546 W. 156 St. HDFC v Smalls

[*1] 546 W. 156 St. HDFC v Smalls 2005 NYSlipOp 51207(U) Decided on July 29, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.


546 West 156 Street HDFC,NY County Clerk's #570054/04 Petitioner-Landlord-Respondent,

against

Lenise Smalls and JOHN DOE, Respondents-Tenants-Appellants.

Tenant appeals from an order of the Civil Court, New York County, dated October 17, 2003 (Gerald Lebovits, J.) denying tenant's motion to dismiss the petition in this nonpayment summary proceeding.

PER CURIAM:

Order dated October 17, 2003 (Gerald Lebovits, J.) reversed, without costs, tenant's motion to dismiss the petition granted, counterclaims reinstated in their entirety and severed.

Landlord commenced this nonpayment summary proceeding, alleging that the premises owned by this HDFC cooperative corporation is statutorily exempt from regulation (Administrative Code of the City of New York, § 26-504[a]; Rent Stabilization Code [9 NYCRR] § 2520.11[j]). Tenant, alleging that the premises is rent stabilized, moved to dismiss the petition for misstating the regulatory status of the premises (RPAPL § 741). Tenant relied upon a "so ordered" stipulation settling a previous nonpayment proceeding between the parties which expressly provided that landlord HDFC "grant her tenancy pursuant to the Rent [*2]Stabilization Code of NYC ... to commence with a two-year rent stabilized lease". In accordance with the stipulation, landlord HDFC provided tenant with a rent stabilized lease and thereafter a rent stabilized renewal.

Civil Court erred in denying tenant's motion to dismiss since, notwithstanding the statutory exemption otherwise available to landlord, the stipulation expressly conferring rent stabilization status upon the tenant is binding (see Kent v Bedford, 237 AD2d 140 [1997]). While coverage under a statutory rent regulation scheme cannot be created by waiver or estoppel (Heller v Middagh Street Associates, 4 AD3d 332 [2004]; Ruiz v Chwatt Associates, 247 AD2d 308 [1998]), nothing in the rent regulation laws prohibits a landlord from granting rent stabilization rights by express contract (West 56th & 57th Street Corp. v Pearl, NYLJ, Nov. 30, 1993, at 33, col 2 [Sup.Ct., N.Y.Co., Mazzarelli, J.], app dismissed 242 AD2d 508 [1997]; see Kent v Bedford Apartments Co., supra; cf. 220 West 98 Realty v New York Province of the Society of Jesus, NYLJ, Nov. 6, 2000, at 24, col 6 [App Term, 1st Dept], aff'd 291 AD2d 13 [2002]). The cases cited by the motion court relying upon the mere attachment of rent stabilization forms or riders to the lease or inadvertent registration of the apartment as rent stabilized are not controlling. Since here landlord settled the previous nonpayment pursuant to a stipulation expressly granting tenant full rent stabilization rights, the petition incorrectly alleges that the subject premises is not subject to rent regulation.

This constitutes the decision and order of the court.
Decision Date: July 29, 2005