Sandlow v 305 Riverside Corp.

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Sandlow v 305 Riverside Corp. 2012 NY Slip Op 30788(U) March 26, 2012 Sup Ct, NY County Docket Number: 106025/11 Judge: Joan M. Kenney 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. SCANNED ON 312912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: JOAN M, E N N ~ PART Justice -. Index Number : 106025/2011 SANDLOW, THOMAS VS. 305 RIVERSIDE SEQUENCE NUMBER : 001 SUMMARY JUDGMENT /. I 6///& ~T/w2 1. CHECK O W : J.S.C ..................................................................... 0 CASE MSPQ5ED 2. CHECK AS ~ ~ P P ~ O P I Y R T E ! ........................... 0 ~ IS: 0ORANTED ~ ~ 0 ~ 1 3. C H W K IF A P h Q F h A T E ............. lw.l..~r.il.....r ..rrw,..,...,r. D DENIED I P O N - F I N A L DlSPOSlTtOh . GJ GRAWEP IN PART nSWTQRPEA *@MMME).IT PTHE DReFl! [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 _ - _ _ _ _ _ _ l l l _ _ _ _ _ _ l _ - _ I - - - - - - - - - - - - - -X - THOMAS SANDLOW, Plaintiff, DECISION, ORDER & JUDGMENT Index No.: 106025/11 -against305 RIVERSIDE CORP. a/k/a 3 0 5 RIVERSIDE DR. C O R P O m T I O N , Defendants. ................................... JOAN M. KENNEY, J.: -X Defendant moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff cross-moves, pursuant to CPLR 3212, for partial summary judgment finding that plaintiff is the rent-stabilized tenant of a rent-stabilized apartment. FACTUAL BACKGROUND This action involves a landlord-tenant dispute in which t h e plaintiff tenant seeks: (1) a declaration that: his apartment is rent-stabilized and that the monthly rents collected by defendant landlord since February constitute an overcharge; 1, 2 0 0 5 are erroneous, unlawful and/or (2) injunctive r e l i e f directing landlord to r e g i s t e r the premises as a rent-stabilized unit with the New York State Division of Housing and Community Renewal (DHCR) at the l a w f u l rent; ( 3 ) all overcharges p l u s treble damages f o r a11 wilful overcharges ; and ( 4 ) attorney s fees . This litigation,resultsfrom t h e ruling of the C o u r t of Appeals in Roberts v Tishman Speyer Properties, L.P. (13 NY3d 2 7 0 [ Z O O 9 1 ) , which held, in sum and substance, that properties that receive 15-51 tax benefits could n o t deregulate apartments therein as long as s u c h [* 3] t a x benefits a r e in effect. Tenant is challenging the regulatory status of the apartment known as 7A, 3 0 5 Riverside D r i v e , New York, N e w York 10025. In particular, tenant claims that the s u b j e c t apartment is rent= v stabilized, based upon landlord's receipt of 5-51 tax benefits f during the time in which tenant f i r s t took occupancy o the unit. It is tenant's position that, d e s p i t e t h e ruling in the Roberts case, landlord has r e f u s e d to abide by t h e Court's decision. Defendant landlord maintains that the present: action is timeb a r r e d , being subject to t h e four=year statutory period mandated f o r such actions by section 2 1 3 - a of the CPLR. Moreover, landlord a a s e r t s that, even if t h e present action were not time-barred, there has been no rent overcharge, stating t h a t tenant may go back only four y e a r s to determine t h e correct rent, which, in the instant matter, makes his monthly rent correct. Lastly, since landlord maintains that there was no rent overcharge, tenant would n o t be entitled to attorney's f e e s . In s u p p o r t of his cross motion, and in opposition to landlord's motion, tenant contends that landlord does not dispute any of the facts presented in t h e complaint, and landlord admits t h a t it receives J-51 t a x benefits. Further, t h e lease fails to contain the r e q u i r e d J-51 notice that the apartment remains s u b j e c t to rent stabilization despite t h e expiration of the J-51 t a x p e r i o d . Motion, Ex. C (lease). I n opposition to tenant's cross motion, and in r e p l y , landlord 2 [* 4] concedes that Roberrs is retroactive in its applicability and does n o t oppose tenant s request that t h e apartment be found to be rent- stabilized. However, landlord s t i l l contends that the action is time-barred by the application of CPLR 213-a, since t h e f i r s t rent overcharge occurred more than four years prior to t e n a n t filing t h e instant action. Landlord argues t h a t tenant has f a i l e d t o produce any evidence a s to what true base r e n t should be, which, according to the landlord, i s f o u r y e a r s f r o m t h e d a t e of filing the current action: May 2007. 2005. Tenant is claiming a rent overcharge from February 1 , Specificglly, paragraph 40 of the complaint states: Plaintiff respectfully requests t h a t t h i s Court declare t h a t t h e aforementioned monthly r e n t s charged and collected by Defendant: since F e b r u a r y 1, 2005, o r four years p r i o r t o the commencement of t h i s action, are erroneous, unlawful and/or constitute an overcharge. I The main thrust of landlord s argument i s t h a t t h e calculation of t h e base rent must be based on t h e r e n t in e f f e c t four y e a r s p r i o r to t h e f i l i n g of t h e present action, not February of 2005. Additionally, landlord says that: because t e n a n t has affirmatively s t a t e d that this is not an action f o r rent overcharges, he is not entitled to t r e b l e damages or attorney s fees. The c o u r t notes that discovery has yet: to t a k e place in this matter. DISCUSSION nThe proponent of a summary judgment motion must make a prima 3 [* 5] facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted] S a n t i a g o v F i l s t e i n , 3 5 AD3d 184, 185-186 ( l BDept 2 0 0 6 ) . t . I The b u r d e n then shifts to the motion s opponent to present evidentiary f a c t s in admissible form sufficient to raise a genuine, t r i a b l e issue of fact, Mazurek v Metropolitan Museum of Art, 27 aD3d 2 2 7 , see Zuckerrnan v C i t y of N e w Y o r k , 49 NY2d 5 5 7 , 228 (1 Dept 2 0 0 6 ) ; 562 (1980). If t h e r e is any doubt as to the existence of a t r i a b l e fact, the motion f o r summary judgment must be denied. Extruders, Inc. v Ceppos, 46 See Rotuha NY2d 2 2 3 , 231 (1978). At t h e outset, the court r e j e c t s landlord s claim that t h e suit is barred by the four-year statute of limitations mandated far rent overcharge claims u n d e r CPLR 213-a. CPLR 213-a states: An action an a residential rent overcharge shall be commenced within four years of t h e f i r s t overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the fouryear p e r i o d immediately preceding t h e commencement of the action. I As recently stated by the Appellate Division in Gersten v Avenue LLC (88 AD3d challenge to a r e n t 189, 1 9 9 [ l a tDept 56 7th 2011]), in determining a claim based on the statute of overcharge limitations, a tenant should be able to challenge the deregulated 4 [* 6] s t a t u s of an apartment at any time during t h e tenancy. Indeed, courts have uniformly held that landlords must prove the change in an apartment s status f r o m rent-stabilized to unregulated even beyond the four-year statute of limitations f o r r e n t overcharge claims [citing E a s t West Renovating Co. v New York S t a t e D i v i s i o n of Housing & Community R e n e w a l , 16 ~ D 3 d166 ( l S t Dept 2 0 0 5 ) . Therefore, this action is not time-barred f o r the determination as t o t h e regulated s t a t u s of the apartment. Since landlord has admitted t h a t t h e apartment is rent-stabilized, he has rendered moot any question as to the apartment s status. However, the issue as to the calculation of the c o r r e c t stabilized rent remains to be determined. F o r the purpose of calculating t h e c o r r e c t rent, tenant s r e n t overcharge claim is m b j e c t t o a four-year statute of limitations (see Rent Stabilization Law of 1969 , . . ) . The Rent Regulation Reform Act of 1997 clarified and reinforced the four-year atatute of limitations applicable to r e n t overcharge claims . . . by limiting examination of t h e r e n t a l history of housing accommodations p r i o r to the four-year p e r i o d preceding t h e filing of an overcharge complaint [internal citations omitted] . Matter of Cintron v Calogero, 15 NY3d 347, 353 (2010). Not only has tenant has proffered no reason why the court should outside the four-year look- k p e r i o d bac ( 72A Realty Associates v L u c a s , 3 2 Misc 3d 47 [App Term, lst Dept 20111), b u t , as indicated in the complaint, tenant seeks a rent overcharge determination either from February 1, 2 0 0 5 o r t h e f o u r years p r i o r to instituting this action. Since tenant is willing to limit the 5 [* 7] inquiry into his damages f o r an alleged rent overcharge to the f o u r years preceding t h e commencement of this action, the court concludes that a determination of t h e lawful rent and any overcharge is limited to the four years p r i o r to t h e institution of the instant lawsuit. 7 8 / 7 9 York Associates v R a n d , 180 Misc 2d 316 (App T e r m , l s t Dept 1999). However, in o r d e r to determine t h e correct rent and whether there has been any w i l f u l rent overcharge, entitling tenant to b o t h t r e b l e damages and attorney s f e e s , evidence must be presented on these issues. See Matter of O b i o r a v N e w York S t a t e D i v i s i o n of Housing a n d Community R e n e w a l , 7 7 AD3d 7 5 5 (2d Dept 2010) ; M a t t e r of Graham Court O w n e r s Corp. v Division of Housing and Community R e n e w a l , 71 AD3d 515 ( l a Dept 2 0 1 0 ) . t The o n l y evidence of the rent charged has been provided by landlord, consisting of a copy of the lease f o r the period February 1, 2005 through January 31, 2007 (Motion, Ex, C . ) , and its annual apartment registrations for t h e years 2007 through 2011, which indicates a different, albeit unchanging, rent from the rent a p p e a r i n g in the l e a s e , with no evidence as to how that difference was calculated. Motion, Ex. D. Even though t e n a n t has not provided any evidence in admissible form to dispute these amounts, defendant has not met ita burden of demonstrating t h e method of calculation used and whether such calculation conforms t o r e n t stabilization requirements. Moreover, no discovery has yet taken p l a c e in this matter. 6 -. .. [* 8] And it ORDEREP is f u r t h e r that the remainder of plaintiff's cross motion is denied; and it is f u r t h e r ORDERED that t h e p a r t i e s appear for their compliance conference on May 24, 2 0 1 2 at 1 O : O O a.m. as previously directed. Dated: March 2 6 , 2 0 1 2 ENTER : - w'" . Joan M * Kenney, J.S C . 7

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