W7879, LLC v Roberts 2017 NY Slip Op 30486(U) March 17, 2017 Supreme Court, New York County Docket Number: /16 Judge: Manuel J.

Transcription

1 W7879, LLC v Roberts 217 NY Slip Op 3486(U) March 17, 217 Supreme Court, Ne York County Docket Number: 15529/16 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 3/17/217 2:37 PM INDEX NO /216 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MANUELJ.MENDEZ PART13 Justice W7879, LLC, -Against- IANTO ROBERTS, Plaintiff INDEX NO /16 MOTION DATE MOTION SEQ. NO 1 MOTION CAL. NO Defdant. The folloing papers, numbered 1 to _5_ ere read on this motion to compel defdant to provide a Verified Bill of Particulars or alternatively to strike his anser and cross-motion to Dismiss the complaint against defdant for failure to state a cause of action pursuant to CPLR 3211 (a)(7). - -z () <( _ I- a::: <.!> ::::> z...,_ 3: I- c..j..j a::: :::: LL WW LL J: l- a::: a::: >o..j LL..J ::::> LL l- o a. a::: <( () -z t:= ::!: Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... Ansering Affidavits - Exhibits Replying Affidavits I PAPERS NUMBER Cross-Motion: X Yes No Upon a reading of the foregoing cited papers, it is ordered that this motion to compel defdant to provide a Verified Bill of Particulars or alternatively to strike the anser is died. The cross-motion to dismiss the complaint for failure to state a cause of action is granted, the complaint is dismissed. Plaintiff brings this action to recover against the defdant for unjust richmt and for the value of use and occupancy of premises that defdant occupied ith his ife Judith Coh Roberts, the tant of record, at premises located at 23 West 79 h Street, Apartmt 14N, Ne York, N.Y. (hereinafter "premises"). The premises ere rted by defdant's ife Judith Coh Roberts, pursuant to a lease agreemt dated April 1, 23, expiring April 3, 25. The lease as reed, by lease extsion agreemt, for an additional to years on March 3, 25, for an additional year on February 16, 27, February 14, 28, March 9, 29 and February 8, 21. The lease expired on April 3, 211 ithout any further reals. The lease and lease extsions ere only signed by defdant's ife Judith Coh Roberts. None of the leases or lease extsions name the defdant as a tant. In August 21 Ms. Roberts commced an action against the plaintiff in this county, under index number 11213/21,for a judgmt declaring the apartmt Unit as Rt Stabilized, for a money judgmt for rt overcharge and for attorneys fees. After joinder of issue that matter as referred to the Hon. Joan M. Kney, ho on July 17, 213 granted Ms. Coh's motion for a declaratory judgmt, declared the apartmt to be rt stabilized and ordered a referce to determine the legal rt and of 4

3 [* FILED: 2] NEW YORK COUNTY CLERK 3/17/217 2:37 PM INDEX NO /216 rt overcharges. The matter as referred to Special Referee Jeffrey A. Heleitz ho took testimony of itness, and after a thorough revie of all the documtary and testimonial evidce, determined that Ms. Roberts oed $113,45.64 for the total unpaid rt through June 215; that she as titled to a refund for rt overcharges prior to May 21 in the amount of $7,353.48, leaving a total due and oing for unpaid rt in the amount of $15, Justice Kney confirmed the Referee's report and defdants tered judgmt against Judith Coh Roberts on April 6, 216 in the sum of $112, , such sum including pre-judgmt interest on the judgmt amount from July 1, 215. On August 1, 216 Ms. Roberts filed for Chapter 7 Bankruptcy in the Bankruptcy Court for the Southern District of Ne York. On June 23, 216 Plaintiff commced this action against defdant lanto Roberts to recover the sum of $138, for Unjust Enrichmt and for Use and Occupancy. Defdant ansered and asserted t affirmative defses. Plaintiff no moves to compel the defdant to provide a Verified Bill of Particulars or alternatively to strike the anser. Defdant cross-moves to dismiss the complaint for failure to state a cause of action. Defdant argues that it is not a tant but an occupant of the apartmt as an immediate family member (spouse) of the tant and that under the leases only the tant (Judith Coh Roberts) is liable for rt. Defdant further argues that he is not liable for rt unless and until he exercises his succession rights, hich have not be exercised here. Finally he argues that plaintiff cannot sue for unjust Enrichmt h there as a ritt contract bete Plaintiff and the tant Judith Coh Roberts. Under CPLR 3211(a)(7) a court may dismiss a complaint for failure to state a cause of action. The court's role on this motion is to determine h a cause of action is stated ithin the four corners of the complaint (Frank v. Daimler Chrysler Corp., 292 A.O. 2d 118, 741N.Y.S.2d 9 [1 5 t. Dept. 212]); Sokoloff v. Harriman Estates Developmt Corp., 96 N.Y. 2d 49, 754 N.E. 2d 184, 729 N.Y.S. 2d 425 [21] a court must search the complaint for a cognizable legal theory). Although on a motion to dismiss plaintiff's allegations are presumed to be true and accorded every favorable inferce, conclusory allegations - claims consisting of bare legal conclusions ith no factual specificity - are insufficit to survive a motion to dismiss (Godfrey v. Spano,13 N.Y. 2d 358, 92 N.E. 2d 328, 892 N.Y.S. 2d 272 [29]). A Tant is defined as "any person or persons named on a lease or lessee or lessees, or ho is or are a party or parties to a rtal agreemt and obligated to pay rt for the use or occupancy of a housing accommodation." An Occupant is defined as "any person occupying a housing accommodation as defined in and pursuant to section 235-f of the Real property la. Such person shall not be construed a tant for the purpose of this code." A Family Member is defined as "(1) A spouse, son, daughter... of the tant or permant tant." (See Rt Stabilization Code Section252.6(d),(I) and ()). In accordance ith these definitions the tant is Judith Coh Roberts and defdant is an occupant and family member of the tant. 2 of 4

4 [* 3] FILED: NEW YORK COUNTY CLERK 3/17/217 2:37 PM INDEX NO /216 "Any lease or rtal agreemt for residtial premises tered into by one tant shall be construed to permit occupancy by the tant, immediate family of the tant, one additional occupant, and depdt childr of the occupant provided that the tant or the tant's spouse occupies the premises as his primary residce." ( Real Property La Section 235-f(2)). As an occupant and family member of a Rt Stabilized tant, ho has resided ith the tant in the apartmt as their primary residce, defdant has a right to succeed to the premises if the tant dies or vacates ( Rt Stabilization Code Section (b)(1 )). Hoever, until a lease is tered into, the successor in interest to the original tant is not yet a tant ( 245 Realty Associates v. Sussis, 243 A.D.2d 29, 673 N.Y.S.2d 635 [1 5 t. Dept. 1998]). Defdant lanto Roberts resided at the premises ith the Tant, his spouse, Judith Coh Roberts. He as titled to reside therein as an immediate family member of the tant and had a right to exercise succession rights h the tant died or vacated the premises. Hoever, he left the premises at the same time as the tant h she vacated the premises. He as never a party to the lease or any of the lease extsion agreemts. "The Landlord may recover a reasonable compsation for the Use and Occupation of real property, by any person, under an agreemt, not made by deed; and a parol lease or other agreemt may be used as evidce of the amount to hich he is titled."( Real Property La Section 22). "An action to recover for the use and occupation of premises cannot be maintained ithout proof of an agreemt, express or implied, to pay rt. (see Lamb v. Lamb, 11 Sickels 317, 146 N.Y. 317, 41 N.E. 26 [1895]; Deickler v. Abrams, 159 N.Y.S.2d 449 [1956]). There is no agreemt expressed or implied that ould subject the defdant lanto Roberts to pay rt to the plaintiff. All agreemts and all liability for the paymt of rt and/or use and occupancy are the responsibility of the tant, Judith Coh Roberts, his ife. " While a plaintiff seeking the equitable remedy of unjust richmt is not required to allege privity, the pleadings must assert some relationship bete the parties that could have caused reliance or inducemt, and that relationship cannot be too attuated. A plaintiff must plead some relationship ith the defdant sufficit to give rise to a finding that rettion of the befits is unjust. A plaintiff pleads a sufficit relationship ith the defdant, as required to state a claim for unjust richmt, by alleging that the befit as conferred at the behest of the defdant." Such relationship ith the defdant causing reliance or inducemt has not be alleged. Plaintiff's complaint fails to state a cause of action against the defdant to recover on either the First cause of action for Unjust Enrichmt, or its Second cause of action for Use and Occupancy. What plaintiff seeks to do is collect from the defdant a judgmt it obtained against the tant Judith Coh Roberts. The remainder of defdant's motion is died as sanctions is not arranted. Accordingly, it is ORDERED that the motion to compel discovery or alternatively to strike the anser is died, and it is further ORDERED that the cross-motion to dismiss the complaint for failure to state a cause of action is granted, and it is further 3 of 4

5 [* 4] FILED: NEW YORK COUNTY CLERK 3/17/217 2:37 PM INDEX NO /216 ORDERED, that the complaint is dismissed as against the defdant for failure to state a cause of action, and it is further ORDERED that the clerk of the court ter judgmt in favor of the defdant di~missing the complaint in its tirety. ENTER: Dated: March 17, 217 L~ Manuel J. Mdez J.S.C. MANUEL J. MENDEZ J.S.C. Check one: X FINAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST D REFERENCE 4 of 4