Olsen v Stellar W. 110 LLC

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Olsen v Stellar W. 110 LLC 2012 NY Slip Op 30178(U) January 23, 2012 Sup Ct, NY County Docket Number: 107800/10 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 112612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: MARY OLSEN and ADAM H A R I D O P O L O S , Plaintiffs, -w- 107800/10 Motion Date: 08/30/11 Motion Seq. No.: STELLAR WEST 110 LLC, Defendant. 02 Motion Cal. No.: The following papers, numbered 1 to 4 were read on this motion to dismiss. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: 0 Yes NO JAN 25 2012 Upon the foregoing papers, NEW YORK CQUNTYCL K'SO I The court shall grant defendant's motion to E%srniE%e amended complaint in this action. By Order dated December 3 , 2010, this court denied defendant's pre-answer motion to dismiss plaintiff's original complaint. On November 24, 2010, plaintiffs served an amended complaint and defendant now moves to dismiss t h e amended pleading. Plaintiffs argue that defendant's c u r r e n t motion is precluded by the "single motion rule" of C P L R 3 2 1 1 (e). "The Check One: Check if appropriate: FINAL DISPOSITION 0 DO NOT POST I l NON-FINAL DISPOSITION REFERENCE SETTLEMJBMIT ORDEWJUDG. [* 2] purpose of CPLR 3211 ( e ) is to prevent the delay before answer that c o u l d result from a series of motions." H e ld v Kaufman, 91 NY2d 425, 430 (1998) (citations and internal quotations omitted). The defendant argues that plaintiffs' amendment of the complaint allows them to bring a subsequent motion against the amended pleading. See Shellev v Shellev, 180 Misc 2d 275, 2 8 2 (Sup Ct, West. County, 1999) ("because the original complaint was superseded . . . as a matter of law defendants were entitled to move for dismissal of the amended complaint after they were served with that pleading"). Plaintiffs counter that though the complaint was amended and added new causes of action the defendant now moves for dismissal on jurisdictional grounds on the same grounds as the earlier motion and therefore the single motion rule should bar the current application. &g B.S.L. One Owers C o r p . v Key Intern. Mfq . , Inc., 225 AD2d 643, 644 (2d Dept 1996) (where defendants previous challenge to causes of action in prior complaint was denied the defendants were barred by t h e "single motion rule" from challenging the same causes of action in an amended complaint in a second motion pursuant to CPLR 3211 [a1 1 - However, an exception to CPLR 3211 (e) applies here because t h e defendant is asserting that this court l a c k s subject matter jurisdiction to hear plaintiffs' claims of rent overcharge. As stated by the Court, "a court's lack of subject matter -2- [* 3] jurisdiction is not waivable, but may be raised at any stage of the action, and the court may, ex mer0 motu [on its own motion], at any time, when its attention is called to t h e f a c t s , refuse to proceed further and dismiss the action." Fry v VillasP of Tarrvtown, 89 NY2d 714, 718 (1997); see also Fisaxlcial Industry Requ lato w Authoritv, Inq. [FINRAI v Fiero, 10 NY3d 12, 17 (2008) (although the lack of subject matter jurisdiction pursuant to statute was not raised in the lower courts action dismissed by court because issue not waivable). On t h e prior motion to dismiss the parties did n o t raise the issue of subject matter jurisdiction but instead brought before the court the issue of forum selection. That is defendant sought dismissal on the grounds that plaintiffs' claim was for rent overcharge and therefore the choice of forum was permissive; that is t h e court should defer to DHCR in the first instance. Wolfiwch v Mailman, 182 AD2d 533 ( l ED e p t 1992) ("Supreme Court has t statutory jurisdiction to entertain an action to recover a rent overcharge"). However, now t h e defendant raises t h e issue of subject matter jurisdiction and there is no prejudice to plaintiffs in the court's consideration of defendant's application because subject matter jurisdiction is a threshold limitation on the court's power to grant relief, See 767 Third, A v e . LLC v Greble Firmer, LLP, 8 AD3d 75 ( l EDept 2004) t -3- ("single motion rule [* 4] [CPLR 3211 (e)] has no application where . . . [tlhere was no prejudice to plaintiff, and the matter was ripe f o r disposition. Neither the letter n o r the spirit of the single motion rule was violated" ) . As in FINRA, the court here finds that a statute divests this court of subject matter jurisdiction over plaintiffs' claims of r e n t overcharge. It is conceded here based upon the facts alleged in the complaint that the plaintiffs are t h e first rent stabilized tenants in the subject apartment. Binding authority interpreting Rent Stabilization Code (9 NYCRR) 5 2521.1 (a) (1) states that "there is no question that plaintiff was the apartment's first r e n t stabilized tenant. Accordingly, plaintiff cannot assert a claim for rent overcharge, but instead must file a fair market rent appeal with the Division of Housing and Community Renewal. Fami1 " (lst Dept 2001). , 287 AD2d 388 Plaintiffs' attempt to characterize their claims as seeking a declaration of the proper rent cannot escape the binding impact of precedent based upon the allegations in the complaint. &g Commercial Hotel, Inc. v White, 194 Misc 2d 26, 28 ( A p p Term, 2d Dept 2002) (statutory provision may not be evaded by the simple expediency of labeling what is essentially a rent action). Contrary to plaintiffs' arguments, neither Thornton v Baron, ( 5 N Y 3 d 175 [ZOOS]), Levinson v 390 West J3nd Associates, L.L.C,, -4- [* 5] ( 2 2 AD3d 397, 400 [ l a t Dept Z O O S ] ) nor Grimrn v State Div. of Housinq and Comrnunitv Renewal Office of Rent Admin. (15 NY3d 358, 364 [20101) supports their opposition to defendant's motion. In those cases the Courts found that because the landlords engaged in fraudulent schemes to circumvent t h e rent laws the court's had jurisdiction to direct DHCR to review the entire record to set the appropriate r e n t . None of the cases relied upon by plaintiff determined that this court has original jurisdiction over a fair market rent appeal such as that presented here. Accordingly, it is ORDERED that defendant's motion to dismiss for lac] of subject matter jurisdiction is GRANTED and the Clerk is directed to enter judgment DISMISSING the complaint. This is the decision and order of the court. Dated: January 2 3 , 2012 ENTER : FILED JAN 25 2M2 NEW YORK MXLERK'S OFFICE DEBRA A. JAMES -5-

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