Alphonse Hotel Corp. v Roseboom

[*1] Alphonse Hotel Corp. v Roseboom 2015 NY Slip Op 50006(U) Decided on January 6, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
14-166

Alphonse Hotel Corp. d/b/a Hotel Carter, Petitioner-Landlord-Appellant,

against

Destiny Roseboom, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), entered on or about March 13, 2013, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Cheryl J. Gonzales, J.), entered on or about March 13, 2013, affirmed, with $25 costs.

We agree, essentially for reasons stated by the trial court, that landlord failed to meet its evidentiary burden to establish that the "rent charged" for tenant's hotel unit exceeded $350 per month or $88 per week on the statutory base date (May 31, 1968) and that, in result, the unit is exempt from rent stabilization coverage (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-506 [a]; Rent Stabilization Code [9 NYCRR] § 2520.11[g]; see Alphonse Hotel Corp. v Fusco, 189 Misc 2d 219 [2001]). Landlord failed to present any rent records or other direct proof tending to establish the rent charged for tenant's hotel unit, or any similarly situated hotel unit, on the statutory base date (see Chelsea 23rd St. Corp. v Nolan, 2001 NY Slip Op 40301[U] [App Term, 1st Dept 2001]), and its general manager candidly admitted that landlord has no records dating back to that time. It was also within the province of the trial court, as fact-finder, to reject as "speculative" the opinion evidence and report presented by landlord's expert, who sought to establish the rent charged on the base date using two separate theoretical and unreliable methodologies (see generally Chadbourne & Parke, LLP v HGK Asset Mgt., Inc., 295 AD2d 208, 209 [2002]), which, as the court aptly noted, were based largely on "data of hotels in the same area, starting nineteen years after the threshold date."

Landlord's claims of error relating to the conduct of the trial are lacking in merit. The court properly took judicial notice of information contained on the United States Labor [*2]Department's official website (see CPLR 4511[b]; Mendoza v Mortlen Realty Group, 88 AD3d 611, 611 [2011]; see also Coleman v Dretke, 409 F3d 665, 667 [5th Cir 2005]). In any event, any error in this regard does not warrant reversal in the circumstances of this case and in view of the evidentiary shortcomings of landlord's case-in-chief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur

Decision Date: January 06, 2015