150 W. 82nd St. Realty Assoc., LLC v Linde

[*1] 150 W. 82nd St. Realty Assoc., LLC v Linde 2012 NY Slip Op 51753(U) Decided on September 11, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570999/11.

150 West 82nd Street Realty Assoc., LLC, Petitioner-Landlord-Appellant,

against

Richard K. Linde, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Kimberly Slade Moser, J.), dated November 4, 2011, which denied its cross motion for summary judgment on the holdover petition and granted tenant's motion to amend his answer and for leave to conduct discovery.

Per Curiam.

Order (Kimberly Slade Moser, J.), dated November 4, 2011, affirmed, with $10 costs.

This holdover proceeding is not susceptible to summary disposition, since the record raises but does not resolve several material triable issues, including whether the apartment at issue was exempt from rent stabilization because of a high rent vacancy that occurred in 1997, and whether landlord's expenditures for apartment improvements in the year prior to the high rent vacancy justified the $1,061 increase in the rent. Events beyond the four-year Statute of Limitations may be considered to determine whether the apartment is regulated (see Gersten v 56 7th Ave. LLC, 88 AD3d 189, 199-201 [2011]), but not "for the purpose of calculating an overcharge" (see East W. Renovating Co. v New York State Div. of Hous. and Community Renewal, 16 AD3d 166 [2005]), since tenant failed to set forth any colorable claim of fraud (cf. Matter of Grimm v. State of NY Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358, 364—365 [2010]).

Tenant demonstrated ample need for limited discovery relating to the apartment improvements that were the basis of the $1,061 rent increase. We have considered landlord's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012