Preview:

[*1]


Decided on July 16, 2009
Civil Court of the City of New York, New York County

097761/08

Goldberg, Scudieri, Lindenberg & Block P.C., New York City (Robert H. Goldberg of counsel), for
petitioner.
Schuman Sall & Geist, White Plains, New York (Matthew D. Schwarz of counsel), for respondent.
Gerald Lebovits, J.

Respondent, Anna Mchedlishvili, moves under CPLR 3212 for summary judgment dismissing this illegal sublet holdover proceeding and awarding rent overcharges in the amount of $49,844.34
plus interest. Respondent also moves for an award of legal fees incurred to defend this proceeding. Petitioner cross-moves for leave under CPLR 408, 3102, and 3107 to conduct disclosure and to compel respondent pay use and occupancy pendente lite.
Respondent's motion for summary judgment dismissing the holdover petition is granted. Petitioner has not proven the existence of a triable issue of material fact regarding respondent's alleged illegal sublet. Respondent's motion for summary judgment for an award for rent overcharges is granted in the amount of $42,178.19. Petitioner's cross-motion for leave to conduct disclosure and for use and occupancy is denied as academic.
Respondent is the tenant of a rent-stabilized apartment located at 605 East 11th Street in New York County. She signed a one-year lease with petitioner commencing on October 1, 2007 and expiring September 30, 2008, at a monthly rent of $1700.00. By notice to cure dated August 2, 2008, petitioner, Luisa Torres, gave respondent 10 days to cure the supposed illegal sublet of her apartment. Petitioner alleged, among other things, that respondent had not resided in, lived in, or slept in the subject apartment since approximately May 1, 2008; that neither petitioner nor her agent had seen respondent at the premises since May 1, 2008; and that "John Doe No.1" and/or "John Doe #2" maintained exclusive and sole occupancy of the subject apartment since May 1, 2008. When respondent did not cure, petitioner served her with a termination notice dated September 12, 2008.
Respondent now moves for summary judgment.
Summary Judgment for Illegal Sublet
Summary judgment is appropriate when no triable issue of material fact exists. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the party opposing the motion. (Ashland Mgt. Inc. v Altair Inv. NA, LLC, 59 AD3d 97, 98 [1st Dept 2008].) The moving party has the initial burden to come forward with proof to enable the court to determine that the party is entitled to judgment as a matter of law. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) The burden then "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." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Proof that consists of "mere conclusions, expressions of hope or unsubstantiated allegations or assertions [is] insufficient." (Zuckerman, 49 NY2d at 562.)
According to respondent, no illegal sublet of the premises ever occurred. She claims that the supposed illegal subtenant is respondent's mother, who resides in the apartment with her. Respondent also contends that from May through August 2008, she traveled two out of every four weeks for her job as a fashion model. During breaks from work, she states, she split her time between the subject apartment and a beach house on Long Island, New York. Beginning in September 2008, respondent claims, she no longer traveled extensively for work; she returned full time to her apartment.
In opposition to respondent's contentions, petitioner has offered no proof in admissible form to establish that respondent illegally sublet her apartment. The allegations in affidavits from petitioner's daughter, son-in-law, and granddaughter are either conclusory and carry no weight or are inadmissable.
In her affidavit, Antonia Landro, petitioner's daughter, alleges that she helps manage the subject property and that she spends seven days a week at an office in the building from 8:30 a.m. to 4:00 p.m. Landro claims that she did not see respondent at the apartment on "a regular basis" between May 1, 2008 and March 31, 2009; that respondent visited the building during that period only "to collect the rent from her subtenants"; and that respondent never slept in the apartment.
Antonia Landro does not offer admissible evidence to support any of these claims. She annexes dozens of images taken by security cameras in the building's hallways, entranceway, and the exterior depicting what she alleges are subtenants going in and out of respondent's apartment, but these images do not prove the existence of an illegal sublet. The images do not substantiate handwritten statements appearing below the photos alleging that the individuals pictured stayed for varying periods of time. Likewise, claims that unidentified individuals who were photographed in building common areas were headed to respondent's apartment are inconclusive. Although the images depict various individuals entering and leaving the building, they do not show a pattern pertaining to any particular individual. Thirty-one of the images, some of which depict respondent herself, date to the period between December 25, 2008 and December 31, [*2]2008, during which respondent claims she had guests for the holidays. Petitioner does not challenge respondent's claim. Furthermore, all but four of the images are irrelevant; they were taken after the date of the cure notice and the date of the termination notice. And the four photographs preceding the predicate notices are inconclusive. Only one of these four images, dated August 7, 2008, which depicts an individual in a building hallway, is accompanied by a handwritten caption alleging that the individual stayed in the apartment. The caption states "stranger entering building going towards apt 4c. Individual stayed for one month." (Petitioners Cross-Motion, Exhibit A.) But the image does not show the individual entering the respondent's apartment and the caption does not identify the dates the individual allegedly stayed. Nor does petitioner identify who wrote the caption. No additional images of this individual are provided to establish a pattern of occupancy.
Petitioner also annexes three letters from respondent's neighbors complaining about excessive noise and visitors at respondent's apartment. The letters do not prove an illegal sublet. The first letter, written by Jessica Napoli on December 27, 2008, complains of excessive noise from respondent's apartment. It makes no mention of an illegal sublet. The second letter, also written by Napoli and dated December 30, 2008, states that respondent appears to have been "away" since December 27, 2008, and that in her three-day absence, two individuals seem to have been staying in her apartment. Napoli does not allege, however, that the individuals were subletting respondent's apartment. Napoli's December 30 letter is irrelevant; it describes events occurring after the predicate notices and holdover petition. The third letter, purportedly written by Jason Christmas on December 27, 2008, but unsigned, states that he is worried about the volume of people entering the building and respondent's apartment. Christmas does not allege that respondent is subletting her apartment. Further compounding the lack of value of the three letters is that no statement contained in any of the letters is sworn to under oath. All three letters are inadmissable.
Antonia and Angel Landro's affidavits allege that a conversation between Angel Landro, who is petitioner's son-in-law, and an unnamed cab driver proves that respondent engaged in illegal subletting and profiteering. (See Antonia Landro Aff. in Opp.

Download 2009_51528.pdf

New York Law