New York Law JournalNovember 14, 2001

CIVIL COURT

Housing Part h

Judge Elsner

Salient Facts:

In 1997 Respondent and Petitioner had entered into a stipulation whereby Respondent became a tenant qualified for protection under the New York City Loft Law. In or about July 2001, Petitioner commenced this proceeding on the grounds that, the agreement has become void as Respondent is an illegal alien. Thus, Respondent is not entitled to Loft Law protection and is only a month to month tenant. Respondent moves for dismissal of the instant proceeding or, in the alternative, consolidation with another holdover proceeding commenced by the instant petitioner against another tenant of the same building.

Motion to Dismiss:

Respondent moves to dismiss this proceeding on the ground that the petition has failed to state a cause of action. Respondent argues that there is no basis under RPAPL §711 for this proceeding. Respondent maintains that he is the tenant qualified for protection, as agreed by the parties in the aforementioned stipulation. As such, his term has not expired and petitioner may not simply evict him.

Petitioner argues that respondent, as an "illegal", non-resident alien, is not entitled to rent regulated protection as proscribed by the New York City Loft Law. Petitioner argues that the Loft Law (MDL §280 et. Seq.) applies only to "residential occupants" or "residents" of this city. Persons in the country illegally and those here temporarily, Petitioner argues, are not entitled to any of the protections and rights set forth under the Loft Law as the courts cannot condone "blatant" violation of the laws of the United States.

It is well settled that summary proceedings are creatures of statute and may only be commenced on the grounds set forth under the RPAPL. Petitioner has not cited to any other violation or ground for this proceeding under RPAPL §711. As such, the only issue before the court is whether or not Respondent's immigration status affects his rights under the New York City Loft Law.

Petitioner has not presented this Court with any documentation that Respondent is in fact, an "illegal" non-resident alien. An order from the Immigration and Naturalization Service determining that Respondent was indeed an "illegal" non-resident alien currently residing in this country might have provided this proceeding some validity. Merely alleging Respondent's status, "upon information and belief" is insufficient to establish a cause of action. The fact that Respondent has not presented any evidence to the contrary is irrelevant as Petitioner has yet to establish its prima facie case. However, for the purposes of this motion, the Court will deem the facts alleged in the petition to be true and address the legal arguments.

Petitioner cites to Honeyman v. Collingwood, 183 Misc2d 339, 705 NYS2d 520 (App. Term, 1st Dep't., 2000) for the proposition that Housing Courts can enforce immigration law violations in a landlord-tenant context and thereby deny a claimant rent regulatory protection. Petitioner states that in Honeyman, the Appellate Term held that a claimant could not be a successor to a rent stabilized apartment as she did not have the type of visa that allowed residency for more than one year. However, a careful reading of that case reveals that the type of visa held by the claimant was merely a factor considered by the trial court in rendering its decision and not the basis for such a holding.

In Honeyman, respondent claimed succession rights from her mother who had vacated a rent stabilized apartment. The trial court held for the landlord on the ground that respondent lacked the customary indicia showing a continuous occupancy of the subject apartment for the required two year period. In addition, it was shown that respondent was a citizen of Sweden, was the sole shareholder of a viable Swedish corporation which was not authorized to conduct business in New York, maintained an active bank account in Sweden and had a type of Visa that required permanent residency in Sweden and only allowed residency in New York for up to a year. After reviewing this evidence in it's entirety, the Appellate Term affirmed the trial court. Neither the trial court nor the Appellate Term held that respondent's visa type or respondent's status under the immigration law, determined whether respondent was entitled to succession rights.

Further, petitioner is unable to cite to any statute or case law that has held that a prerequisite to rent regulatory protection is either citizenship or a valid visa. This Court's investigation has not revealed any requirement that citizenship or proper immigration papers are required to qualify for rent regulatory protection. While enforcement of immigration laws may lead to a different proceeding being commenced, being an illegal alien, in and of itself, is not sufficient grounds to deny protected status to Respondent.

Conclusion:

The motion to dismiss is granted. The remainder of Respondent's motion is denied as moot. This constitutes the decision and order of the Court.

Date Received: November 13, 2001