150 Dev. Corp. v Poletti
2008 NY Slip Op 50024(U) [18 Misc 3d 1114(A)]
Decided on January 10, 2008
Civil Court Of The City Of New York, New York County
Mendez, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2008
Civil Court of the City of New York, New York County

150 Development Corp., Plaintiff(s)/, Petitioner(s),


Giancarlo Poletti, Defendant(s)/, Respondent(s).


Manuel J. Mendez, J.

The plaintiff has made a motion for summary judgment upon the ground that the defendant has violated the terms of the renewal lease by having an illegal subtenant that was murdered in the apartment. Plaintiff alleges it first learned of the illegal sublet after it was contacted by the District Attorney's Office in May of 2005. Defendant has been evicted on default from the premises and plaintiff is now alleging he is responsible for rent until the end of the term of the renewal lease August 31, 2005, and for approximately a subsequent two and a half months, as the apartment was quarantined by the District Attorney's office, until November 17, 2005.

The defendant opposes said motion and cross moves for an order denying plaintiff summary judgment, and to the extent a judgement is rendered in favor of the plaintiff at trial that the judgment be limited to the period of October 11, 2005 through November 17, 2005. Defendant alleges he advised plaintiff of the sublease orally, that it was aware of the sublease and approved it; however, there was no written agreement or correspondence between the parties. Defendant also states that after the murder of the sub-tenant the apartment was taken by a government agency for a public purpose which resulted in the lease ending effective as of May 30, 2005. Defendant [*2]claims he was constructively evicted from the apartment by the district attorney's office until it was released to the plaintiff, on or about November 17, 2005. Prior to that date in September of 2005, he offered to surrender the apartment to the plaintiff but they refused to accept, thus failing to mitigate damages.


In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id.; Klein v. City of New York, 89 NY2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 NY2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by

producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 NY2d 204, 208 (*1997); Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 427 (1988).

The Real Property Law §226-b, indicates the procedures that must be followed to obtain the right to sublet an apartment.It specifically states:

"2.(a) A tenant renting a residence pursuant to an existing lease in

a dwelling having four or more residential units shall have

the right to sublease his premises subject to the written consent of

the landlord in advance of the subletting. Such consent shall

not be unreasonably withheld.

(b) The tenant shall inform the landlord of his intent to sublease by

mailing a notice of such intent by certified mail, return receipt

requested. Such request shall be accompanied by the

following information: (i) the termof the sublease,

(ii) the name of the proposed lessee, (iv) the tenant's reasons

for subletting, (v) the tenant's address for the term of the sublease

(vi) the written consent of any cotenant or guarantor of the lease

and (vii) a copy of the proposed sublease to which a copy of the

tenant's lease shall be attached if available, acknowledged by the

tenant and proposed subtenant as being a true copy of such sublease. [*3]

5. Any sublet or assignment which does not comply with the provisions

of this section shall constitute a substantial breach of lease or tenancy."

An oral request for permission to sublet regardless of whether or not it was accepted by the landlord does not constitute a waiver of the statutory requirements that the request be in writing. Caniglia v. Perez, 182 Misc 2d 680, 700 N.Y.S .2d 392 (Civ. Ct. Queens Cty., 1999), Bleeker Associates v. Susanna Hayward, 121 Misc 2d 174, 467 NYS2d 535 (Civ. Ct. NY Cty., 1993).

The right to sublet an apartment in a rent stabilized building is also subject to

New York City Rent Stabilization Law § 26-511( c )(12) (f) which provides that a tenant may not sublet an apartment for more than a total of two years out of the four years preceeding the term of sublease. The New York City Rent Stabilization Law § 26-511( c )(12) (g) indicates the sublease is subject to the tenants right to a renewal lease.

The right to sublet a rent stabilized apartment is controlled by public policy concerns and the application of the regulatory scheme; therefore, waiver, estoppel, laches and consent do not apply. In a rent stabilized apartment where the landlord is aware of the sublet and even initially consented to it, it was determined the statutory provisions were not properly followed and it must become an illegal sublet. 270 Riverside Drive Inc. v. Wilson, 195 Misc 2d 44, 755 NYS2d 215 (Civ. Ct. NY Cty., 2003).

The doctrine of "illusory tenant" is a judicial attempt to be "fundamentally fair."

270 Riverside Drive Inc. v. Wilson, 195 Misc 2d 44, supra . There are two types of "illusory tenant," one is a straw man used by the landlord for purposes of evading obligations under the rent laws, in those instances the tenant has not resided in the apartment for any period of time and the subtenant may be awarded the tenancy. The second type is when the prime tenant subleases it's stabilized or rent controlled apartment for profit. Conti v. Citrin, 132 Misc 2d 834, 505 NYS2d 481, Russell v. Henshel, 156 AD2d 181, 548 NYS2d 887 [N.Y.A.D. 1st Dept. 1989], Bruenn v. Cole, 165 AD2d 443, 568 NYS2d 351 [N.Y.A.D. 1st Dept. 1991] , Yellen v. Reiner-Kaiser Associates, 89 AD2d 561, 452 NYS2d 107 [N.Y.A.D. 2nd Dept., 1982] , Matter of Avon Leasing v. Popolizio, 116 AD2d 280, 500 NYS2d 1019 [ N.Y.A.D. 1st Dept. 1986], Badem Bldgs. v. Abrams, 70 NY2d 45, 510 NE2d 319, 517 NYS2d 450 [1987]. [*4]

Property is deemed condemned when it is taken for public use through the power of eminent domain. When the landlord ceases to retain title to the land and it is passes to the public entity, the right to collect rent on the part of the landlord and the obligation of the tenant to pay rent ceases to exist. See Lentino v. Maltese, 34 Misc 2d 650, 229 NYS2d 1011 [Dist. Ct., 1962] citing to Lodge v. Martin, 31 App. Div. 13, 52 N.Y.S. 385. A de facto taking or "inverse condemnation" requires a showing that there was a permanent interference with the owner's, " physical use, possession and enjoyment of the property by one having condemnation powers" or a "permanent ouster" of the owner of the property. A "permanent ouster" by the government entity is demonstrated by proof that it's conduct was such that it's occupation of the property amounted to "the exercise of dominion and control thereof." See Weaver v. Town of Rush, 1 AD3d 920, 768 N.Y.S. 58 [N.Y.A.D. 4th Dept, 2003] , citing Reiss v. Consolidated Edison Co., 228 AD2d 59, 650 NYS2d 480, appeal dismissed 89 NY2d 1085, 659 NYS2d 858, 681 NE2d 1305, lv. denied 90 NY2d 807, 664 NYS2d 269, 686 NE2d 1364, cert. denied 552 U.S. 1113, 118 S.Ct. 1046, 140 L.Ed. 2d 110.

It is well established that a tenant's damage claims are not inextricably related to the landlord's claim for rent which is due without setoff and continues for so long as the tenant remains in possession. See Green 440 Ninth L.L.C. v. Duane Reade, 10 Misc 3d 75, 809 NYS2d 756 [2005], citing to Allerand L.L.C. v. 233 E. 18th St. Co., 19 AD3d 275, 798 NYS2d 399 [1984], and Earbert Restaurant, Inc. v. Little Luxuries, Inc., 99 AD2d 734, 472 NYS2d 359 [1984]. A tenant can claim actual eviction or partial eviction when the landlord wrongfully ousts the tenant from the premises. Constructive eviction occurs where the tenant is deprived of use and enjoyment of the premises based on wrongful acts by the landlord. It has also been held as long as a tenant remains in possession it has not been constructively evicted. A tenant can not claim he has abandoned the premises while he remains in the premises. (See City of New York v. Pike Realty Corporation, 247 NY 245, 160 N.E. 359 and Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 256 NE2d 707.)


In this case, the lease at paragraph 16 adopts the language of Real Property Law § 226-b. Subsection (b) of paragraph 16 indicates, "in the event of abandonment of the property by the tenant before the end of the lease without the owner's consent the tenant is liable for each monthly payment of rent as it becomes due until the end of the lease." Responsibility for rent continues and will only end, "if Owner chooses to end [*5]this lease for default."

The defendant has conceded he did not advise the plaintiff of the sublease in writing. The defendant also asserts the subtenant, Mr. Kenmoore Thomas, sublet the apartment as of June 2001, as of August 31, 2001 defendant entered into it's first renewal lease with the plaintiff which ended August 31, 2003. A second renewal lease was entered into between the parties effective from August 31, 2003 until August 31, 2005. At the time the second renewal was entered into the subtenant allegedly contacted the plaintiff to request the lease be transferred to his name. The defendant states the request was denied and defendant was subsequently contacted by the plaintiff's representative, advised the lease would remain in defendant's name and he would pay the rent even though there was no objection to the sublet. The plaintiff insists that it was unaware of the sublet until it was contacted by the District Attorney's Office in May, 2005.

This Court finds the defendant did not comply with the provisions of paragraph 16 of the lease and Real Property Law §226-b, by failing to provide a written request to sublet by certified mail return receipt requested, and seeking the remedy provided upon failure to obtain consent. In addition, the defendant did not comply with the provisions of the New York City Rent Stabilization Law § 26-511( c )(12) (f), which indicates the sublet should only have been for two years. There is no evidence of an illusory tenancy and it would be unfair to allow the defendant who failed to comply with the terms of both the lease and statutes to assert that his tenancy ended as of the sublet in 2001. In addition, pursuant to the terms of the lease , having abandoned the property as of the date of the sublet, the defendant is liable for the rent until the end of the lease, that period would be from June, 2005 through August, 2005.

On a review of all the papers on this motion, the court finds that the plaintiff has

established a prima facie entitlement to summary judgment inasmuch as the sublet was not requested of the plaintiff in writing and the defendant had not obtained the plaintiff's consent pursuant to the terms of the lease between the parties. The extent of the total amount owed, however, becomes a question of fact, as the defendant indicates there was no return of his deposit and the amounts owed are disputed between both the plaintiff and the defendant. The account statement for the rent that is past due has not been certified and is somewhat ambiguous on it's face. The breakdown of charges does not match the balance column or indicate whether the defendant's deposit was taken into account. As such, plaintiff's motion is granted but [*6]only as to liability for the months of June 2005 through August 2005.


The lease at paragraph 23, is titled "Public Taking" and states,

"The entire building or a part of it can be acquired (condemned)

by any government agency for a public or quasi-public use or

purpose. If this happens, this lease shall end on the date the

government or agency take title...."

The defendant relies on this paragraph of the lease to assert that the quarantine of the apartment by the District Attorney's Office would cause it to end effective May 31, 2005. This Court finds the reference to condemnation in the lease would require that the apartment was either acquired for purposes of eminent domain or permanently acquired by the District Attorney's Office. In this case neither occurred, therefore paragraph 23 of the lease does not apply and defendant is not excused from his obligation to pay rent to the end of the lease.

The Court finds that the defendant had abandoned the premises in 2001 when he sublet the apartment, constructive eviction does not apply to these circumstances and the plaintiff can not assert use and occupancy. Finally, there is no evidence that the District Attorney's Office refused to release the apartment to the plaintiff or that it presumed the defendant was still in possession of the apartment after August 31, 2005. Defendant's cross- motion is denied, he has not made out a prima facie case.

Accordingly, for the foregoing stated reasons plaintiff's motion for summary

judgment is granted but only on the issue of liability. Defendant's cross-motion is denied. The only issue of fact remaining is the amount owed the defendant through August 31, 2005. Movant shall serve a copy of this Order with Notice of Entry upon all sides and the appropriate court clerk . This matter will be set down for an assessment of damages upon submitting and filing with the Court a Notice of Inquest and paying the appropriate fee, if required.

The foregoing shall constitute the Decision and Order of the Court.

Dated: January 10, 2008 [*7]

Manuel J. Mendez

Judge, Civil Court