Mysinski v Genuine Realty Corp.

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Mysinski v Genuine Realty Corp. 2016 NY Slip Op 32988(U) November 18, 2016 Supreme Court, New York County Docket Number: 158469/2013 Judge: Peter H. Moulton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/22/2016 10:46 AM NYSCEF DOC. NO. 33 INDEX NO. 158469/2013 RECEIVED NYSCEF: 11/22/2016 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PETER M. MOULTON SUPREME COURl' JUSTICE PRESENT: PART Justice Index Number : 158469/2013 MYSINSKI, JACEK cfD INDEX N O . - - - - MOTION DATE _ _ __ vs GENUINE REAL TY CORP. MOTION SEQ. NO. - - - Sequence Number : 002 PENDENTE LITE OTHER The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits ·Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). - - - - 1No(s). _ _ _ __ Upon the foregoing papers, It Is ordered that this motion is w 2 .... fl) ~ .., e 0 w ~ w u.. w a:: >..:.:. !!!. ..J ..J z u.. fl) ~o t; :i w a:: g; (!) wz a:: i !! 0 w fl) ..J _, c( ~ z~w :c 0 .... j:: a:: ~~ Dated: I/ /1 ~/t1- 1 I 1. CHECK ONE: ..................................................................... D CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST 1 of 5 RANTED IN PART 0 OTHER 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 50 -------------------------------------------------------------------){ JACEK MYSINSKI and PAUL FEARS Plaintiff, Index No.: 158469/2013 -against- GENUINE REALTY CORP. Defendant -------------------------------------------------------------------){ PETER H. MOULTON, J.S.C.: Defendant/Landlord (the "landlord") moves for an order directing plaintiffs/tenants (the "tenants") to pay to it (i) the rental rate in the last executed lease agreement of $2,000 per month for use and occupancy, pendente lite; and (ii) $70,000 for retroactive rent arrears and/or use and occupancy for 35 months (October 1, 2013 through August 1, 2016 ). Alternatively, the landlord seeks an order requiring the tenants to post a bond with the court for $70,000, all without prejudice to the rights and claims of the parties. The landlord cites case law holding that a tenant is not entitled to live rent free and cites to Real Property Law§ 220, which provides for a landlord's right to seek use and occupancy. The tenants oppose the motion, maintaining that it is the equivalent of a motion for summary judgment on the landlord's counterclaims or is the equivalent of a motion for a preliminary injunction, both of which lack the requisite proof. The tenants also assert that the landlord is guilty oflaches because the landlord waited for nearly three years after the action was commenced to make this motion. They further stress that the landlord has overcharged them in excess of $112, 000. 00 for 1 2 of 5 [* 3] the period of2009-2013. The landlord illegally deregulated the apartment, they assert, because the landlord did not make alleged improvements of $54,000 needed to deregulate the apartment. The tenants submit the affidavit of Christopher Leahy, the Vice President and Chief Estimator of Major Renovation Management, Inc., to demonstrate that the requisite improvements were not made. They further complain that the action has been delayed by the fact that the landlord fired two sets of attorneys and delayed compliance with discovery. The tenants do not dispute that a lease was signed for a monthly rent of $2,000 and do not dispute that they ceased paying rent in October, 2013. In reply, the landlord reiterates its arguments. It maintains that the motion is not one for summary judgment because it is pendente lite, without prejudice to the parties' claims and defenses. The landlord also asserts that the motion is not akin to a motion for an injunction. The landlord further disputes that it is guilty oflaches because the tenants have not demonstrated that they lacked notice that the landlord would seek relief, noting that it did not withdraw its counterclaim for rent arrears. Discussion I am troubled by the fact that this motion was not made until I scheduled a conference to set a trial (which is scheduled for early January, 2017) and that the motion was made nearly three years after the action was commenced. This delay distinguishes this case from all of the cases cited by the landlord. Nevertheless, Levinson v 390 West End Associates, L.L.C. (22 AD3d 397, 403 [1st Dept 2005]) and other cases, hold that"[c]onsistent with Real Property Law § 220, it has long been held that a dispute concerning the amount of rent owed is no reason to allow a tenant to occupy the landlord's real property gratis." This can be the case even where a tenant has an overcharge claim which exceeds the amount withheld , absent facts suggesting that there is a real danger that the 2 3 of 5 [* 4] landlord will not be able to satisfy the judgment (id.). Moreover, even if this motion is akin to a motion for summary judgment or for an injunction, requests for similar relief have been granted in numerous cases without the necessity of meeting the standards for summary judgment or an injunction (id., see also Oxford Towers Co., L.L.C. v Wagner, 58 AD3d 422 [1st Dept 2009]; Wasserman v Gordan, 24 AD3d 201 [1st Dept 2005]). Accordingly, under the circumstances, it is appropriate to order the tenants to pay ongoing monthly use and occupancy commencing December 5, 2016 in the amount of $2,000 per month, pendente lite, without prejudice to the parties' claims and defenses. In concluding that the tenants should not be directed to pay arrears, but should only be required to post a bond for retroactive rent arrears and/or use and occupancy, I consider that this motion appears to be made defensively, given that it was made simultaneously with my scheduling of a trial, after three years of arrears have accumulated. I also consider that the legal rent has yet to be established, but that it will be established shortly at trial. Additionally, because the case law holding that a tenant should not live rent free is based on the notion of fairness and because the legal rent has not been established, I also consider that there is no evidence that the tenants are unable to pay the requested monthly amount that they previously paid in the past and there is not evidence that the tenants cannot afford to post a bond. Accordingly, it is ORDERED that the motion is granted to the extent stated herein; and it is further ORDERED that plaintiffs pay ongoing monthly use and occupancy commencing December 5, 2016 in the amount of $2,000 per month, pendente lite, without prejudice to the parties' claims 3 4 of 5 [* 5] and defenses; and it is further ORDERED that on or before December 30, 2016, plaintiffs shall post a bond for $76,000 (October 1, 2013 through November 1, 2016) for retroactive rent arrears and/or use and occupancy, without prejudice to the parties' claims and defenses. This Constitutes the Decision and Order of the Court. Dated: November 18, 2016 ENTER: 1i6if Perertftt. MOULTON J.S.C. 4 5 of 5

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