Preview
FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
"P"
EXHIBIT
FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF QUEENS: HOUSINO PART E
. . . X Index No.: 54295/16
FAZLUR KHAN,
Motion Cal.#_Motion Seq.#
Petitioner,
-against- AMENDED DECISION/ORDER
FREDERIM V. NICKELL, byCPLR§2219(a).af thopapersconsidered
asrequired
Recitadon, in thereview.Motion:
DOE"
"JANE & "JOHN DOE
Respondents, Papers Nonsbered
Nodgeof MotionandAmdavitsAnnexed............M
a eNMlms
A.D
R Ai t .. . . . . . . . . . . . . . . . . . . ..5
Exhibits..................-..............................................
Odger...........................................-........................
TapeNos: Q Start: End:
Q Start: Ends
HON. MARIA RESSOS, J.H.C.
Respondent moves for an order dismissing the petition pursuant to RPAPL§ §711 & 735 on the
grounds that the respondent has not been properly served with the five day notice; pursuant to
CPLR§ 3211 (a) (8) for failure to acquire personal jurisdiction over the respondent and pursuant
to RPAPL §§711 & 741 on the grounds that the five day notice and the potice ofpetition and
petition are defective. Petitioner in opposition argues that the motion should be denied as any
issues of facttegarding service of the five day notice should be addressed in a traverse hearing
and the five day notice and notice of petition are not defective as respondent signed a lease with
the prior owner of the building agreeing to pay the amount demanded but that amount was
discounted because he was providing janitorial services in the building.
This is a non-payment proceeding where Petitioner seeks to recover the sum of $7,200.00 in rent
arrears calculated at the rate of $1,200.00 per month from September 2015 to January 2016.
Petitioner served a five day notice to pay on the respondent on February 4, 2016 by personal
service on the respondent at the premise·s. The notice of petition and petition were served on the
mail"
respondent by "nail and on February 20, 2016. The case first appeared on the court
calendar on March 7, 2016, Respondent, appearing with counsel, interposed an answer which
included eight affirmative defenses and counterclaims for legal fees and an abatement. The case
was adjourned several times until June 29, 2016 when the Court heard oral arguments and
reserved decision on the instant motion.
Respondent argues that the proceeding should be dismissed because he does not match the
description in the process server's affidavit. Petitioner argues that the disputed description.
requires a traverse hearing rather than dismissal of the proceeding. The process server's affidavit
indicates that the process server, Robert Degiuli served the respondent with the five day notice
personally on February 4, 2016 at 11:04 a.m. He describes the respondent as a 48 year old white
"black/gray"
man, 6 ft lin to 6 ft5 in height, 201-250 pounds in weight with hair. Respondent
states that the five day notice was not served on him and the physical description of him in the
affidavit of service is completely inaccurate as he is 76 years old with white hair and measures
FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
5ft 5 ins in height. . .
In order for the court to have personal jurisdiction over the respondent in a summary proceeding
service of process must be properly effectuated in accordance with RPAPL§ 735 (1). Generally,
a proper affidavit from the process server attesting to service of the papers on the tenant is prima
facie proof of service of process. However, a traverse hearing will be ordered where the
respondent pleads sufficiently detailed and specific allegations challenging the affidavit of
service. See Baer v. Lipson, 194 A.D.2d 787 (1983); Skyline Agency Inc. v. Ambrose
Coppotelli, Inc., 117 A.D. 2d 135 (1986). While the alleged inconsistencies between the
description of the respondent given by the process server and the respondent's description of
himself do not warrant dismissal, a traverse hearing would be required to determine whether in
fact Respondent was properly served.
Respondent additionally argues that the proceeding should be dismissed because he was not
properly served with the notice of petition and petition as theprocess server failed to make a
reasonable attempt to serve him personally before resorting to conspicuous service. The process
server's affidavit indicates that the process server first attempted to serve the respondent on
February 19, 2016 at 12:11 p.m. This was a Friday, a week day and during working hours. The
next attempt was on Saturday, February 20, 2016 at 11:05 a.m. As Saturday is a week-end, it is
not considered a work day, therefore service on at anytime would be considered non-
Saturday
working hours. The process server was only required to make two attempts to serve the
respondent, one during working hours and one during non-working hours, which he did in this
case, prior to affixing the papers to the door and mailing them on Monday February 22, 2016
which was next business day. The final attempt at service and the affixing to the door can be
done at the same time.
Respondent further argues that the five day notice is defective as it demands the incorrect amount
of rent and therefore the petition must be dismissed. In order to maintain a summary eviction
proceeding for nonpayment of rent there must be an agreement between the petitioner and the
respondent for the payment of rent. Petitioner alleges that the former owner and the respondent
had an agreement whereby respoiident's rent of $1,200.00 was discounted to $400.00 per month
as the respondent was providing janitorial services, When petitioner purchased the building in
November of 2012, they continued this arrangement until August 12, 2015 when Petitioner
terminated Respondent's services. Petitioner then sent Respondent a lease but Respondent
refused to sign it A landlords's failure to make a proper demand for rent is a defense to a non-
payment proceeding as a tenant is entitled to a demand prior to the commencement of a summary
proceeding for nonpayment of rent. Failure to plead and prove a proper demand for the rent
requires dismissal of the petition. Oberlies v. Oliva, 45 Misc. 2d 533, 257 N.Y.S. 2d 327 (App.
Term 1964). It is also a defense to a nonpayment proceeding that the landlord is seeking the
wrong rental amount. See e.g., Ramos v. Ferderline, N.Y.L.J. January 16, 2008 at page 28, col. 1
(Civ. Ct. Kings Co.). The landlord has the burden of proving that the rental amount requested in
the petition is correct.
Page -2-
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
in height.
5A 5 ins
In order for the court to have personal jurisdiction over the respondent in a summary proceeding
service of process must be properly effectuated in accordance with RPAPL§ 735 (1). Generally,
a proper affidavit from the process server attesting to service ofthe papers on the tenant is prima
facie proof of service of process. However, a traverse hearing will be ordered where the
respondent pleads sufficiently detailed and specific allegations challenging the affidavit of
service. See Baer v. Lipson, 194 A.D.2d 787 (1983); Skyline Agency Inc. v. Ambrose
Coppotelli, Inc., 117 A.D. 2d 135 (1986). While the alleged inconsistencies between the
description of the respondent given by the process server and the respondent's description of
himself do not warrant dismissal, a traverse hearing would be required to determine whether in
fact Respondent was properly served.
Respondent additionally argues that the proceeding should be dismissed because he was not
properly served with the notice of petition and petition as the process server failed to make a
reasonable attempt to serve him personally before resorting to conspicuous service. The process
server's affidavit indicates that the process server first attempted to serve the respondent on
February 19, 2016 at 12:11 p.m. This was a Friday, a week day and during working hours. The
next attempt was on Saturday, February 20, 2016 at 11:05 a.m. As Saturday is a week-end, it is
not considered a work therefore service on Saturday at anytime would be considered non-
day,
working hours. The process server was only required to make two attempts to serve the
respondent, one during working hours and one during non-working hours, which he did in this
case, prior to affixing the papers to the door and mailing them on Monday February 22, 2016
which was next business day. The fmal attempt at service and the affixing to the door can be
done at the same time.
Respondent further argues that the five notice is defective as it demands the incorrect amount o
day
ofrent and therefore the petition must be dismissed. In order to maintain a summary eviction E
proceeding for nonpayment of rent there must be an agreement between the petitioner and the
respondent for the payment of rent. Petitioner alleges that the former owner and the respondent
had an agreement whereby respondent's rent of $1,200.00 was discounted to $400.00 per month
as the respondent was providing jauitorial services, When petitioner purchased the building in
November of 2012, they continued this arrangement until August 12, 2015 when Petitioner
terminated Respondent's services. Petitioner then sent Respondent a lease but Respondent
refused to sign it. A landlords's failure to make a proper demand for rent is a defense to a non-
payment proceeding as a tenant is entitled to a demand prior to the commencement of a summary
proceeding for nonpayment of rent. Failure to plead and prove a proper demand for the rent
requires dismissal of the petition. Oberties v. Oliva, 45 Misc. 2d 533, 257 N.Y.S. 2d 327 (App.
Term 1964). It is also a defense to a nonpayment proceeding that the landlord is seeking the
wrong rental amount. See e.g., Ramos v. Ferderline, N.Y.L.J. January 16, 2008 at page 28, col. 1
(Civ. Ct. Kings Co.). The landlord has the burden of proving that the rental amount requested in
the petition is correct.
Page -2-
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
Petitioner in opposition.to the miotion argues that the legal registered rent for the subject premises
is $1,200.00 as Respondent executed a lease with the former owner for that amount. Petitioner
"E"
annexed as exhibit a copy of rent stabilized lease between Filippo Badalamenti, the former
owner and the respondent for a term of one year commencing December 1, 2011 and expiring
November 30, 2012. The rent roll report for the premises indicates that the legal registered rent
for the apartment is $1,200.00 and there was a preferential rent of $400.00 (Opp. Exhibit "D") .
The building was sold to the Petitioner on November 1, 2012. Respondent never executed a
lease with Petitioner. Petitioner alleges that he continued the same arrangement Respondent had
with the former owner. Petitioner commenced an administrative proceeding at the Division of
Housing and Community Renewal (hereinafter referred to as DHCR) under docket number
EO110024AD on or about June 3, 2016 requesting a determination of Respondent's rent. In it
the managing agent, Maria Axelrod writes:
the current occupant used to be the janitor of the premises and was paying only
$400.00 and rest went towards.the service he provided. Previous owner had a
signed agreement/lease dated 12/1/2011-12 establishing Legal Rent $1,200.00
while Mr. Nickell continued to pay $400.00 -as long as he provided services. ( see
copies attached) Current owner discontinued the Janitorial Services in August
2015 however Mr. Nickell refuses to sign lease and wants to continue paying
$400 for the 2 bedroom Apt., as he did for all past years. We need your help
establishing a Legal Rent as soon as possible since case in court. (Opp. Exhibit
"D")
Ms. Axelrod annexed copies of rent rieceipts from the former owner from December 2011 to
August 2012 indicating that Respondent paid $400.00 per month and got a $800.00 per month
credit for his services. If Petitioner is seeking a determination from the DHCR of what is the
correct rent clearly, there is no agreement as to what the rent is and Petitioner cannot maintain
this proceeding.
It should also be noted that Respondent had filed a rent overcharge complaint against the former
owner sometime in 2012 under docket number AV110069 R claiming that he moved into the
apartment in October 1982 and the initial rent was $250.00 and his current rent was $400.00, he
never had a lease and recently his landlord gave him a lease stating that the rent was now
$1,200.00. He wrote that he believed that he is being overcharged because "the landlord is
trying to sell the building and needs to demonstrate that the rent form my apt is $1200.00
(Motion exhibit "F"). In response to this the owner submitted a statement to the DHCR. DHCR
issued an order dated February 27, 2015 which states as follows:
After consideration of all the evidence in the record,.the Rent Administrator finds
that :
On 10/25/12, the complainant.filed an overcharge complaint alleging that he took
occupancy of the subject apartment in October 1982 as the superintendent without
a written lease at an initial rent of $250.00 per month, and the owner offered him a
Page -3-
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024
lease to commence12/01/1 1 and terminate 11/30/12 with a monthly rent of
$1,200.00.
On 11/14/12, the complaint was forwarded to the owner.
In a reply dated 11/28/12, the owner acknowledged the complainant as the
superintendent of the subject building and stated.that a portion of the rent was
waived due to him fulfilling the duties as the superintendent.
. Based on the above, the subject apartment has been occupied by an employee
since 1982, therefore making it temporarily exempt from Rent stabilization.
Therefore, the complainant is hereby advised that as long as he remains an
employee of the owner while occupying the subject apartment, there is no
landlord tenant relationship.
"L"
Therefore, it is oritered that this proceeding is terminated. Motion exhibit
emphasis supplied.
The DHCR ruled that there was no landlord tenant relationship between the parties while
respondent was the superintendent. When respondent's employment was terminated effective
August 31, 2015, he ceased being the superintendent. Petitioner was obligated to bring a
holdover case rather than a non-payment.
Accordingly, the motion to dismiss this proceeding is granted. Respondent's counterclaims are
severed.
Respondent shall serve a copy of this Decision/Order with Notice of Entry upon the Petitioner
within ten days.
Copies of this decision and order are being mailed to both parties.
Dated: December 22, 2016
· New York
Queens,
Hon. Maria Reasos J.
Petitioner's Attorney Respondent
Evey Beltrunas,Esq. Maureen Neff, Esq.
23-56 Steinway Street David A. Kaminsky & Associates, P.C.
Astoria, NY 10007 325 Broadway, Suite 504
New York, NY 10007
Page -4-
Preview
FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 "P" EXHIBIT FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS: HOUSINO PART E . . . X Index No.: 54295/16 FAZLUR KHAN, Motion Cal.#_Motion Seq.# Petitioner, -against- AMENDED DECISION/ORDER FREDERIM V. NICKELL, byCPLR§2219(a).af thopapersconsidered asrequired Recitadon, in thereview.Motion: DOE" "JANE & "JOHN DOE Respondents, Papers Nonsbered Nodgeof MotionandAmdavitsAnnexed............M a eNMlms A.D R Ai t .. . . . . . . . . . . . . . . . . . . ..5 Exhibits..................-.............................................. Odger...........................................-........................ TapeNos: Q Start: End: Q Start: Ends HON. MARIA RESSOS, J.H.C. Respondent moves for an order dismissing the petition pursuant to RPAPL§ §711 & 735 on the grounds that the respondent has not been properly served with the five day notice; pursuant to CPLR§ 3211 (a) (8) for failure to acquire personal jurisdiction over the respondent and pursuant to RPAPL §§711 & 741 on the grounds that the five day notice and the potice ofpetition and petition are defective. Petitioner in opposition argues that the motion should be denied as any issues of facttegarding service of the five day notice should be addressed in a traverse hearing and the five day notice and notice of petition are not defective as respondent signed a lease with the prior owner of the building agreeing to pay the amount demanded but that amount was discounted because he was providing janitorial services in the building. This is a non-payment proceeding where Petitioner seeks to recover the sum of $7,200.00 in rent arrears calculated at the rate of $1,200.00 per month from September 2015 to January 2016. Petitioner served a five day notice to pay on the respondent on February 4, 2016 by personal service on the respondent at the premise·s. The notice of petition and petition were served on the mail" respondent by "nail and on February 20, 2016. The case first appeared on the court calendar on March 7, 2016, Respondent, appearing with counsel, interposed an answer which included eight affirmative defenses and counterclaims for legal fees and an abatement. The case was adjourned several times until June 29, 2016 when the Court heard oral arguments and reserved decision on the instant motion. Respondent argues that the proceeding should be dismissed because he does not match the description in the process server's affidavit. Petitioner argues that the disputed description. requires a traverse hearing rather than dismissal of the proceeding. The process server's affidavit indicates that the process server, Robert Degiuli served the respondent with the five day notice personally on February 4, 2016 at 11:04 a.m. He describes the respondent as a 48 year old white "black/gray" man, 6 ft lin to 6 ft5 in height, 201-250 pounds in weight with hair. Respondent states that the five day notice was not served on him and the physical description of him in the affidavit of service is completely inaccurate as he is 76 years old with white hair and measures FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 5ft 5 ins in height. . . In order for the court to have personal jurisdiction over the respondent in a summary proceeding service of process must be properly effectuated in accordance with RPAPL§ 735 (1). Generally, a proper affidavit from the process server attesting to service of the papers on the tenant is prima facie proof of service of process. However, a traverse hearing will be ordered where the respondent pleads sufficiently detailed and specific allegations challenging the affidavit of service. See Baer v. Lipson, 194 A.D.2d 787 (1983); Skyline Agency Inc. v. Ambrose Coppotelli, Inc., 117 A.D. 2d 135 (1986). While the alleged inconsistencies between the description of the respondent given by the process server and the respondent's description of himself do not warrant dismissal, a traverse hearing would be required to determine whether in fact Respondent was properly served. Respondent additionally argues that the proceeding should be dismissed because he was not properly served with the notice of petition and petition as theprocess server failed to make a reasonable attempt to serve him personally before resorting to conspicuous service. The process server's affidavit indicates that the process server first attempted to serve the respondent on February 19, 2016 at 12:11 p.m. This was a Friday, a week day and during working hours. The next attempt was on Saturday, February 20, 2016 at 11:05 a.m. As Saturday is a week-end, it is not considered a work day, therefore service on at anytime would be considered non- Saturday working hours. The process server was only required to make two attempts to serve the respondent, one during working hours and one during non-working hours, which he did in this case, prior to affixing the papers to the door and mailing them on Monday February 22, 2016 which was next business day. The final attempt at service and the affixing to the door can be done at the same time. Respondent further argues that the five day notice is defective as it demands the incorrect amount of rent and therefore the petition must be dismissed. In order to maintain a summary eviction proceeding for nonpayment of rent there must be an agreement between the petitioner and the respondent for the payment of rent. Petitioner alleges that the former owner and the respondent had an agreement whereby respoiident's rent of $1,200.00 was discounted to $400.00 per month as the respondent was providing janitorial services, When petitioner purchased the building in November of 2012, they continued this arrangement until August 12, 2015 when Petitioner terminated Respondent's services. Petitioner then sent Respondent a lease but Respondent refused to sign it A landlords's failure to make a proper demand for rent is a defense to a non- payment proceeding as a tenant is entitled to a demand prior to the commencement of a summary proceeding for nonpayment of rent. Failure to plead and prove a proper demand for the rent requires dismissal of the petition. Oberlies v. Oliva, 45 Misc. 2d 533, 257 N.Y.S. 2d 327 (App. Term 1964). It is also a defense to a nonpayment proceeding that the landlord is seeking the wrong rental amount. See e.g., Ramos v. Ferderline, N.Y.L.J. January 16, 2008 at page 28, col. 1 (Civ. Ct. Kings Co.). The landlord has the burden of proving that the rental amount requested in the petition is correct. Page -2- FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 in height. 5A 5 ins In order for the court to have personal jurisdiction over the respondent in a summary proceeding service of process must be properly effectuated in accordance with RPAPL§ 735 (1). Generally, a proper affidavit from the process server attesting to service ofthe papers on the tenant is prima facie proof of service of process. However, a traverse hearing will be ordered where the respondent pleads sufficiently detailed and specific allegations challenging the affidavit of service. See Baer v. Lipson, 194 A.D.2d 787 (1983); Skyline Agency Inc. v. Ambrose Coppotelli, Inc., 117 A.D. 2d 135 (1986). While the alleged inconsistencies between the description of the respondent given by the process server and the respondent's description of himself do not warrant dismissal, a traverse hearing would be required to determine whether in fact Respondent was properly served. Respondent additionally argues that the proceeding should be dismissed because he was not properly served with the notice of petition and petition as the process server failed to make a reasonable attempt to serve him personally before resorting to conspicuous service. The process server's affidavit indicates that the process server first attempted to serve the respondent on February 19, 2016 at 12:11 p.m. This was a Friday, a week day and during working hours. The next attempt was on Saturday, February 20, 2016 at 11:05 a.m. As Saturday is a week-end, it is not considered a work therefore service on Saturday at anytime would be considered non- day, working hours. The process server was only required to make two attempts to serve the respondent, one during working hours and one during non-working hours, which he did in this case, prior to affixing the papers to the door and mailing them on Monday February 22, 2016 which was next business day. The fmal attempt at service and the affixing to the door can be done at the same time. Respondent further argues that the five notice is defective as it demands the incorrect amount o day ofrent and therefore the petition must be dismissed. In order to maintain a summary eviction E proceeding for nonpayment of rent there must be an agreement between the petitioner and the respondent for the payment of rent. Petitioner alleges that the former owner and the respondent had an agreement whereby respondent's rent of $1,200.00 was discounted to $400.00 per month as the respondent was providing jauitorial services, When petitioner purchased the building in November of 2012, they continued this arrangement until August 12, 2015 when Petitioner terminated Respondent's services. Petitioner then sent Respondent a lease but Respondent refused to sign it. A landlords's failure to make a proper demand for rent is a defense to a non- payment proceeding as a tenant is entitled to a demand prior to the commencement of a summary proceeding for nonpayment of rent. Failure to plead and prove a proper demand for the rent requires dismissal of the petition. Oberties v. Oliva, 45 Misc. 2d 533, 257 N.Y.S. 2d 327 (App. Term 1964). It is also a defense to a nonpayment proceeding that the landlord is seeking the wrong rental amount. See e.g., Ramos v. Ferderline, N.Y.L.J. January 16, 2008 at page 28, col. 1 (Civ. Ct. Kings Co.). The landlord has the burden of proving that the rental amount requested in the petition is correct. Page -2- FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 Petitioner in opposition.to the miotion argues that the legal registered rent for the subject premises is $1,200.00 as Respondent executed a lease with the former owner for that amount. Petitioner "E" annexed as exhibit a copy of rent stabilized lease between Filippo Badalamenti, the former owner and the respondent for a term of one year commencing December 1, 2011 and expiring November 30, 2012. The rent roll report for the premises indicates that the legal registered rent for the apartment is $1,200.00 and there was a preferential rent of $400.00 (Opp. Exhibit "D") . The building was sold to the Petitioner on November 1, 2012. Respondent never executed a lease with Petitioner. Petitioner alleges that he continued the same arrangement Respondent had with the former owner. Petitioner commenced an administrative proceeding at the Division of Housing and Community Renewal (hereinafter referred to as DHCR) under docket number EO110024AD on or about June 3, 2016 requesting a determination of Respondent's rent. In it the managing agent, Maria Axelrod writes: the current occupant used to be the janitor of the premises and was paying only $400.00 and rest went towards.the service he provided. Previous owner had a signed agreement/lease dated 12/1/2011-12 establishing Legal Rent $1,200.00 while Mr. Nickell continued to pay $400.00 -as long as he provided services. ( see copies attached) Current owner discontinued the Janitorial Services in August 2015 however Mr. Nickell refuses to sign lease and wants to continue paying $400 for the 2 bedroom Apt., as he did for all past years. We need your help establishing a Legal Rent as soon as possible since case in court. (Opp. Exhibit "D") Ms. Axelrod annexed copies of rent rieceipts from the former owner from December 2011 to August 2012 indicating that Respondent paid $400.00 per month and got a $800.00 per month credit for his services. If Petitioner is seeking a determination from the DHCR of what is the correct rent clearly, there is no agreement as to what the rent is and Petitioner cannot maintain this proceeding. It should also be noted that Respondent had filed a rent overcharge complaint against the former owner sometime in 2012 under docket number AV110069 R claiming that he moved into the apartment in October 1982 and the initial rent was $250.00 and his current rent was $400.00, he never had a lease and recently his landlord gave him a lease stating that the rent was now $1,200.00. He wrote that he believed that he is being overcharged because "the landlord is trying to sell the building and needs to demonstrate that the rent form my apt is $1200.00 (Motion exhibit "F"). In response to this the owner submitted a statement to the DHCR. DHCR issued an order dated February 27, 2015 which states as follows: After consideration of all the evidence in the record,.the Rent Administrator finds that : On 10/25/12, the complainant.filed an overcharge complaint alleging that he took occupancy of the subject apartment in October 1982 as the superintendent without a written lease at an initial rent of $250.00 per month, and the owner offered him a Page -3- FILED: QUEENS COUNTY CLERK 03/18/2024 01:44 PM INDEX NO. 705839/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/18/2024 lease to commence12/01/1 1 and terminate 11/30/12 with a monthly rent of $1,200.00. On 11/14/12, the complaint was forwarded to the owner. In a reply dated 11/28/12, the owner acknowledged the complainant as the superintendent of the subject building and stated.that a portion of the rent was waived due to him fulfilling the duties as the superintendent. . Based on the above, the subject apartment has been occupied by an employee since 1982, therefore making it temporarily exempt from Rent stabilization. Therefore, the complainant is hereby advised that as long as he remains an employee of the owner while occupying the subject apartment, there is no landlord tenant relationship. "L" Therefore, it is oritered that this proceeding is terminated. Motion exhibit emphasis supplied. The DHCR ruled that there was no landlord tenant relationship between the parties while respondent was the superintendent. When respondent's employment was terminated effective August 31, 2015, he ceased being the superintendent. Petitioner was obligated to bring a holdover case rather than a non-payment. Accordingly, the motion to dismiss this proceeding is granted. Respondent's counterclaims are severed. Respondent shall serve a copy of this Decision/Order with Notice of Entry upon the Petitioner within ten days. Copies of this decision and order are being mailed to both parties. Dated: December 22, 2016 · New York Queens, Hon. Maria Reasos J. Petitioner's Attorney Respondent Evey Beltrunas,Esq. Maureen Neff, Esq. 23-56 Steinway Street David A. Kaminsky & Associates, P.C. Astoria, NY 10007 325 Broadway, Suite 504 New York, NY 10007 Page -4-