Bogatin v Windermere Owners LLC

Bogatin v Windermere Owners LLC 2012 NY Slip Op 06265 Decided on September 25, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 25, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Richter, JJ.
103489/11

[*1]8093 Marc Bogatin, Plaintiff-Respondent,

v

Windermere Owners LLC et al., Defendants-Appellants.




Cullen & Troia, P.C., New York (Wayne L. Desimone of
counsel), for appellants.
Marc Bogatin, respondent pro se.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 8, 2011, which denied defendants' pre-answer motion to dismiss the complaint, unanimously affirmed, with costs.

The court properly looked beyond the four-year period prior to the filing of the rent overcharge complaint (see CPLR 213—a; Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26—516[a][2]) since, in opposition to defendants' motion to dismiss the complaint, plaintiff presented sufficient evidence that defendants had engaged in a fraudulent scheme to remove the subject apartment from rent regulation (see Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358 [2010]). Plaintiff's allegations that defendants falsely claimed to have undertaken substantial improvements prior to his tenancy were supported by, among other things, plaintiff's affidavit and a contractor's estimate. At this stage of the proceeding, the court properly denied defendants' motion, affording plaintiff the opportunity to engage
in discovery on the issue of the alleged fraudulent deregulation.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 25, 2012

CLERK