143 E. 30th St. Corp. v Shankman

[*1] 143 E. 30th St. Corp. v Shankman 2005 NY Slip Op 51883(U) [10 Misc 3d 126(A)] Decided on November 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: NOVEMBER 21, 2005 FEBRUARY 2004 TERM Suarez, P.J., McCooe, Davis, JJ.


143 East 30th Street Corporation, Petitioner-Landlord-Respondent, NY County Clerk's No. 570474/03 Calendar No. 04-029

against

Ronald Shankman, Respondent Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court, New York County (Maria Milin, J.), entered on or about May 29, 2003 after a nonjury trial, which awarded landlord possession and a recovery of $6,646 in rent arrears and dismissed tenant's rent overcharge counterclaim in a nonpayment summary proceeding.

PER CURIAM:

Final judgment (Maria Milin, J.), entered on or about May 29, 2003, reversed and new trial ordered, with $30 costs to abide the event.

Landlord commenced this nonpayment summary proceeding in August 2002 to recover possession of unit A-5
in hotel premises known as the Murray Hill Inn, located at 143 East 30th Street, in Manhattan. Tenant answered, interposing a counterclaim seeking rent overcharges dating back to the inception of his tenancy in February 2000. The trial evidence established, and the court properly determined, that the developmentally disabled tenant qualified as a "permanent tenant" by reason of his continuous occupancy of the building premises as a primary residence for a period exceeding the six-month statutory threshold (see Rent Stabilization Code [9 NYCRR] 2520.6 [j]), and this despite what the trial court described as a "pattern . . .whereby [tenant] was moved from room to room at the Building".

The court erred, however, in concluding that landlord was entitled to recover a "first rent" with respect to unit A-5, the most recent unit occupied by tenant. Landlord clearly failed to carry its burden to establish that unit A-5 was not subject to rent stabilization coverage (see Alphonse Hotel Corp. v Fusco, 189 Misc 2d 219 [2001]; see also East West Renovating Co. v DHCR, 16 AD3d 166 [2005]). Nor may the landlord properly reap the benefit of tenant's occupancy of various hotel units alleged to be unregulated so as to avoid possible overcharge liability, at least in these circumstances where the changes in tenant's occupancy status directly [*2]resulted from the relocation "pattern" found below to have been undertaken solely at the behest of the landlord (see generally Capene v Weaver, 6 NY2d 307 [1959]).

A new trial is thus warranted to determine the legal regulated rent due and the amount, if any, of a rent overcharge. Although the trial court, bound by the law of the case doctrine, restricted the overcharge determination solely to unit A-5, we are not similarly bound (see Grullon v City of New York, 297 AD2d 261, 268 [2002]), and conclude that tenant may also pursue an overcharge claim with respect to unit A-4, which he occupied for nearly 10 months and to which, as landlord itself puts it, tenant ultimately "may return". That landlord chose to forego its rent claim relating to unit A-4 provides no legal basis to deny tenant his right to prosecute a colorable overcharge claim relating to that unit.

This constitutes the decision and order of the court.
Decision Date: November 21, 2005