286 Clinton LLC v Lazarre
Annotate this CaseDecided on December 14, 2007
Civil Court of the City of New York, Kings County
286 Clinton LLC, Petitioner-Landlord
against
Nicolaine Lazarre, Respondent-Tenant
L & T 88817/07
BALSAMO ROSENBLATT & SHIVERS, P.C.
Attorneys for Petitioner
BY: DAVID BROOKSTONE, ESQ., Of Counsel
80 Livingston Street
Brooklyn, New York 11201
(718) 858-7280
KENNETH B. HAWCO
Attorney for Respondent
500 West End Avenue,
New York, NY 10024
(212) 874-7717
Sabrina B. Kraus, J.
This summary nonpayment proceeding was commenced by 286 CLINTON LLC,("Petitioner") seeking to recover possession of apartment 4A at 290 Clinton Avenue, Brooklyn, New York, 11205 ("Subject Premises") based on allegations that NICOLAINE LAZARRE, the tenant, ("Respondent") had failed to pay rent for July and August 2007.
PROCEDURAL HISTORY
The proceeding was originally returnable on October 11, 2007.
On that date, Petitioner moved to discontinue the proceeding, based on the allegation that the amount sought in the petition had been satisfied. Respondent opposed the application to discontinue, arguing that Petitioner was required to move for said relief, on written notice, pursuant to CPLR 3217. Additionally Respondent's counsel alleged that his adversary had recently advised that a new proceeding would be commenced on the heels of the discontinuance of the instant proceeding.
Respondent had also moved for summary judgment, and said motion was returnable on the initial return date for this proceeding.
The parties entered into a briefing schedule on Respondent's motion, and the Court held Petitioner's oral application to discontinue in abeyance, pending the submission of all papers on the motion.
THE MOTION
Respondent moves in its papers for dismissal of the Petition. As Petitioner had also sought to discontinue the petition, on the undisputed basis that the amounts sought therein had been satisfied, Petitioner's oral application to discontinue the petition is granted, and Respondent's motion for dismissal of the Petition is thus moot.
Respondent also moves for summary judgement on the seven counterclaims she has interposed in the underlying proceeding. [*2]
Respondent's first four counterclaims are all based, in one form or another, on the assertion that the subject apartment is subject to rent stabilization, and that the amount charged and collected by the Petitioner is in excess of the legal regulated rent for the subject premises.
The parties agree that the Lease for the subject premises was on a form for rent stabilized apartments. The parties further agree that the Lease recites that by virtue of the fact that Petitioner receives benefits pursuant to Real Property Tax Law 421, the premises are subject to rent stabilization.
Furthermore, the Petition in this proceeding alleges in paragraph seven (7) that the premises are subject to Rent Stabilization and that the rent sought herein does not exceed the lawful rent, which has been duly registered with DHCR. Moreover, the Respondent alleges that as recently as October 1, 2007 Petitioner offered Respondent a Rent Stabilized Lease Renewal for a term commencing January 1, 2008. This allegation is not rebutted and a copy of the renewal offer is annexed to the moving papers.
In its opposition papers to the motion, Petitioner states that the use of rent stabilization forms and previous allegations that the premises were covered by rent stabilization due to a 421 tax abatement were all inadvertent mistakes by the landlord. " In determining whether a dwelling unit is subject to rent regulation .. what is controlling is whether the premises meet the statutory criteria for protection under the applicable regulatory statute." 546 West 156th Street HDFC v. Smalls, 43 AD3d 7 (1st Dept., 2007). Thus, if the landlord inadvertently used incorrect forms, and mistakenly alleged that the premises were subject to rent regulation by virtue of the receipt of a 421 A Tax abatement, these errors would not create rent regulated status for a unit that was not otherwise subject to rent regulation by statute.
The certified DHCR registrations for the subject apartment show that in 2003 the registered rent was $1870.97 based on a vacancy lease for Violet Hobsen, which lease began on March 1, 2003 for a term through February 29, 2004. The registration was filed on August 27, 2003, with an effective date of April 1, 2004.
On or about August 27, 2004, the 2004 registration was filed with a registered rent of $2207.74. The 2004 registration provides that the increase was based on a vacancy, and that a new tenant, George Murray, had taken occupancy under a written lease which began March 1, 2004 for a term through February 28, 2005. The registration further listed the status of subject apartment as exempt based on "high rent vacancy".
Petitioner, in reliance upon the 2004 Registration, now argues in opposition to Respondent's motion, that the premises are no longer subject to Rent Stabilization by virtue of luxury decontrol. Petitioner argues that the decontrol is justified based on the 2003 Registration, showing a legal rent of $1870.97, and the subsequent vacancy and new lease entered into March 1, 2004.
Respondents's claim essentially is that the 2003 registration for Violet Hobsen was a fraud, that no such tenant ever existed, and that the registration was fraudulently filed by Petitioner for the purposes of evading the rent regulation laws. Respondent has failed to supply any significant evidence to support its claim, however neither has Petitioner provided any evidence, such as, the vacancy lease for Victoria Hobsen supporting the validity of the 2003 registration.
Rather, the parties' papers are in large part focused on the statute of limitations regarding overcharge complaints. Petitioner primarily arguing that the four year statute of limitations regarding rent overcharge claims precludes examination of the 2003 Registration, and limits [*3]Respondent to challenging any increase based on the 2003 Registration.
Respondent instead claiming that the failure of Petitioner to serve and file a reply to the counterclaims, precludes the assertion of the statute of limitations, which is an affirmative defense.
For the following reasons, the Court denies Respondent's motion for summary judgment, and
finds that there are material questions of fact requiring a trial herein.
PETITIONER SHALL BE ALLOWED TO ASSERT THE STATUTE OF
LIMITATIONS DEFENSE IN REPLY TO THE COUNTERCLAIMS ASSERTED
HEREIN
The Court finds that Petitioner is entitled to raise the affirmative defense of the four year statute of limitations, in reply to the rent overcharge counterclaims asserted herein, and deems the general denial considered to have been interposed to said counterclaims, amended to reflect same.
...(T)he court can deem a reply to a counterclaim interposed where the opposition to a motion
for judgment on the counterclaim contains within it the content of a reply, though not labeled as
such, and the court need not require an additional motion for leave to amend the pleadings
especially where such leave would be freely given absent prejudice. The liberal pleading
requirements set forth in CPLR § 3025(b) contemplate such a result. Accordingly, the
court shall deem petitioner's opposition to respondent's motion for judgment on their
counterclaims as a reply thereto.
Tan Holding Corp. v. Wallace, 182 Misc 2d 422, 432
(Civ. Ct., NY Co., Hoffman. J., 1999) revd on other grounds 187 Misc 2d 687 (App.
Term, 1st Dept., 2001).
EXAMINATION OF THE RENTAL HISTORY MAY GO BEYOND FOUR
YEARS FOR THE PURPOSE OF DETERMINING WHETHER THE APARTMENT IS
SUBJECT TO RENT STABILIZATION BUT NOT FOR THE PURPOSE OF COMMUTING
THE AMOUNT OF ANY OVERCHARGE
The statute of limitations defense is applicable in determining the amount of any alleged rent overcharge, but not in determining whether or not the subject premises is governed by rent stabilization. The cause of action for residential rent overcharge accrues and the four year statute of limitations begins to run when the first overcharge is alleged. Mozes v. Shanaman, 21 AD3d 854 (1st Dept., 2005) lv to appl den'd 6 NY3d 715..
Since Respondent interposed her counterclaims by service of her pleading on September 28, 2007, for the purpose of determining the amount of any overcharge, the Court is precluded from examining any rental history prior to September 28, 2003, which includes the 2003 registration, filed on August 27, 2003 for a period effective April 1, 2003. Ridges & Spots Realty Corp. V. Edwards, 4 Misc 3d 130(A) (App. Term, 1st Dept., 2004). The rent paid under the lease extant on September 28, 2003, thus may no longer be challenged unless that lease and registration are established to be fraudulent and a nullity by Respondent at a trial herein. Id.
CPLR 203(d) does not apply to relate the overcharge complaint back to the filing of the petition, because the petition has been satisfied and voluntarily discontinued by Petitioner. Bowen v. East 13th Street Realty Co., 182 Misc 2d 99 (App. Term, 1st Dept., 1999).
However, if Respondent is successful at trial in establishing that the 2003 Vacancy Lease [*4]for Violet Hobsen, and Registration, upon which it is based, were fraudulent, the registration and rent it purports to establish will be a nullity. In such event, the legal rent would be determined by use of a default formula established by DHCR and approved by the Court of Appeals in Thornton v. Baron, 5 NY3d 175 (Ct of App., 2005).
CPLR § 213-a provides that an action for residential rent overcharge shall be commenced within four years, and that the examination of the rental history of the premises prior to said four year period is not permitted. The proscription on looking beyond the four year period to determine the amount of an overcharge applies even where the prior rental history clearly indicates that an unauthorized rent increase had been imposed. Thorton v. Baron, 4 AD2d 258 (1st Dept., 2004).
However, there is authority that provides that consideration of events beyond the four year period is permissible if done not for the purpose of calculating an overcharge, but rather to determine whether the subject premises is subject to rent regulation. East West Renovating Co.v. DHCR , 16 AD3d 166 (App. Div., 1st Dept., 2005); Tribeca M. Corp. v. Haller, 11 Misc 3d 133 (A)(App. Term, 1st Dept. 2006)(four year statute of limitations on rent overcharges does not bar challenges to high-rent deregulation).
In the case at bar, the threshold question is whether the subject apartment is subject to rent stabilization.
The base date for determining a rent overcharge complaint is calculated as four years prior to
the date of the filing of the overcharge complaint. Newport Partners LLC v.
DHCR, 15 Misc 3d 1125(A) (WL 1200934, 2007). In the case at bar, the proceeding
was commenced on or about August 2007, and the answer and counterclaims were served and
filed on or about September 2007. The 2003 registration that Respondent relies upon was filed on
August 27, 2003 for a date effective April 1, 2003. Thus the registration falls within the four year
period, and in any event is being considered on the issue of whether the premises are subject to
regulation as a threshold issue.
THERE ARE ISSUES OF FACT REQUIRING A TRIAL IN ORDER TO
DETERMINE WHETHER THE PREMISES ARE SUBJECT TO RENT
STABILIZATION
The Court finds that as to that threshold issue there are questions of fact requiring a trial herein. The petition and all leases in this case treat the apartment as rent stabilized based on a -421 tax abatement. While it is true that such errors do not make the premises subject to rent stabilization, they do add to the creation of factual issues. There has never been any amendment to that allegation, and the petition was a verified pleading.
However, Petitioner now submits an affidavit stating that these allegations were all mistaken. No further documentation is offered in support of this position. Even if the Court considered said affidavit as unopposed, Petitioner's own contrary and unexplained positions as to whether or not the premises are subject to rent regulation, creates an issue of fact requiring a trial. Additionally, the Respondent has raised an issue of fact, regarding the validity of the tenancy of Violet Hobsen, her lease and the registration upon which it is based.
Based on the forgoing, Respondent's motion for summary judgment on her first four counterclaims is denied.
To the extent the motion seeks an award of attorneys fees based on the sixth and seventh counterclaims, that request is also denied as premature. [*5]
As to the third counterclaim which also goes to the issue of whether or not the premises are subject to rent regulation, Respondent's motion is denied and the claim preserved for trial herein.
As to the fifth counterclaim, which seeks the return of the Respondent's security deposit pursuant to General Obligations Law 7-103, the Respondent's motion for summary judgment is denied and the counterclaim is severed. The counterclaim is not inextricably intertwined with the issues remaining before this Court, and in fact this Court lacks jurisdiction to order the relief sought by Respondent therein. 225 Holding Co. LLC v. Beal, 12 Misc 3d 136(A)(App. Term, 9th & 10th Dept., 2006).
CONCLUSION
In conclusion, the Respondent's motion for summary judgment is denied for the reasons stated above, and Respondent's fifth counterclaim is severed . The proceeding is restored to the calendar by the Court for all purposes on January 7th, 2008, at 9:30 a.m. in Part H.
This constitutes the decision and order of this Court.
Dated: December 14, 2007
Brooklyn, New York
_______________________
Hon. Sabrina B. Kraus
J.H.C.
TO:
(718) 237-5500
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
