Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)

Citation: Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)
Parent Document: Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)
Jurisdiction: New York (state)
Effective Date: 2022-06-29
Original Source: https://www.courtlistener.com/opinion/6620002/sapp-v-clark-wilson-inc/ ↗

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However, my colleagues in the majority have reached an issue not decided by the Supreme Court and, in effect, concluded that the determination of whether an illusory tenancy exists is a question of law rather than a factual determination. I submit that such a determination is contrary to this Court's precedent. In DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC. (102 AD3d 725), an action with facts similar to the facts of this case, this Court, inter alia, reversed the Supreme Court's determination that the defendants in that case demonstrated, as matter of law, that the occupants of the single-occupancy rooms in that defendant owner's building were licensees and not tenants of those rooms (see id. at 730). There, this Court remitted the matter to the Supreme [*6]Court for further proceedings (see id. at 726). There, as here, the plaintiffs sought, inter alia, a judgment declaring that the single-occupancy rooms in which they were living were subject to rent stabilization; that they were permanent tenants; and that the agreement between that defendant owner to lease single-occupancy rooms to the defendant counseling center for amounts above their legal regulated rent constituted an illusory tenancy (see id. at 727). The plaintiffs in that case, like the plaintiffs here, alleged that they had signed "'transitional residency agreements'" and agreed to attend an outpatient substance-abuse treatment program owned and operated by the counseling center (id. at 727). In that action, the complaint alleged that the counseling center was able to pay the inflated illegal rent, which was almost six times the legal regulated rent, to the owner and still profit "by collecting rental payments directly from the New York City Human Resources Administration for each resident, and by charging Medicaid for each substance-abuse treatment session attended by the residents" (id.). This Court found that the material allegations in the complaint raised factual issues as to the rights of the parties which could not be determined as a matter of law (see id. at 730). Here, the conclusion reached by my colleagues in the majority—an issue not decided by Supreme Court—neither comports with nor distinguishes this Court's precedent in DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC. (102 AD3d 725).

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