Cammeby's Realty Co. v Rubinova

[*1] Cammeby's Realty Co. v Rubinova 2010 NY Slip Op 50471(U) [26 Misc 3d 1239(A)] Decided on March 19, 2010 Civil Court, Kings County Marton, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 26, 2010; it will not be published in the printed Official Reports.

Decided on March 19, 2010
Civil Court, Kings County

Cammeby's Realty Co., Petitioner,

against

Anna Rubinova et al., Respondents.



75141/09



Petitioner's counsel

Michael B. Kramer & Assoc.

150 East 58th Street - Suite 1201

New York, NY 10155

212-319-0304

Respondents' counsel

Tenenbaum & Berger LLP

6 Court Street - Penthouse

Brooklyn, NY 11242

718-596-3800

Gary F. Marton, J.

This is a holdover proceeding. Petitioner alleges that the premises is not subject to rent regulation because it is a residential apartment in a building owned and operated by a cooperative corporation, and that respondent was a month to month tenant whose tenancy has been terminated and who has refused petitioner's offer of a fair market lease.

Respondent defends on the ground that her tenancy is subject to the Rent Stabilization Law because the building was receiving J-51 tax abatement benefits when she began her tenancy. Respondent also argues that petitioner is estopped from denying her rent stabilized status because petitioner represented in pleadings in prior proceedings that the premises was subject to rent stabilization coverage, and because petitioner offered her leases and renewals that recited that the premises is rent stabilized.

Respondent moved pursuant to CPLR 3211 to dismiss on these grounds. The court notified the parties that it would treat respondent's motion as one for summary judgment (see CPLR 3211[c]) and granted them time to submit additional papers. Now the court denies the motion and restores the proceeding to its calendar on April 15, 2010 for trial.

It is uncontested that in 1989 the building in which the premises is located was converted to cooperative ownership, that at that time the premises was occupied by a non-purchasing rent-stabilized tenant, that petitioner was the sponsor of the cooperative conversion plan, and that it was not until 1997 that respondent became a tenant of the premises. [*2]

The Rent Stabilization Law (Administrative Code of City of NY § 26-501 et seq.) and Rent Stabilization Code (9 NYCRR § 2520.1 et seq.) do not apply to multiple dwellings owned as cooperatives, or to dwelling units in a building receiving the benefits of Administrative Code § 11-243[FN1] owned as a cooperative except as provided in General Business Law § 325-eeee (see Rent Stabilization Law [Administrative Code of City of NY] §26-504[a], [c]; Rent Stabilization Code [9 NYCRR] §2520.11[l]). Rent Stabilization Code § 2522.5(h)(5) provides that if a housing accommodation which was subject to the Rent Stabilization Code is vacated or rented to a new tenant after the cooperative offering plan is declared effective and the closing has occurred, that apartment is not subject to the Rent Stabilization Code.

Real Property Tax Law § 489(1)(a) authorizes adoption of local laws establishing real estate tax abatements. The Administrative Code of the City of New York § 11-243 is a local law that provides for such tax abatements. While the Rules of the City of New York (28 RCNY) § 5-03 provide that to be eligible to receive J-51 tax abatements generally all dwelling units in the building are subject to rent regulation, dwelling units in multiple dwellings owned as cooperatives are specifically exempt from such regulation unless they are otherwise regulated pursuant to the Rent Control Law (Administrative Code of City of NY §26-401 et seq.), the Rent Stabilization Law of 1969 (Administrative Code of City of NY § 26-501 et seq.), the Private Housing Finance Law, any federal law providing for

rent supervision or regulation by any federal agency, or the Emergency Tenant Protection Act (see 28 RCNY § 5-03 [f][1];[2][i]).

One who rents an apartment from the original sponsor and holder of unsold shares in a building that has been converted to cooperative ownership is a "non-purchasing tenant" under the Martin Act (General Business Law § 352-eeee). While a non-purchasing tenant who resided in a dwelling unit subject to rent regulation prior to the building's conversion remains thereafter protected by rent regulation (see Matter of 160 Bleecker St. Owners, Inc. v Division of Housing & Community Renewal, 27 AD3d 369 [1st Dept 2006]), a non-purchasing tenant who began to reside in an apartment not subject to rent regulation after conversion has more limited rights. The Martin Act does not institute a system of rent regulation for post-conversion non-purchasing tenants. Instead, a post-conversion non-purchasing tenant is protected only from "unconscionable" rent increases upon the expiration of the term of the tenancy (see Paikoff v Harris, 185 Misc 2d 372 [App Term, 2d Dept. 1999]).

In support of her motion, respondent submits copies of records downloaded from the New York City Department of Finance website. They show that J-51 abatements were granted in tax year 1990/1991. However, these documents do not refer to the building in which the premises are located. Further, the conversion occurred well before the 1990/1991 tax year began. Accordingly, the foregoing does not demonstrate that the premises is subject to Rent Stabilization coverage (see State of New York v Fashion Place Assoc., 224 AD2d 280 [1st Dept 1996] appeal dismissed 89 NY2d 917[1996]; cf. Roberts v Tishman Speyer Props., L.P.,62 AD3d 71 [1st Dept 2009], affd 13 NY3d 270[2009]). [*3]

Respondent also argues that inasmuch as her leases with petitioner recited that they were "Rent Stabilized," petitioner may not claim here that her tenancy is not subject to rent stabilization. However, coverage under this rent regulatory scheme is governed by statute and it cannot be created by waiver or estoppel (see Gregory v Colonial DPC Corp.III, 234 AD2d 419 [2d Dept 1996]; Heller v Middagh St. Assoc., 4 AD3d 332 [2d Dept 2004]). Nor can petitioner's allegations in a prior proceeding that the premises were subject to Rent Stabilization coverage confer such status on the premises (see 546 W. 156th Street HDFC v Smalls, 43 AD3d 7 [1st Dept 2007]).

A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by submitting sufficient evidence in admissible form to eliminate material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]; Winegrad v New York Univ. Med Center, 64 NY2d 851 [1985]). In the absence of such a showing the motion must be denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ Med. Center,64 NY2d 851). Respondent has not made such a showing. Accordingly, respondent's motion is denied and the proceeding is restored to the court's calendar for trial on Thursday April 15, 2010 at 9:30 am.

The court will mail a copy of this decision and order to the parties.

Dated: Brooklyn New York

March 19, 2010____________________GARY F. MARTON Footnotes

Footnote 1:Formerly, Administrative Code § J51-2.5 and now commonly referred to as J-51.