303 W. 122nd St., HDFC v Hussein

[*1] 303 W. 122nd St., HDFC v Hussein 2015 NY Slip Op 50131(U) Decided on February 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570123/14

303 West 122nd Street, HDFC, Petitioner-Landlord-Appellant, -

against

Lavord W. Hussein, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about March 19, 2013, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Jack Stoller, J.), entered on or about March 19, 2013, reversed, without costs, and a new trial ordered.

The trial court's dismissal of the holdover petition, based upon its conclusion that the "extreme rent increase" reflected in the renewal lease offered by the HDFC cooperative landlord to the long-term, nonpurchasing tenant violated the "unconscionability doctrine," cannot be sustained. Tenant did not plead or otherwise raise an affirmative defense of unconscionability at any point during the proceedings below and, in considering the issue sua sponte upon the close of evidence, the court failed to comply with Real Property Law § 235-c(2), which provides that "when it is claimed or appears to the court that a lease or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making the determination." In this posture, and since the court made no findings as to whether the tenant's refusal to accept the renewal lease was otherwise justified, a new trial is required.

In directing a new trial, we express no view as to the ultimate outcome on the merits or the applicability or import of the Martin Act (General Business Law § 352-eeee) to the facts of this case.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 20, 2015