8 Beach St. Realty Inc. v Blagg

[*1] 8 Beach St. Realty Inc. v Blagg 2015 NY Slip Op 51313(U) Decided on September 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
14-424

8 Beach Street Realty Inc., Petitioner-Landlord-Respondent, -

against

Max Blagg, Respondent-Tenant-Appellant, - and - Anita Madeira, "John Doe" and "Jane Doe," Respondents.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), dated March 17, 2014, which granted landlord's motion for summary judgment of possession in a holdover summary proceeding, and denied tenant's cross motion for summary judgment dismissing the petition and for partial summary judgment on the counterclaims.

Per Curiam.

Order (Laurie L. Lau, J.), dated March 17, 2014, modified, landlord's motion denied, cross motion granted to the extent of awarding tenant summary judgment dismissing the petition, tenant's rent overcharge counterclaim severed, and matter remanded for a determination of tenant's claim for attorneys' fees; as modified, order affirmed, with $10 costs

In settlement of a prior (2003) holdover summary proceeding seeking possession of a rent stabilized apartment premises on owner use grounds, tenant-appellant signed a stipulation, so-ordered by Civil Court, by which he received a ten-year unregulated lease agreement with one five-year renewal option. The stipulation provided, in relevant part, that tenant "waive[d] all rights under the Rent Stabilization Law ... for protection as [a] rent stabilized tenant[] and agree[d] not to file any claims with ...any ... agency and/or ...court...raising a claim to be caused [sic] by any rent regulation."

Some ten years later, upon tenant's failure to timely exercise the renewal option set forth in the stipulation, landlord commenced the underlying holdover proceeding, with a petition alleging that the premises are unregulated. The parties cross-moved for summary judgment [*2]below, disputing the enforceability of the 2003 stipulation. Civil Court granted landlord the possessory remedy it sought. We now modify and award tenant summary judgment dismissing the petition.

"[A]n agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory protection is unenforceable as a matter of public policy, even if it benefits the tenant" (Drucker v Mauro, 30 AD3d 37, 38 [2006], lv dismissed 7 NY3d 844 [2006]; see Rent Stabilization Code [9 NYCRR] § 2520.13). The stipulation here at issue, executed to forestall an eviction on owner use grounds, is, on its face, one to "waive the benefit" of rent stabilization, and is therefore void (see Riverside Syndicate, Inc. v Munroe, 10 NY3d 18, 22 [2008]). Deregulation of apartments "is available only through statutorily specified means" (see 390 W. End Assoc. v Harel, 298 AD2d 11, 15 [2002]), and "not by private compact as was attempted here — a means expressly forbidden" (Draper v Georgia Props., Inc., 94 NY2d 809, 811 [1999]).

Nor has landlord raised any triable issue that the subject apartment was otherwise properly deregulated.

We remand the matter to Civil Court to determine whether tenant is entitled to recover attorneys' fees and, if so, the reasonable amount of such fees.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 11, 2015