Duane Thomas LLC v Wallin

[*1] Duane Thomas LLC v Wallin 2006 NY Slip Op 50895(U) [12 Misc 3d 1154(A)] Decided on April 4, 2006 Supreme Court, New York County Kapnick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2006
Supreme Court, New York County

Duane Thomas LLC, Plaintiff,

against

Amy Wallin, Defendant.



113029/02

Barbara R. Kapnick, J.

Plaintiff Duane Thomas LLC, the owner of 137 Duane Street in lower Manhattan, an interim multiple dwelling registered with the New York City Loft Board, moves for an order granting partial summary judgment in its favor and against defendant Amy Wallin declaring that defendant is not a rent stabilized tenant and that plaintiff is entitled to a judgment awarding it possession of the subject space on the grounds that there are no genuine issues of material fact warranting a trial, or, alternatively, striking defendant Amy Wallin's jury demand.

Defendant cross-moves for an order pursuant to CPLR § 3212 granting her summary judgment on the grounds that she is a rent stabilized tenant under the Emergency Tenant Protection Act ("ETPA").

Plaintiff claims that a trial is not warranted in this case as a result of the recent decision by the Court of Appeals in Wolinsky v. Kee Yip Realty Corp., 2 NY3d 487 (2004), which plaintiff argues holds that the ETPA, and by extension the Rent Stabilization Law, cannot be extended to cover tenants living in lofts in lower Manhattan who did not move into their units until after the Loft Law window period had closed, and who are otherwise not protected by the Loft Law. See also, Gloveman Realty Corp. v. Jefferys, 18 AD3d 812 (2nd Dep't 2005). In short, plaintiff argues that the defendant is not a member of the class that Article 7-B and 7-C of the Multiple Dwelling Law were designed to protect and thus is not entitled to coverage under the Rent Stabilization Law.

Defendant argues that she is a rent-stabilized tenant pursuant to the ETPA and that plaintiff's reliance on Wolinksy is misplaced, since it merely holds that residential tenancies are not entitled to rent stabilization protection if they are illegal and incapable of being legalized. Here, however, a residential certificate of occupancy has been issued covering defendant's loft and residential occupancy is permitted by the applicable zoning regulation. See, e.g., First Flatiron v. Irizarry, N.Y.L.J. March 30, 2005, p. 17, col. 1 (Civ. Ct., NY Co.) which declined to extend the holding in Wolinsky "to a premises which could be made legal for residential use." Thus, defendant contends [*2]that Wolinsky does not apply.

As counsel for the plaintiff/landlord conceded during oral argument on this motion on the record on September 14, 2005, since the Wolinsky decision, "the argument you make depends on whether you represent landlords or whether you represent tenants."

It appears to this Court that the Court of Appeals specifically did not address the issue presented here of whether a loft unit that is not entitled to Loft Law protection but is otherwise capable of being legalized is entitled to the protections of the ETPA. See, Sasson v. Gissler, 2005 WL 3863698 (Civ. Ct., NY Co.)

In that regard, this Court agrees with the recent interpretation of this issue in 480-486 Broadway, LLC v. No Mystery Sound, Inc., 11 Misc 3d 1056(A) (Civ. Ct. NY Co. 2006) in which the Court (Scarpulla, J.) determined that "Wolinsky follows a line of cases that have held that rent stabilization protection under the ETPA can be afforded to premises that are not covered by the Loft Law, so long as the premises are capable of being legalized." See, e.g., Wilson v. One Ten Duane Street Realty Co., 123 AD2d 198 (1st Dep't 1987); Tan Holding Corp. v. Steward Wallace, 187 Misc 2d 687 (App. Term, 1st Dep't 2001); Miller v. Margab Realty LLC, 6 Misc 3d 1012(A) (Sup. Ct. NY Co. 2001).

Since defendant Amy Wallin has raised significant factual issues as to the nature of her tenancy at 137 Duane Street, this Court is precluded from awarding summary judgment to either the plaintiff or the defendant at this time. Despite numerous conferences and motions, the posture of this case is not significantly different from the record that was before the Appellate Division, First Department in June 2004 when they found that there were factual issues that could not yet be determined in this case "including whether the subject unit is covered by the Rent Stabilization Law." Duane Thomas v. Wallin, 8 AD3d 193, 193-194.

That portion of plaintiff's motion seeking, in the alternative, to strike defendant's jury demand is also denied, since the parties never entered into the "Proposed Lease" which contained the broad jury waiver clause referred to by plaintiff in its papers, and thus defendant cannot be bound that provision.

Moreover, the jury waiver provision in the prior lease dating back more than a decade provides only for a waiver of a jury trial in a summary proceeding, which this is not.

Accordingly, plaintiff's motion for summary judgment and to strike the defendant's jury demand, and defendant's cross-motion for summary judgment are denied in their entirety.

Counsel for both parties shall appear for oral argument on Motion Seq. No 011 in IA Part 12, 60 Centre Street, Room 341 on May 10, 2006 at 2:15 p.m.

This constitutes the decision and order of this Court.

Date: April , 2006____________________________

Barbara R. Kapnick

J.S.C.