Motion-Secondary: Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe

On June 25, 2019 a Motion-Secondary was filed involving a dispute between Bard Avenue Realty Llc, and Hava Arifi, Jane Doe, John Doe, for Landlord and Tenant - Holdover in the District Court of Richmond County.

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FILED: RICHMOND CIVIL COURT - L&T 06/17/2021 08:05 INDEXAMNO. LT-051697-19/RI [HO]
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/17/2021

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF RICHMOND: HOUSING PART Y
____---------___________________________________________x
BARD AVENUE REALTY LLC,

Petitioner, INDEX NO.: L&T 51697/19

-against-

DOE"
LELAND ROGAN, HAVA ARIFI, "JOHN
and "JANE DOE",

Respondents.
--------------------------------------------------------X

MEMORANDUM OF LAW IN REPLY TO THE OPPOSITION
TO THE MOTION

RESPECTFULLY SUBMITTED,

NOVICK EDELSTEIN POMERANTZ P.C.
ATTORNEYS FOR PETITIONER
733 YONKERS AVENUE
YONKERS, NEW YORK 10704

(914) 375-0100

(914) 375-0699 [FAX]
BY: GREGORY S. BOUGOPOULOS, ESQ.
gbougopoulos@novickedelstein.com

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STATEMENT OF FACTS AND PROCEDURAL HISTORY

Petitioner respectfully refers the Court to the accompanying Affidavit in Reply of Shoshana

Scheiner ("Landlord Aff."), and the exhibits attached thereto, for facts in reply to Respondent HAVA

ARIFI's ("Arifi") opposition to Petitioner's motion to vacate the stay due to the filing of a COVID-19

hardship declaration (the "Motion").

ARGUMENT

I. ARIFI IS NOT A LAW FUL OCCUPANT
PROTECTED FROM EVICTION

The Preamble of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (the

"CEEFPA") (§ 3, lines 16-21) states in relevant part:

the intent of this legislation [is] to avoid as many evictions and
foreclosures as possiblefor people experiencing a financial hardship
during the COVID-19 pandemic.... As such it is necessary to

temporarily allow people impactedby COVID-19 to remain in their
homes [emphasis added].

Thus, the CEEFPA did not dictate that its intent is to prevent a//evictions. Indeed, the legislation

only protects "tenants", as defined in the law. Par. A. § 3.

occupant"
Arifi argues that she is a "lawful solely based upon the fact that she moved into

the apartment while the former tenant (and Respondent) LELAND ROGAN ("Rogan") was living

there. However, Arifi has stretched this phrase to her benefit a bit too far, since the specific facts

of this case do not give Respondents protection from eviction.

Real Property Law § 235-f allows every residential tenant-lessee to live with one occupant

(and their dependents), regardless of whether the lease limits occupancy, so long as the tenant

of record resides in the apartment as his or her "primary residence". When a tenant of record lives

elsewhere, without intending to return to the apartment at issue, even ifthe tenancy has not yet

been terminated or surrendered, RPL § 235-f does not protect a remaining occupant's further right

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15t
to live in that apartment. Chris-Mac Co. v. .Johnpoll, 134 Misc.2d 597 (App. Term, Dept. 1987);

67th
cf.216-220 E. St. Assoc. v. Quinn, 136 Misc.2d 188 (N.Y. City Civ. Ct. 1987) (short term prison

sentence showed tenant's intent to return, so sublease could not be rejected by landlord). Indeed,

a tenant who is relocated to a hospital, nursing home or other medical facility without a reasonable

ability to return to an apartment loses a primary residence on that location. Cohen & Zerenowitz

15t
Realty Corp. v. Asaro, 11/21/91 NYU 26, (col. 4) (App. Term, Dept.); 65 Cent. Park West, Inc.

3f'
v. Greenwald, 127 Misc.2d 547, 549 (N.Y.City Civ. Ct. 1985) (citing 31 East Street Corp. v.Joy,

5/18/83 NYU 6, [col.2] [N.Y.Sup.Ct.]); compare Soybel v. Gruber, 136 Misc.2d 430, 432 (N.Y.City

Civ.Ct.) (rent-controlled tenant left allbelongings in subject apartment while at hospital, showing

intent to return).

There is no dispute that Rogan vacated and was transferred to a nursing home in 2017;

Arifi even admits that itin her Affidavit. As the foregoing demonstrates, state law allows a landlord

to prevent occupancy under these circumstances, as long as the lease restricted occupancy of Arifi.

That is the case here, as the initialsublease between the parties only listed and allowed Rogan as

an occupant. Ex. C. Indeed, the initialsublease (Id.) and Rogan's application for the apartment

(Ex. B) do not listRogan as living, or intending to live, with anyone. Further, Rogan's relative

requested Petitioner terminate the tenancy and remove all property therein. Landlord Aff. at ¶ 6;

Ex. E. Thus, a clear intent by Rogan never to return to the apartment was evident. Even though

his tenancy was not terminated until March 31, 2019, as a predicate to this proceeding, his loss

of the apartment as a primary residence means that Arifi's right to reside in the apartment as an

undertenant of Rogan was annulled.

Furthermore, Arifi's occupancy is actually contrary to the Co-operative building's rules (Ex.

D) and proprietary lease. Ex. at ¶ 19. Now that Rogan surrendered his tenancy and possessory

rights (Motion at Ex. A) and Arifi actually agree to vacate (Id.), it ispreposterous to suggest a

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hardship declaration allows her to stay in occupancy, solely by the fact that a warrant of eviction

issued.1
has not

Arifi cited a number of cases in her opposition papers where a declaration was filed but

"tenants"
where a stay was put in place. Yet, many involve actual or "lessees". Matter of Cabrera

v. Humphrey, 192 A.D.3d 227 (3d Dept. 2021) (landlord-tenant relationship on a month-to-month

basis); Schweinger v. Perlis, 2021 N.Y. Slip Op. 21043 (N.Y. City Civ. Ct.) (the respondent was a

lessee subject to a nuisance holdover proceeding); Jenkins Portfolio Companies LLC v. Grant L&T

732223/19 (N.Y. City Civ. Ct.) (Decided May 5, 2021) (nonpayment proceeding, thus implying a

landlord-tenant relationship). In Jefferson Estates LLC v. Adewumi, L&T 77969/2018 (N.Y. City Civ.

Ct.) (Decided November 18, 2020), a hardship declaration was not filed under CEEFPA (since

decided pre-CEEFPA). However, that respondent's status as tenant would entitle the respondent

to a stay ifa declaration was filed. No landlord-tenant relationship was alleged by Arifi; indeed, she

does not dispute Petitioner's allegation in the Motion of no rent being paid by her for this

apartment. She does not even allege paying Rogan money for the apartment while he resided

there.

Other cases cited in Arifi's opposition papers regarding stays awarded to non-tenants are

distinguishable. In Realty Enter. LLC v. Williams, 2021 NYLJ LEXIS 360 (N.Y. City Civ. Ct.), Judge

Kimon Thermos dealt with whether a 75 year old occupant and purported licensee had a colorable

succession defense. He determined that since such individual would have standing on an illegal

lockout proceeding, this individual, as a "licensee", qualified as a "lawful occupant". Arifi has not

"succession"
alleged nor could she allege rights to this cooperative apartment.

1Arifiargued that Petitioner'sdeciding to wait to order a warrant until a disposition of all
Respcadents'
accrued was a conscious decision. This ignores the fact that even with an issued warrant,
Arifiwould be entitled to a stay (iffound to be a "lawful occupant") under the CEEFPA. Part A, § 8. Thus,
whether a warrant issued or did not issue in thiscase should not be a consideration by this Court.

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Indeed, since the legislature, at the time of the enactment of the HSTPA did not revoke

RPAPL § 713(7), it thus did not include licensees, even those with 30 day occupancy, as only

evictable for process under RPAPL § 711. This view of licensees as evictable even without process

was allowed by the Appellate Term, Second Department, in Zhu v. Li, 70 Misc.3d 139(A) (App.

occupants"
Term, 2d Dept. 2021). It seems bizarre to say that Arifi and the Does are "lawful (and

protected from eviction under CEEFPA), when they would not be allowed to be restored to

possession via an illegal lockout proceeding.

The illegal !ockout decisions cited by Arifi in her opposition papers should be limited to its

fact(s) and are distinguishable. Salazar v. Core Servs. Grp., Inc., 67 Misc.3d 1206(A) (N.Y. City Civ.

Ct. 2020) actually contradicts Appellate Term, Second Department law, another decision of the

same court ( Jiñiêñéz v. 1171 Washington Ave., LLC 67 Misc.3d 1222[A][N.Y. City Civ. Ct. 2020])

and even Appellate Term, First Department law. Gonzales v. Soho Village Realty Inc., 47 Misc.3d

15t
76 (App. Term, Dept. 2005). Also, Morgan v. 440 St. Marks Realty LLC, 6/18/20 N.Y.L.J. 17,

(col. 3) (N.Y. City Civ. Ct.), while decided in this Court, was decided on an inquest, and thus

without opposition.

To the extent that 2011 Newkirk Equities LLC v. Youna, L&T 84952/19 (N.Y. City Civ. Ct.)

(Decided May 24, 2021), holds that a licensee can be a "lawful occupant", even after agreeing to

vacate, it incorrectly used a New York State Law Enforcemêñt Department memo to interpret

RPAPL § 768, as allowiñg licensees to have standing to commence and maintain illegal lockout

"lawful"
procêêdings. Since this Department holds licensees are not enough to have standing to

followed.2
be restored to possession, the view of the Court in Young should not be

2Indeed, despite presumably being aware aof this "enforcement memo", the Legislature did not

specifically include licensees as the class of people who qualify as "tenants".

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Arifi next argued that the New York CityHousing Maintenance Code must be read together

with the New York State CEEFPA (despite one being a city statute, and one a state law). In any

event, the cases cited are not helpful to Arifi.Lower Manhattan Loft Tenants v. New York City Loft

BA, 66 N.Y.2d 298 (1985), was a Loft Law matter, and thus involved tenancies. Similarly, in

Shapiro v. Townan Realty Corp., 162 Misc.2d 630 (N.Y. City Civ. Ct. 1994), the petitioner in the

subject H.P. action had standing to sue because he was stilla "tenant", due to a stay on the

warrant of eviction. Similarly, in Cruz v. Sauare Block Assoc., Inc., 29 Misc.3d 1207(A) (N.Y. City

Civ. Ct. 2010), the petitioner had standing to seek an order to correct, particularly since he was

still!itigating the possessory judgment entered against him on appeal, which denied his illusory

1St
tenancy defense, eventually decided against him at 29 Misc.3d 138(A) (App. Term, Dept. 2010);

see also Rivellini v. Rolf, 43 Misc.3d 1202(A) (N.Y. City Civ. Ct. 2014) (loft board application dispute

pending, allowing HP action in interim).

Arifi also argued her lack of agreement to pay is not a factor in a stay under CEEFPA.

However, even in Williams, supra, a factor the court used to continue a declarant's stay was the

fact the occupant had agreed to pay use and occupancy previously. Here, Arifinever agreed to pay

use and occupancy (Motion at Ex. A); and there is no dispute that she never signed a lease or paid

rent for the apartment (whether to Petitioner or Rogan). Compare TzlfilRealty Corop. v. Muzrehaj,

2021 N.Y. Slip Op. 21163 (N.Y.City Civ. Ct.) (petitioner sought use and occupancy pendente lite

pre-trial, against former superintendent's spouse, and no possessory judgment issued in favor of

petitioner; stay imposed).

Thus, Arifi did not set forth anything in her opposition papers that Petitioner put Arifi into

possession on consent, and cannot show she has a right to remain, due to the subtenant of record

no longer maintaining a possessory interest. The CEEFPA may protect good faith lawful occupants

in the meaning of RPAPL § 711. Itdoes not protect Arifi. Thus, Petitioner's request to vacate the

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stay and issue a warrant of eviction against Arifi should be granted.

B. The Court should allow a warrant of eviction
against Respondents JOHN DOE and JANE DOE

While Arifi's counsel argues he can argue for Respondents JOHN DOE and JANE DOE

(collectively, the "Does") as a "friend of the Court", Arifi's counsel should not be permitted to opine,

since this is not a DRP-213 motion. Compare Jefferson Estates LLC v. Adewumi, Index No. L&T

77969/18 (Civ. Ct. Kings Cty) (Decided November 18, 2020) (Scheckowitz, J.). Furthermore, Arifi

Aff. did not indicate her brother, Ferhat Arifi, is unaware of his case, since she â!!eged he parks his

building.3
car at the She also is clear she does not have a power of attorney for him, inferring he

is capable of defending his own rights. His failure to appear means either he does not care to stay

the eviction, or she is simply intentionally defaulting as a strategic move.

Even ifthe Court finds Arifi'scounsel can make arguments for the Does, Arifiadmitted she

has resided with her brother since "early 2018". Thus, the Does are not licensees, having taken

home.4
occupancy after Rogan was transferred to a nursing Also, she never disputed her brother

is not in the military or dependent upon anybody in the military. Therefore, even if Shoshana

Scheiner's affidavit in the Motion is defective, there is no dispute as to any occupant's military

status.

Therefore, the warrant of eviction should issue against the Does.

3Arifidoes not allege parking spaces are assigned or that passes must be given to park. Thus, an
individual parking in a parking lot has no probative value.

he Does are squatters, as they entered possession only with Arifi'spen hission. Since Arifihas
not set forth any evidence she isa tenant or landlord, she has no authority to allow him or anyone else
into occupancy. RPL § 235-f does not permit her brother to reside there either. First Edition Composite
Inc. v. Seymour, 1/23/91 NYl-J 24, (col. 5) (N.Y. Cty Civ.Ct.) (citing Diocese ofBuffalo v. McCarthy, 91
[4"'
A.D.2d 213, 218 Dept. 1983]); compare Town of Hempstead Housing Auth. v. Lindner. 16 Misc.3d
894 (N.Y. Dist. Ct. 2007) (squatter holdover proceeding does not liebecause tenant of record allowed
respondent into possession); Bistany v. Williams., 83 Misc.2d 228 (N.Y. City Ct. 1975).

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CONCLUSION

The Court should grant the Motion in itsentirety.

Dated: Yonkers, New York
June 17, 2021

NOVICK EDI!f.STEIN POMERANTZ P.C.
ATTORNEYS FOR PETITIONER
733 YONKERS AVENUE
YONKERS, NEW YORK 10704
(914) 375-0100

(914) 375-0699 [FAX]
BY: GREGORY S. BOUGOPOULOS, ESQ.
gbougopoulos@novickedelstein.com

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NOTICE OF ENTRY INDEX NO.: L&T 51697 YEAR: 2019
Sir:-Please take notice that the within is a (certified) CIVIL COURT OF THE CITY OF NEW YORK
true copy of a COUNTY OF RICHMOND: HOUSING PART Y

duly entered in the officeof the clerk of the within
named court on , 2021 BARD AVENUE REALTY LLC,

Petitioner,
Dated:
-against-

Yours, etc.
DOE"
NOVICK EDELSTEIN POMERANTZ P.C. LELAND ROGAN, HAVA ARIFI, "JOHN
and "JANE DOE",
Attorney(s) for
Respondents.
Ofñce and Post Ofñce Address
733 Yonkers Avenue
Yonkers, NY 10704

To: MEMORANDUM OF LAW IN REPLY TO THE OPPOSITION
TO THE MOTION

Attorney(s) for _ __ ____ __ _

Notice of Settlement NOVICK EDELSTEIN POMERANTZ P.C.

Sir:-Please take notice that an order Attorney(s)for Petitioner

of which the within isa true copy will be presented ofHce and Post Ofñce Address, Telephone
for settlement to the Hon.
on the day of 2021 733 Yonkers Avenue
Yonkers, New York 10704
at M. (914) 375-0100

Dated,
Yours, etc. COMPLIANCE PURSUANT TO 22 NYCRR §130-1.1[a]
NOVICK EDELSTEIN POMERANTZ P.C. To the bestof theundersigned's knowledge, infrn±n and
beliefformed afterinquiry reasonableunder thecircumstances,
the withindocument(s) and contentions contained hereinare
Attorney(s)for not frivolousas definedin22 NYCRR §130-1.1[a]

Ofñce and Post Ofñce Address
733 Yonkers Avenue
Yonkers, NY 10704
To
Attorney(s)for

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Case Info

Case No.

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Document Filed Date

June 17, 2021

Case Filing Date

June 25, 2019

County

Parties

Bard Avenue Realty LLC Plaintiff
Bougopoulos, Gregory Attorney for the Plaintiff
Hava Arifi Defendant
Jane Doe Defendant
John Doe Defendant
PAESANO, EMILIO Attorney for the Defendant
Tiffany Liston Attorneys for Defendants
JEFFREY SALTIEL Attorney
SEAN DAVIS Attorney
JEFFREY SEIGEL Attorney
BRITTANY DANIELS Attorney
STEVEN HASTY Attorneys for Plaintiffs
RAMONA GOODMAN Attorneys for Defendants
MARC SCOLNICK Attorney
MARK WARD Attorneys for Defendants
ELIZABETH MILLER Attorneys for Defendants
ILENE SUSSMAN Attorney

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Motion-Secondary: Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe

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