Huston v Kal Realty Partners LLC

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Huston v Kal Realty Partners LLC 2012 NY Slip Op 32074(U) July 16, 2012 Sup Ct, NY County Docket Number: 109546/10 Judge: Paul Wooten 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. [* 1] SCANNED ON 81712012 , . . . Plaintiff, INDEX NQ. eave to sdw&an I I pursuant to C,PLR 3025(b), to serve an amended answer to Ben HustOn's (plaintiff) complaint I , \ I 30, 2010, d >- 1 > + - - . -' Plaihtiff, is Ihexurrent tenant at 28d Grand Street, Apart I, A} apartment). Defendant i I 1 4 i e owner and landlord of 281 Grgnd Gtreet, New York, NY (the iff sriginglly occupied apartment 5F pursuant to a written lease agreement 09. Thp lease was for a term of biohteen months, from June 1, 2009 through November 30, 2010 (see Order to Show Cause, exhibit A). The monthly rent for the entire lease term was $4,200.00 (id.). 1 The previous owner of the building, Fran Realty Corp. (1975-2007), converted the upper floors to aces -The p-rlormnq- dld not recognizemy qf !&?e as rent r,ggslate:-d--FranRealty- use and Community Renewal never rpgisterqd any of its residential apartments with the Division Page 1 of' 10 L , . . .. . I [* 2] nt on or about 1 - obtain #I ampnded Certificate of Occupancy; building we re materially and substantially changed to entitle the landlord tQ charge a first rent ; and (7) the subject building was substantiglly rehabilitated so as to remove it from rent regulation (id., exhibit D). No discovery has taken place on this action and Note of Issue has not been filed. Defendant now seeks leave to serve and file an amended answer, and to compel plaintiff to pay the use and occupancy that has accrued since the lease expired. In the - -- -_-- - - nonpayment prooeeding in Civil Coud defendantseeks r e 3 from August o f 2070 until the end Page 2 of 10 , \ - ~. [* 3] I Iptockeded, as such as thiS case 7 established lack of pldadings are devoi dant further states that a (see ~ u c i d o Mancuso, 4 v , * dant claims an amended pleading ohly needs to "fit within a cognizable legal theory g$ a cgpsq sf action or defense" (Raczok v I I Capasso, 32 Misc3d 1242[AJ, Op 5168O[U] [Sup Slip ings County 201 I]). Defendant asserts his proposed answer and six affirmative defe Th rudl L/ + t 3 3x1, $ -._._-- ._ .* )I I A e& this standard and have merit +I The qpartments in the buildipg were divided into pq\ryqseparateunits on ar ground 2000 or 2001, The tenant In apartment 5F starting in March 2001 paid a monthlv rent of $3,500 00 The subseauent . _ tenant- (who wasthe last tenant to FentttIE . Pecernber 20bl-paid a monthly rent 3 $3, rl.>*ll Page3of 10 [* 4] Hous. 8, Community Renewal, Off of Rdnf Admin, , 2 12 AD2d 250 [ 1st Dept 19951). munity RQhewal(DCHR) "first rent" Accordingly, pursuant to the Division first tenant agreed to pay. Defenddnt policy the landlord could legally char tgbilization Cqd claim$ that since Ren ),prqvidev that an apartment whiqh qualifies for first rent in excess of $2,OQ from regulation, the $3,500.00 in first rnent $F for a regulatioq exemption rerlt paid by a prior tengqt 1 (see Order to Show Cause). - .. - _"_ . - Defendant's second affirmative dt3fi$nSp in its prbposed answer relies on Rent * - _. . . .T. *.*---* - ,1, Stabilization Code 2529.11(r)(4), which n an apartment becomes vatant after June 19, 1997 with a legal rent ov8r $2, Apartment becomes deregulated. Defendants claim the'aparthent becam 1 ~ n tenants Friedman and Brown, WR 1 were paying $3,$00.00 in monthly rent, mo . Defendaqt's third affirmative defense in its proposed answer is similar to its,sesQnd proposed affirmative defense. Defendants assert that the apartment would be once again considered deregulated When tenant Vilga, who's rent was far in excess of $2,000,00 a month, moved out in 2009 (see Order .* to Show Cause, exhibit G, 7155-61). Defendant's fourth proposed affirmative defense asserts that defendant was entitled to charge a first rent to plaintiff because the outer dimension$ of the apartment were altered ,,-,+h+t ~ 1 Page 4 of I O I I [* 5] I I defendant avers it Cause, exhibit C, 73 $ mqde clear that the Supreme Court during a the Appellate Division, \ IAndlard/tenant action capnot allow a tenant to occupy the subject prQmiseswithout payment during the pendency of the action (see MA43 Assoc. v Dayan, 169 AD2d 422 [ l s t Dept 1991I). Plaintiff asserts the defehses brought forward by defendant in its proposed amended er are devoid of merit and should be disallowed. Plirintiff claims that the 2001 project " I completed by the former owner, in which defendant claims to have split the larger apartments ~ ~ . . . . _ ~ ~ . - __ _ - _ _ on *thesecond throughLfifth floors of the .building did not constitute a substantial rehabilitation. 4 r i I3 Page5of 10 __ + -. . [* 6] is meaningleSs in this case. If rent regutatiphs were not complied asserts defendant cannst prove that apartments have been properly I " . deregulated by legal rents being over $2,000.00 (&e id., 77 25-27). Plaintiff attempt$ to furlher detract from the argument that a first rerit charged in excess of $2,000.00 was legal irnd could be used as the legal basis for deregulatiQnby claiming that no Notice of Initial Registration was serve-cPin-coKectionwith the-pigmises Gitil-Novemter 9, 20'll-(see id., 7731:32)T---T Page6 of 10 ._ . . [* 7] of courqe, be freely given"]) The First Depqdment &I$ "csnsis[ently held, however, that in an n effort tp conserve judicial reswrces, an examination of'the proposed amendment is warranted . . . " (Ancrurn, 301 AD2d at 475; Thompson v CQoper, 24 AD3d 203, 205 "Leave will be denied where the proposed pleading fail [Ist Dept. 20051). state a cause of action, or is palpably insufficierlt as a matter of law (Thompsap, 24 AD3d at 205; see Ancrurn, 301 AD2d at __* I f -. -+ -.. - $ A d - 475;-DaVis&-DaVis-v 'MWson, 286 AD2d 584,585_/73t, Page7of 10 I - _. _ . I _ . _- [* 8] I d#rs., 173 AD2d 210, 210'[ 1 I &$ition plaintiff dpe$ t)d dlovant cgse .law arrQ rein acfion (see Seda, 181 Ap2d 469 at 470 ["in the absence of meanirlgful discovery plaintiff has demonstrated no prejudi~e"]).As such, defendant's motion seeking to serve ae arqended answer is granted. Defendant also seeks an order direct; intiff to pay use and occupancy for the Page 8 of 10 [* 9] [I$\ 19841. Use anb p Dept - - sh$ll be deemed sed@dup0 &der with Ndtice of Entry ' I thereof; and if is further, ORpERED that plaintiff i directed tb pay defendgnt use and occupancy for the subject s apartment in the amount gf $4,200 00 a month, Beginning from November 30, 2010 and g though out the pendency of thi I p - tigation; and it is further, / . totserve a copy of this Order with Notice of Entry ORDERED that defendant is dire phintiff and ttie-ClerL8 hSCourth<X , > 3i?ecFc toeite r j u d$m &nFaccordingI y ; a Td ' r l \ Page 9 of 10 [* 10]

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