CS 393 LLC v Eisenberg

[*1] CS 393 LLC v Eisenberg 2015 NY Slip Op 50972(U) Decided on June 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
571042/14

CS 393 LLC, Petitioner-Landlord-Appellant,

against

Steven Eisenberg Respondent-Tenant-Respondent, -and- "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Landlord, as limited by its brief, appeals from so much

of the order of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), entered on or about December 1, 2014, as denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Michelle D. Schreiber, J.), entered on or about December 1, 2014, insofar as appealed from, affirmed, with $10 costs.

This holdover proceeding is not ripe for summary disposition, since the record raises but does not resolve several material triable issues, including whether the apartment at issue is exempt from rent stabilization based on a high rent vacancy said to have occurred in 2003, and whether landlord's expenditures for apartment improvements during the year preceding the claimed high rent vacancy justified the increase of over $873 in the monthly rent (see 49 E. 74th St., LLC v Slater, 42 Misc 3d 134[A], 2014 NY Slip Op 50072[U] [App Term, 1st Dept 2014]). The evidentiary proof submitted by landlord, which did not contain the type of supporting documentation required by DHCR Policy Statement 90-10, did not eliminate all triable issues with respect to the extent and cost of the alleged apartment improvements made during the relevant period.

Contrary to landlord's claim, consideration of events beyond the four-year Statute of Limitations is permissible if done not for the purpose of calculating a rent overcharge but rather, as here, to determine whether an apartment is regulated (see East W. Renovating Co. v New York State Div. of Hous. & Community Renewal, 16 AD3d 166 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 30, 2015