
Years 16 through 20 $1,996,500.00
With respect to exercise of this Purchase Option, ¶27(B) provides as follows:
Tenant shall have the right to exercise the Option at any time after the expiration of the fifth Lease Year and prior to the expiration or termination of this Lease (including any renewal term thereof) by notice (the "Exercise Notice") to Landlord, which shall be given at least ninety (90) days prior [to] the closing date, and shall be accompanied by (i) Tenant's check payable to an attorney trust account in an amount equal to five percent (5 percent) of the Purchase Price, and (ii) four executed counterparts of the Contract of Sale in the form attached hereto as Exhibit D, and incorporated herein by reference. Within ten (10) business days after Owner's receipt of Tenant's notice exercising the Option, Owner shall, with respect to all four original counterparts of the Contract of Sale, sign each counterpart and have Seller's Attorney sign each counterpart, as escrowee, and return two full [sic] executed counterparts of the Contract of Sale to the Tenant. Prior to executing the counterparts of the Contract of Sale, Tenant may complete those portions of the Contract of Sale which are dependent upon knowing the date on which the Option is exercised. Owner and Tenant shall execute, deliver and record such other documents as shall be necessary to protect [sic] effectuate the purposes hereof, including, without limitation, a memorandum of lease which gives notice of Tenant's Option and such transfer tax returns as may be required in connection with the recording of such memorandum.
In addition to the Purchase Option, ¶27(C) afforded LBMC the right of first refusal, in the event the Landlord received a bona fide offer...
The Lease herein is fair and equitable in all its terms and based upon good consideration. LBMC has substantially complied with all of its obligations. East Park signed the lease and is bound by its terms absent any showing of fraud or other wrongful act by the Plaintiff. DaSilva v. Musso, 53 N.Y. 2d 543, 550 (1981)...
Accordingly, it is,
ORDERED, that Defendant's motion to dismiss the complaint is denied; and it is further,
ORDERED, that Plaintiff's motion for a preliminary injunction is denied as moot; and it is further,
ORDERED, that Plaintiff's cross-motion for summary judgment is granted. Counsel for the parties are directed to appear for a conference on June 22, 2007 at 9:30 a.m. for the purpose of scheduling the closing of the premises in accordance herewith.
This constitutes the decision and Order of the Court.
Decided: May 17, 2007
Justice Leonard B. Austin, NASSAU COUNTY, Supreme Court
Counsel for Plaintiff: June Diamant, Esq.
Counsel for Defendant: Ackerman, Levine, Cullen, Brickman & Limmer, LLP
READ FULL DECISION HERE
Plaintiff Long Beach Medical Center ("LBMC") moves, pursuant to CPLR 6301, for a preliminary injunction enjoining Defendant 249 East Park Corp. ("East Park" or "Landlord") from taking any action to terminate a certain Lease Agreement dated July 29, 1996, or Plaintiff's tenancy in the premises known as 249 East Park Avenue, Long Beach, New York.
East Park moves to dismiss the complaint pursuant to CPLR 3212.
LBMC cross-moves, pursuant to CPLR 3212, for summary judgment granting specific performance of the Option to Purchase set forth in the Lease Agreement.
In this action, LBMC seeks specific performance of its Option to Purchase a certain four-story office building and appurtenant parking facilities owned by Defendant located at 249 East Park Avenue, Long Beach, New York. It also seeks a declaration that the Lease Agreement regarding said property, and the Purchase Option therein (¶27 [A] and [B]) are in full force and effect...
As confirmed in the Amended and Restated Memorandum of Lease and Purchase Option, dated July 25, 1997, the initial term of the Lease commenced on May 1, 1997 and expired on May 31, 2007. LBMC had the option to extend the lease term for two consecutive periods of five years commencing after May 31, 2007. In addition, pursuant to ¶27(A) of the Lease, LBMC had the option to purchase the premises:
Beginning in the sixth year of the Lease term and upon ninety (90) days notice, Tenant shall have the right (the "Option") to purchase the Leased Premises including Landlord's interest in the Parking Area at the following purchase price figures:
Years 6 through 10 $1,650,000.00
Years 11 through 15 $1,815,000.00
Years 16 through 20 $1,996,500.00
With respect to exercise of this Purchase Option, ¶27(B) provides as follows:
Tenant shall have the right to exercise the Option at any time after the expiration of the fifth Lease Year and prior to the expiration or termination of this Lease (including any renewal term thereof) by notice (the "Exercise Notice") to Landlord, which shall be given at least ninety (90) days prior [to] the closing date, and shall be accompanied by (i) Tenant's check payable to an attorney trust account in an amount equal to five percent (5 percent) of the Purchase Price, and (ii) four executed counterparts of the Contract of Sale in the form attached hereto as Exhibit D, and incorporated herein by reference. Within ten (10) business days after Owner's receipt of Tenant's notice exercising the Option, Owner shall, with respect to all four original counterparts of the Contract of Sale, sign each counterpart and have Seller's Attorney sign each counterpart, as escrowee, and return two full [sic] executed counterparts of the Contract of Sale to the Tenant. Prior to executing the counterparts of the Contract of Sale, Tenant may complete those portions of the Contract of Sale which are dependent upon knowing the date on which the Option is exercised. Owner and Tenant shall execute, deliver and record such other documents as shall be necessary to protect [sic] effectuate the purposes hereof, including, without limitation, a memorandum of lease which gives notice of Tenant's Option and such transfer tax returns as may be required in connection with the recording of such memorandum.
In addition to the Purchase Option, ¶27(C) afforded LBMC the right of first refusal, in the event the Landlord received a bona fide offer...
The Lease herein is fair and equitable in all its terms and based upon good consideration. LBMC has substantially complied with all of its obligations. East Park signed the lease and is bound by its terms absent any showing of fraud or other wrongful act by the Plaintiff. DaSilva v. Musso, 53 N.Y. 2d 543, 550 (1981)...
Accordingly, it is,
ORDERED, that Defendant's motion to dismiss the complaint is denied; and it is further,
ORDERED, that Plaintiff's motion for a preliminary injunction is denied as moot; and it is further,
ORDERED, that Plaintiff's cross-motion for summary judgment is granted. Counsel for the parties are directed to appear for a conference on June 22, 2007 at 9:30 a.m. for the purpose of scheduling the closing of the premises in accordance herewith.
This constitutes the decision and Order of the Court.
APOLOGY
Sorry for not posting but the last week or so was just too rough. In any event I'm back. Rejoice!
Friday, May 25, 2007
152 W. realty LLC v. N&G Luggages Inc., 059788/07
Decided: April 17, 2007
Judge Manuel J. Mendez, NEW YORK COUNTY, Civil Court
For the Petitioner: Pollack & Sharan, LLP, Adam Paul Pollack, Esq. of Counsel
For the Respondent: Marc Aronson, Esq.
Petitioner brings this commercial holdover summary proceeding to regain possession of premises located at 152 West 14th Street, as well as to collect $111,128.51 representing rental arrears for use and occupancy from the respondents...
"As a general rule, the notice of termination must be signed by the landlord or if the landlord's agent or attorney is named in the lease, the landlord's agent or attorney...
Failure of the petition to comply with the court rule and to allege either that the premises were not a multiple dwelling or that it is a multiple dwelling and there is a current registration statement on file, constitutes nothing more than a defect or irregularity which in no way affects the court's jurisdiction (Midtown Properties, Inc., v. Tac-Ole Mexican Foods, Inc., 68 Misc. 2d 1028, 328 N.Y.S. 2d 877 [N.Y. Civ. Ct. 1972]). The legislative intention underlying the Code provision was to foster compliance with the registration requirement by precluding, during the period of noncompliance, the recovery of rents and the recovery of possession based on nonpayment of rent. It does not preclude the maintenance of a non-rent related holdover proceeding (Chan v. Adossa, 195 Misc. 2d 590, 760 N.Y.S. 2d 609 [App. Term 2nd. Dept. 2003]). Neither a multiple dwelling registration, nor a showing that the premises are not a multiple dwelling, is an element of the holdover cause of action (Czerwinski v. Hayes, 8 Misc. 3d 89, 799 N.Y.S. 2d 349 [App. Term 2nd. & 11th. Jud. Dists. 2005]).
Judge Manuel J. Mendez, NEW YORK COUNTY, Civil Court
For the Petitioner: Pollack & Sharan, LLP, Adam Paul Pollack, Esq. of Counsel
For the Respondent: Marc Aronson, Esq.
Petitioner brings this commercial holdover summary proceeding to regain possession of premises located at 152 West 14th Street, as well as to collect $111,128.51 representing rental arrears for use and occupancy from the respondents...
"As a general rule, the notice of termination must be signed by the landlord or if the landlord's agent or attorney is named in the lease, the landlord's agent or attorney...
Failure of the petition to comply with the court rule and to allege either that the premises were not a multiple dwelling or that it is a multiple dwelling and there is a current registration statement on file, constitutes nothing more than a defect or irregularity which in no way affects the court's jurisdiction (Midtown Properties, Inc., v. Tac-Ole Mexican Foods, Inc., 68 Misc. 2d 1028, 328 N.Y.S. 2d 877 [N.Y. Civ. Ct. 1972]). The legislative intention underlying the Code provision was to foster compliance with the registration requirement by precluding, during the period of noncompliance, the recovery of rents and the recovery of possession based on nonpayment of rent. It does not preclude the maintenance of a non-rent related holdover proceeding (Chan v. Adossa, 195 Misc. 2d 590, 760 N.Y.S. 2d 609 [App. Term 2nd. Dept. 2003]). Neither a multiple dwelling registration, nor a showing that the premises are not a multiple dwelling, is an element of the holdover cause of action (Czerwinski v. Hayes, 8 Misc. 3d 89, 799 N.Y.S. 2d 349 [App. Term 2nd. & 11th. Jud. Dists. 2005]).
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