Tribeca M. Corp. v Buchloh

[*1] Tribeca M. Corp. v Buchloh 2005 NY Slip Op 51262(U) Decided on July 29, 2005 Civil Court Of The City Of New York, New York County Capella, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2005
Civil Court of the City of New York, New York County

TRIBECA M. CORP., Petitioner-Landlord,

against

BENJAMIN BUCHLOH, ET. AL., Respondents-Tenants,



81964/02

Joseph E. Capella, J.

The instant action is a consolidation of seven summary holdover proceedings, all predicated upon the termination of a month to month tenancy, and the petitioner's allegation that the subject building is exempt from rent stabilization due to substantial rehabilitation. (9 N.Y.C.R.R. § 2520.11(e)) The building originally provided commercial loft space; however, according to the petitioner, in the late 1970s the prior landlord converted said commercial space to residential apartments. On September 4, 1980, a certificate of occupancy for joint living and working quarters for artists was issued for 12 of the current 16 units; the four additional units appear to consist of four "C-line" apartments created in 1993. The petitioner seeks summary judgment against those respondents occupying the four "C-line" apartments [FN1] on the theory that they cannot be rent stabilized tenants because they took occupancy in the mid-1990s, years after the "window period" for coverage under Article 7C of the Multiple Dwelling Law ("Loft Law") closed. (Wolinsky v. Kee, 2 NY3d 487, 779 NYS2d 812 [2004].) In opposition, the respondents argue that there should be a limit to the number of summary judgment motions which the petitioner can make, and, as this is the petitioner's third, that limit has been reached and the court should, in its discretion, deny the motion accordingly. The respondents also argue that the theory upon which the petitioner is currently pursing this summary judgment motion was not set forth in the pleadings, and the failure to amend the petition accordingly is fatal to this new claim. In addition, the respondents also cross move for summary judgment and dismissal of the proceeding under the premise that no new evidence exists to support the petitioner's claim of substantial rehabilitation.

Although CPLR 3212 has no stated restriction, multiple summary judgment motions in the same [*2]action are discouraged in the absence of newly discovered evidence or where a new and untested legal theory is permitted to be added by amendment.[FN2] (Armstrong v. Peat, 150 AD2d 189, 540 NYS2d 799 [1st Dept. 1989].) Parties may not make successive fragmentary attacks, but must assert all available grounds when moving for summary judgment, and there can be no reservation of any issue to be used upon any subsequent motion for summary judgment. (Levitz v. Robbins, 17 AD2d 801, 232 NYS2d 769 [1st Dept. 1962].) On December 26, 2002, the petitioner's initial motion for summary judgment was decided by the Hon. Larry S. Schachner, who found, inter alia, that issues of fact exist as to whether the subject building, including the "C-line" apartments, qualify as substantial rehabilitation under 9 N.Y.C.R.R. § 2520.11(e) and the Department of Housing and Community Renewal ("DHCR") operational bulletin 95-2.[FN3] In his decision, Judge Schachner stated that the "respondents have set forth issues of fact as to whether the work performed amounted to substantial rehabilitation, and if so who performed and or [sic] paid for the work."

The denial of the petitioner's original motion for summary judgment established the law of this case and requires denial of any subsequent summary judgment motion on any cause of action or defense originally included in the pleadings, whether raised in the initial motion or not, (Levitz v. Robbins, 17 AD2d 801, supra ), unless there is newly discovered evidence or where a new and untested legal theory is permitted to be added by amendment. (Armstrong v. Peat, 150 AD2d 189, supra .) As the respondents correctly point out, the theory upon which the petitioner is currently pursing this summary judgment motion was not set forth in the pleadings, and the failure to amend the petition accordingly is fatal to said motion. Even so, Wolinsky, (2 NY3d 487, supra ), and the Loft Law are not applicable to the instant proceeding. In Wolinsky, the Court of Appeals determined that the Loft Law established a fixed window period (i.e., April 1, 1980 through December 1, 1981) for eligibility, (see Multiple Dwelling Law § 281[1]), and as the units in that case were first used for residential purposes in 1997, almost two decades after the expiration of the window period, said units were not covered by the Loft Law. For our purposes, however, and setting aside the fact that the subject four "C-line" apartments appear to have been created after the fixed window period, the Loft Law only applies to buildings or portions thereof that were occupied for manufacturing, commercial, or warehouse purposes and lack a residential certificate of occupancy.[FN4] (Multiple Dwelling Law § 281[1].) During the relevant window period, the subject building had a residential certificate of occupancy, and hence could not come within the purview of the Loft Law. Therefore, the petitioner's motion for summary judgment is denied.

Unlike the Loft Law, there is no window period or base date for rent stabilization, (Wilson v. [*3]One, 123 AD2d 198, 510 NYS2d 603 [1st Dept. 1987]; 109 Graham v. Espina, N.Y.L.J., May 17, 1988, pg. 15, col. 2 [App. Term, 2nd & 11th Jud. Dist.]), and so the petitioner must still establish an exemption from same. The respondents' cross motion seeks summary judgment against the petitioner's alleged substantial rehabilitation exemption; however, the court must first determine what newly discovered evidence warrants said request. (Armstrong v. Peat, 150 AD2d 189, supra .) Except for a copy of an incomplete EBT transcript [FN5] dated October 7, 2004, and two memos from the managing agent's office dated May 21, 1992 and June 1, 1992, all of the evidence now before this court was already reviewed by the Hon. Larry S. Schachner in his earlier denial of summary judgment on December 26, 2002. In order to qualify for substantial rehabilitation, (9 N.Y.C.R.R. § 2520.11(e)), the DHCR operational bulletin 95-2 requires that 75% of the building-wide and apartment systems [FN6] must have been completely replaced with new systems, including all ceilings, flooring and plasterboard in the common areas. According to an earlier affidavit dated November 26, 2002, by Joseph Masino, an employee of the managing agent for the past 25 years, the subject building has "been substantially renovated on not one, but two, occasions since 1974." His employer has only owned the building since the early 1990s. Mr. Masino further states that it was substantially rehabilitated when it was converted from purely commercial use to residential use in the 1970s, and once again in 1993 with the creation of the entire C-line apartments, which he was directly involved in. The memo dated May 21, 1992, is from Arnold Goldstein to Joseph Masino stating, inter alia, that the prior owner did not rent the four C-line apartments "because of the [certificate of occupancy] problem," and asked Mr. Masino to investigate the present condition of said apartments. In his reply memo dated June 1, 1992, Mr. Masino states that there are eight vacant apartments and describes five of them as follows:

"APARTMENT 4C

Subfloors installed. Approximately 20% of finished floor has been installed.

Framing is complete, sheetrock 90% complete. There is a large platform built

at the foot of the stairs (refer to drawing). Rough electric is complete.

BATHROOM - Rough plumbing is 90% complete, framing is complete, no

sheetrock has been installed. No flooring has been done, in fact, there are

some holes opened to the 3rd floor. A through-the-wall AC sleeve has been

installed but must still be sealed with brickwork on inside wall.

MECHANICAL ROOM - Drain line only. No rough plumbing, no framing,

some rough electric.

APARTMENT 5C

Subfloor 90% installed. No finished flooring. Sheetrock 90% installed

with 75% of this taped. BATHROOM - Rough plumbing 90% complete, [*4]

rough electric 90% complete, framing 100% complete, no sheetrock installed.

LAUNDRY/MECHANICAL ROOM - Rough plumbing appears complete,

sheetrock 50% installed. No electric work done. KITCHEN AREA - Rough

plumbing and rough electric appear completed.

APARTMENT 3C

Rough plumbing 75% complete, rough electric 80% complete. Framing

and sheetrock 80%. Subflooring is 100% complete with wood plank

finished floor very poorly installed over 80%.

APARTMENT 2C

Ceiling is sheetrocked and taped but needs to be primed and painted.

KITCHEN AREA - Rough plumbing and electric are complete and a

subfloor has been installed. LAUNDRY/MECHANICAL ROOM - Rough

plumbing and electric are complete. There is no machinery (hot water tank,

heating unit) and no vent work done in this area. BATHROOM - Rough

plumbing and rough electric are complete, sheetrock is complete and ready

for taping, bathtub has been installed.

APARTMENT 5D

FRONT - Has finished floor, ceiling has some leak damage. All sheetrock

on ceiling needs taping, electric appears complete and is installed outside

the walls in conduit. KITCHEN AREA - Rough plumbing and rough electric

are complete. The floor is tiled and the gas line has been installed.

LAUNDRY/MECHANICAL ROOM - Rough plumbing is approximately

80% complete, rough electric is complete. The walls are framed and some

sheetrock is up. There is no hot water tank. The bath area has the ceiling

tiled, only. The partition between these 2 rooms has [sic] been removed.

REAR - Has bare concrete floor. All electric is outside wall in conduit.

BATHROOM - Rough plumbing, rough electric, and sheetrock are complete.

There is no shower stall, no tub, and no shower body installed. Much of the

ceiling is heavily leak damaged [sic] and the wiring to the electric panel

appears incomplete."

The C-line apartments as described by Mr. Masino appear to entail significant, possibly substantial, work. The other four apartments (i.e., 5B, 3A, and 3D) described by Mr. Masino do not appear to require as extensive work as those described above. The incomplete EBT transcript of Mr. Masino does not shed any further light, because those portions which appear to be damaging to the petitioner's case (i.e., page 41, line 7 down: "Did you replace the plumbing and electric building-wide? No. Did you replace the windows in the building, building wide? Not that I recall.") are actually consistent with the fact that he only has first hand knowledge of the substantial renovations to the C-line apartments. In viewing this newly discovered evidence in a light most favorable to the petitioner, (O'Sullivan v. Presbyterian Hosp., 217 AD2d 98, 634 NYS2d 101 [1st Dept. 1995]), an issue of fact still exists as to whether the subject building, including the "C-line" apartments, qualify as substantial rehabilitation under 9 N.Y.C.R.R. § 2520.11(e) and DHCR operational bulletin 95-2. (Esteve v. [*5]Abad, 271 A.D. 725, 68 NYS2d 322 [1st Dept. 1947].) Therefore, the respondents' cross motion is also denied, and the instant proceeding is adjourned to August 31, 2005, at 9:30 a.m., part G, room 823, for settlement or trial.

This constitutes the decision and order of this court, copies of which are being mailed by the Court to the parties' respective attorneys.

________________________________________

Date Judge, Housing Court Footnotes

Footnote 1: The four "C-line" apartments are: (a) apt. 5-C, Benjamin Buchloh, index # 81964/02; (b) apt. 2-C, Kevin Clarke and Janet Hasper, index # 81965/02; (c) apt. 4-C, David Wilbourne and Krista Williams, index # 81966/02; (d) apt. 3-C, Alan McDowell, index # 81967/02.

Footnote 2: Leave to amend to include a cause of action/defense and summary judgment based on that cause of action/defense may be sought in one motion rather than two. (Armstrong v. Peat, 150 AD2d 189, supra .)

Footnote 3: DHCR is authorized to effectuate standards in determining substantial rehabilitation. (9 § N.Y.C.R.R. 2520.11(e))

Footnote 4: There was no residential certificate of occupancy in Wolinsky. (2 NY3d 487, supra .)

Footnote 5: This is an EBT transcript of Joseph Masino, an employee of the managing agent.

Footnote 6: According to operational bulletin 95-2, building wide and apartment systems include plumbing, heating, gas supply, electrical wiring, intercoms, windows, roof, elevators, incinerators/waste compactors, fire escapes, interior stairways, kitchens, bathrooms, floors, ceiling and wall surfaces, pointing/exterior surface repair as needed, and all doors and frames.