Smoke v Windemere Owners LLC

Smoke v Windemere Owners LLC 2015 NY Slip Op 06195 Decided on July 21, 2015 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 July 21, 2015
Gonzalez, P.J., Tom, Friedman, Kapnick, JJ.
15471 113051/11

[*1] Gary Smoke, Plaintiff-Appellant,

v

Windemere Owners LLC, et al., Defendants-Respondents.

Marc Bogatin, New York, for appellant.

Rosenberg Feldman Smith, LLP, New York (Richard B. Feldman of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 30, 2014, which denied plaintiff's motion for summary judgment as to rent overcharge damages and set the matter down for a hearing, unanimously affirmed, without costs.

The court found defendant Windemere Owners LLC liable for rent overcharges based on its inability to provide adequate documentation for the improvements that were the basis for removing plaintiff's apartment from rent stabilization. However, since the improvements were made more than a decade ago and many years before the building was acquired from Windermere Chateau, Inc., the prior owner, triable issues of fact exist as to Windemere Owners, LLC's ability to rebut the presumption that the inadequately documented overcharges were willful so as to incur

liability for treble damages (see e.g. Matter of Myers v D'Agosta, 202 AD2d 223 [1st Dept 1994]; Matter of Round Hill Mgt. Co. v Higgins, 177 AD2d 256 [1st Dept 1991]).

The default formula set forth in Thornton v Baron (5 NY3d 175 [2005]) is to be used to calculate the overcharge damages.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 21, 2015

CLERK