Housing Dev. Assoc. LLC v Gilpatrick

[*1] Housing Dev. Assoc. LLC v Gilpatrick 2010 NY Slip Op 50740(U) [27 Misc 3d 134(A)] Decided on April 28, 2010 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
570517/08
PRESENT: McKeon, P.J., Schoenfeld, J.

Housing Development Assoc. LLC, Petitioner-Landlord-

against

Christopher Gilpatrick, Respondent-Tenant-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated May 13, 2008, which granted tenant's motion for partial summary judgment on his claim for rent overcharges, directed a hearing on tenant's claim for treble damages, and denied petitioner's cross motion for summary judgment on the nonpayment petition.

Per Curiam.

Order (Jean T. Schneider, J.), dated May 13, 2008, modified to dismiss that portion of tenant's counterclaim seeking recovery of treble damages; as modified, order affirmed, without costs.

We sustain the finding of rent overcharge, essentially for reasons stated by Civil Court. Even were we to assume, in the petitioner owner's favor, that the vacancy increases authorized by Rent Stabilization Law (Administrative Code of City of NY) § 26-511 and its implementing regulation (Rent Stabilization Code [9 NYCRR] § 2522.8[a]) are available to owners of stabilized hotel units as well as stabilized apartment units, the vacancy increase formulas set forth in the cited provisions and DHCR's own interpretation of Code section 2522.8(a) confirm that no vacancy increase may be recovered unless a hotel owner offers an incoming tenant the option of a vacancy lease for a one- or two-year term (see Rent Stabilization Code [9 NYCRR] § 2522.5). Here, the owner's unilateral offer of a lease running for a 56-week term, with no showing that any other durational option was provided to the tenant, did not constitute the type of vacancy lease tender sufficient to trigger the owner's claimed entitlement to a vacancy increase.

An award of treble damages is unwarranted, however, since the record shows that the owner held a reasonable, albeit mistaken, belief that a vacancy increase was
authorized (see Matter of Myers v D'Agosta, 202 AD2d 223 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur [*2]
Decision Date: April 28, 2010