• Civil Court, Kings County
  • 71818/13
  • Judge Jean Schneider
  • For Plaintiff: Attorneys for Petitioner: Charles Loveless, Tennenbaum Berger & Shivers LLP.
  • For Defendant: Attorneys for Respondent Seacove 1 LLC: Lauren Popper, Breier Deutschmeister Urban Popper Law Group, PLLC. Dinah Luck of MFY Legal Services represented the tenant


Cite as: 611 Banner Owners Corp. v. Seacove I LLC, 71818/13, NYLJ 1202640082709, at *1 (Civ., KI, Decided January 9, 2014)


Judge Jean Schneider

Decided: January 9, 2014


Attorneys for Petitioner: Charles Loveless, Tennenbaum Berger & Shivers LLP.

Attorneys for Respondent Seacove 1 LLC: Lauren Popper, Breier Deutschmeister Urban Popper Law Group, PLLC.

Dinah Luck of  MFY Legal Services represented the tenant

Recitation, as required by CPLR §2219(a), of the papers considered in review of motion by respondent Vaizburd to dismiss the proceeding:

Papers Numbered

Notice of Motion and supporting papers 1

Order to Show Cause and supporting papers

Answering Affidavits/Affirmations 2, 3

Reply Affidavits/Affirmations 4


Oral argument on the record






This case raises the question of whether an apparently deliberate misstatement of an apartment's rent regulatory status in the petition in a summary ho9ldover proceeding warrants dismissal of the proceeding. I find that it does.

There are three parties to the proceeding. Petitioner 611 Banner Owners Corp. Is a cooperative corporation and the owner of the building at 611 Banner Avenue in Brooklyn. Respondent Seacove I, LLC, is the shareholder and proprietary lessee of Apartment 2D at 611




Banner Avenue. Respondent Dmitry Vaizburd is the rent stabilized tenant of Apartment 2D, whose tenancy apparently pre-dates the building's conversion to cooperative ownership.

Banner's petition alleges that Seacove has breached its proprietary lease by permitting Vaizburd to make excessive noise in the apartment. Seacove argues that it has cured any violation by bringing its own holdover proceeding against Vaizburd in this court. That proceeding was settled with an agreement that placed Vaizburd on probation for one year and permits Seacove to obtain a judgment and warrant for his eviction if any excessive noise occurs during the probationary period.

Vaizburd now moves to dismiss the proceeding because the petition fails to state a cause of action against him. Vaizburd argues that petitioner has no claim against him under RPAPL Section 711 because there is no landlord-tenant relationship between petitioner and himself, and that the petition also states no claim against him under RPAPL Section 713.

Petitioner responds that it does not need to state a claim against Vaizburd. Petitioner argues that Vaizburd is simply named as Seacove's undertenant, so that if petitioner is successful on its claim against Seacove, it can also remove Vaizburd as a party in possession only as Seacove's undertenant. See November Realty Corp v. McComb, 279 AD 735 (1st Dept. 1951); Teacher's College v. Wolterding, 77 Misc. 2d 81 (AT 1sty Dept. 1974); Lippe v. Professional Surgical Supply Co., Inc., 132 Misc. 2d 293 (NY Civ. Ct. 1986); First Federal Savings and Loan of Rochester v. Moore, 157 Misc. 2d 877 (NY Civ. Ct. 1993).

The problem with petitioner's argument in this case is that Vaizburd is a rent Stabilized tenant. He has rights under the Rent Stabilization Law and Code which predate the building's reorganization as a cooperative and which would survive the termination of Seacove's proprietary lease. His rights can only be terminated in accordance with the Rent Stabilization




Code, and the petition here does not state a claim for his removal under the code. See 9 NYCRR Section 2524.

Vaizburd also argues that the proceeding must be dismissed because it mis-states the apartment's rent regulatory status. Petitioner concedes that Vaizburd is a rent stabilized tenant, but the petition alleges that the apartment is not rent regulated.

A petition that fundamentally mis-states the rent regulatory status of the apartment at issue is subject to dismissal. MSG Pomp v. Doe, 185 AD 2d 798 (1sty Dept. 1992); Villas of Forest Hills v. Lumberger, 128 AD 2d 701 (2nd Dept. 1987). While inaccuracies may be corrected by amendment, 251 East 119th Street Tenants Assoc v. Torres, 125 Misc. 2d 279 (NY Civ. Ct. 1984; Homestead Equities Inc v. Washington, 176 Misc. 2d 459 (NY Civ. Ct. 1998), petitioner does not seek to amend here. Rather, petitioner insists that the inaccurate allegation is appropriate and that this case involves an unregulated apartment. This is simply nonsense.

This case illustrates that the pleading requirement at issue is no mere technicality. An accurate statement of an apartment's rent regulatory status is necessary to apprise both the respondent and the court of important substantive rights of the parties. When, as in this case, the allegation is false or misleading, important rights that affect the outcome of the case may be masked or hidden.

For all of the foregoing reasons, the motion is granted and the proceeding is dismissed.

Dated: 1/9/14