Kahana v Gaeta

[*1] Kahana v Gaeta 2005 NYSlipOp 51313(U) Decided on August 17, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-794 K C NO. 2004-794 K C

Malech Kahana, Respondent,

against

Michael Gaeta and Millie Gaeta, Appellants.

Appeal by tenants from an order of the Civil Court, Kings County (O. Chin, J.), dated June 7, 2004, denying their motion, in effect, for leave to reargue their prior motion seeking an extension of a stay of execution of the warrant.

Appeal dismissed.

Inasmuch as tenants, in their papers in support of the motion which resulted in the order of June 7, 2004, submitted no new facts which were unavailable at the time of their original motion, their motion was actually one to reargue, the denial of which is not appealable (see Meehan v David J. Hodder & Son, Inc., 13 AD3d 593 [2004]; Duffy v Wetzler, 260 AD2d 596, 597 [1999]). However, for the reasons that follow, in the interest of justice, the dismissal of the appeal is without prejudice to an application by tenants in the court below to vacate the stipulation of settlement.

In this holdover proceeding, the petition alleges that landlord served a notice terminating tenants' oral month-to-month tenancy. It further alleges that the apartment is not subject to rent control or rent stabilization because it is contained in a three-family dwelling and tenants moved in after July 1, 1971. Tenants, a brother and sister who are 72 and 80 years old, respectively, while represented by Brooklyn Legal Services, stipulated to the entry of a final judgment in favor of landlord with execution of the warrant stayed for a year. However, in moving for an enlargement of time to vacate, as provided for in the stipulation, tenants showed, and landlord did not dispute, that tenant Millie Gaeta has continuously resided in the apartment for 75 years, since 1929, and that tenant Michael Gaeta has lived there since birth. Apartments in buildings containing three or more units that were completed prior to February 1, 1947 and have been continuously occupied by the same tenant since July 1, 1971 are subject to rent control (NY City [*2]Rent and Rehabilitation Law [Administrative Code of City of NY] § 26-403 [e]; NY City Rent and Eviction Regulations [9 NYCRR] § 2200.2 [e]; see Finkelstein & Ferrara, Landlord and Tenant Practice in New York § 11:57 [West's NY Prac Series 2002]). Thus, it appears that tenants may well be protected under rent control and that the petition may contain material misrepresentations with respect to the rent control status of the apartment and the date when tenants moved in. In these circumstances, the stipulation may be subject to vacatur and the petition subject to dismissal as a matter of equity (see Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996], citing MSG Pomp Corp. v Doe, 185 AD2d 798 [1992]; Hegeman Asset v Smith, 5 Misc 3d 8, 13 [App Term, 2d & 11th Jud Dists 2004]). In the interest of justice, tenants should be afforded an opportunity to move to vacate the stipulation and dismiss the proceeding upon a proper showing that they are protected by rent control.

Pesce, P.J., and Belen, J., concur.

Rios, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
MALECH KAHANA,

Respondent,

-against-
MICHAEL & MILLIE GAETA,

Appellants.

Rios, J., concurs in a separate memorandum:

The parties each represented by counsel entered into a court-ordered stipulation resulting in a final judgment of possession in favor of the landlord. The full stay authorized by RPAPL 753 has expired.

The suggestion by the majority that appellants may be rent-controlled tenants is unsupported by the record and is merely speculation.

Accordingly, I would dismiss the appeal without reservation.
Decision Date: August 17, 2005