Roberts v W7879 LLC

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Roberts v W7879 LLC 2013 NY Slip Op 32519(U) October 16, 2013 Supreme Court, New York County Docket Number: 110213/10 Judge: Joan M. Kenney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] PRESENT: PART , ; - Justice INDEX NO. MOTION DATE -v MOTION SEO. NO. MOTION CAL NO. The following papers, numbered 1 to _ _ were read on this motion t o / f o r - - - - - - Notice of Motion/ Order to Show Cause - Affidavits Exhibits ... Exhibits ----------~ Answering Affidavits - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - · - - - - - - Cross~Motion: Yes ~No Upon the foregoing papers, it is ordered that this motion MOTION IS DECIDED IN ACCORDANCE WITH THE ATTACHED MEMORANDUM DECISION. Tnis · . !:- · and ~~?;~;'~;it has not be~ obtain ent~ ~ntry cannot be servedbfuthe County Clerk apfJear IR ~nse1 or authorized rePre hereon. To sed Jil@A . ¢. Dated: ' -·-.t ¢ ... ¢· ¢ _{(}_ll.__~·-l Check one: ! ! at th@~~ sentative must . --· Qeel( (~ .. _ ,. f.__..:?_ _ · · ·-·_,,. ¢ 0 . m ,,. . . . .,. ;' IC:;;iJ'j -~ ¢·4 ( '~'=c~::~EY FINAL DISPOSITION Check if appropriate: . . - ¢n Liu J.S.C. 9LNON-FINAL DISPOSITION DO NOT POST REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 8 ----------------------------------------x JUDITH COHEN ROBERTS, AMENDED DECISION, ORDER & JUDGMENT Plaintiffs, -against- Index No.: 110213/10 W7879 LLC; N, K and S, LLC; West 79th LLC; MN Broadway, LLC; Lisa W. Nagel Irrevocable T LLC; DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL, Evelyn Nagel and Alan Trustees; DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL, FBO STEVEN NAGEL ET AL., Evelyn Nagel and Alan Trustees; DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL, FBO EVELYN NAGEL ET AL., Evelyn Nagel and Alan Trustees; DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL, FBO CLAIR NAGEL ET AL., DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL, Clair Nagel Jernick and Alan Nagel Trustees; and DECENDENTS SINGLE TRUST U/W MICHAEL NAGEL FBO ALAN NAGEL ET AL, Alan Nagel and Steven Nagel Trustees, Defendants. ----------------------------------------x JOAN M. KENNEY I J.: Brier Deutschmeister Urban Popper PLLC Counsel for Plaintiffs 21 West 38~ Street, Bili Floor New York, NY 10018 (212) 791-3900 Krucker & Bruh, LLP Counsel for Defendants 747 Third Avenue New York, New York 10017 (212) 869-5030 Papers considered in review of these motions: Papers: Notice of Motion, Affirmation, Affidavit, Exhibits, Memorandum of Law Notice of Cross-Motion, Affirmation in Support and Opposition, Affidavit in Support and Opposition, Exhibits, Memo of Law in Support Reply affidavit in Opposition to Cross Motion and Reply Memoranda of Law in Opposition Reply Affirmation in Opposition Defendants move, pursuant to CPLR 3212, Numbered: 1-21 16-25 26-27 28 for summary judgment [* 3] Plaintiff cross-moves 1 , pursuant to CPLR dismissing the complaint. 3212, for summary judgment declaring that plaintiff is a rent- stabilized tenant of the apartment she occupies and granting judgment in her favor for her claims of rent overcharge and treble damages. FACTUAL BACKGROUND This action involves a landlord-tenant dispute in which the plaintiff tenant seeks: {1) a declaration that her apartment is rent-stabilized and that the monthly rents collected by defendant landlords since constitute an May 1, 2003, are (2) overcharge; erroneous, declarative unlawful relief and/or directing defendants to register the premises as a rent-stabilized unit with the New York State Division of Housing and Community Renewal {DHCR) at the lawful rent; (3) judgment in the amount of the overcharges plus treble damages for all wilful overcharges; and (4) attorneys' fees. This litigation results from the ruling of the Appeals in Roberts v Tishman Speyer Properties, L.P. (2009]), which receiving J-51 held, tax in sum benefits and could substance, not Court of (13 NY3d 270 that properties deregulate apartments therein, as long as such tax benefits were being received by the landlord of the property. 1 The motions were filed simultaneously. The Court is deeming the tenants' "Notice of Motion" a cross motion. 2 [* 4] Plaintiff is challenging the regulatory status of the apartment known as 104, 230 West 79th Street, a/k/a 229 West 79th Street, New York, New York 10024. subject apartment is receipt of J-51 In particular, rent stabilized, the tenant claims that the based upon the landlords' tax benefits at the time the tenant first occupancy of the unit. took It is the tenant's position that despite the ruling in the Roberts case, the landlords have refused to abide by the Court of Appeals decision. Defendants do not proffer an explanation as to how plaintiff's "base rent" was calculated. The documents from DHCR indicate that from 1984-1992 the apartment was never registered. Then, in 1993, it appears that the apartment was registered as rent stabilized, with a rent of $1,227.43. There is a notation that the registered rent was subject to an "MCI" or major capital increase, attendant to the registered rent. Nor do the landlords have any explanation or rationale, for failing to register the apartment for eight years, and without then stabilized. their failure rent, explanation register the apartment as rent The only explanation proffered by the landlords for to register the apartment legally, is that DHCR, during those years, unit be registered at all. Also, with the legal did not require that the defendants have not adequately explained how plaintiffs' "base rent," of $5,200.00 per month was calculated. Finally, defendants papers are silent regarding the conversion of the apartment from being rent-controlled to being rent-stabilized. 3 [* 5] In support of her cross motion, and in opposition to landlords' motion, plaintiff contends that the landlords do not dispute any of the facts presented in the complaint, and admit that J-51 tax benefits were being received, when plaintiff took possession of the apartment in 2003. J-51 notice, that Further, the lease fails to contain the required the apartment remained subject to rent- stabilization, despite the expiration of the J-51 tax period. In opposition to the tenant's cross motion, and in reply, the landlords concede that Roberts is retroactive in its applicability, and does not oppose the declared rent-stabilized. tenant's request that the apartment be Defendants' argue that their voluntary, pre-litigation actions, should preclude plaintiff from obtaining any finding of liability or damages as a matter of law. Moreover, by bringing the instant action plaintiff should be held liable for defendants' attorneys' fees. Defendants also contend that they were in compliance with the existing law and the guidelines promulgated by DHCR in 2003, as they applied to deregulation of rent regulated apartments, including the apartment at issue. had a The basis for this argument is that defendants good faith belief that plaintiff's apartment was properly deregulated based "on the existing interpretation of law." Furthermore, the apartment was deregulated by the prior owners of the building, and as far as defendants were concerned, in accordance with the law in effect at the time. Finally, defendants claim that plaintiff's fraud allegations 4 [* 6] are specious, and cannot extend the undisputed four year statute of limitations (CPLR 213-a) (rent overcharge), rather than the six year statute governing fraud (CPLR 213[8]). DISCUSSION "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from omitted]." 2006). the case [internal Santiago v Filstein, quotation marks 35 AD3d 184, and citation 185-186 (l5t Dept The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). a triable fact, If there is any doubt as to the existence of the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). Since the landlords have admitted that the apartment is rentstabilized, this fact has rendered moot any question as to the apartment's rent regulated status and whether plaintiffs are to be provided with a rent-stabilized lease. the calculation determined. of the correct However, stabilized rent the issue as to remains to be For the purpose of calculating the correct rent, the tenant's rent overcharge claim is subject to a four-year statute of limitations (see Rent Stabilization Law of 1969 et al). 5 "The Rent [* 7] Regulation Reform Act of 1997 'clarified and reinforced the fouryear statute of limitations applicable to rent overcharge claims by limiting examination the rental history of housing accommodations prior to the four-year period preceding the filing of an overcharge complaint' of Cintron v Calogero, Riverside Corp., (internal citations omitted] . " Matter 15 NY3d 347, 353 (2010); 93 AD3d 590 (1st Dept 2012). Gordon v 305 Defendants argue that the sole function of plaintiff's fraud allegations, is an attempt to provide a subterfuge to circumvent, the well-settled four year statute of limitation applicable to rent overcharge complaints. (See CPLR 213[8)). The elements of fraud are a misrepresentation or a material omission of fact which was known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or omission 1 and Representative injury (VisionChina Services, LLC, Media Inc. 2013 WL 2476558, v Shareholder quoting, Mandarin v. Wildenstein, 16 NY3d 173, 178 [2011]). Trading Ltd. "[R) eliance must be found to be justifiable under all the circumstances before a complaint can be found to state a cause of action in fraud" [1959]). What (Danann Realty Corp. constitutes v Harris, reasonable 5 NY2d 317, reliance is 322 "always nettlesome" because it is so fact-intensive (DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 155 [2010] 6 [internal quotation marks [* 8] omitted]). All of the elements of a fraud claim "must be supported by factual allegations containing the details constituting the wrong," in order to satisfy the pleading requirements of CPLR 3016(b) (Cohen v Houseconnect Realty Corp., 289 AD2d 277, 278 [2°ct Dept 2001]; see also, 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857 [2~ Dept 2005]}. The purpose of this pleading requirement "is to inform a defendant of the complained-of incidents" Partners, LP Nonetheless, v Seward & Kissel, LLP, 12 NY3d 353 (Eurycleia (2009]). it may be "almost impossible to state in detail the circumstances constituting a fraud where those circumstances are peculiarly within the knowledge of [an adverse] party" (Jered Contr. Corp. v New York City Tr. such circumstances, Auth., 22 NY2d 187, 194 [1968]). "Under the heightened pleading requirements of CPLR 3016(b) may be met when the material facts alleged in the complaint, in light of the surrounding circumstances, 'are sufficient to permit a reasonable inference of the alleged conduct' including the adverse party's knowledge of, or participation in, the fraudulent scheme" (High Tides, LLC v. DeMichele, 88 AD3d 954, 957 [2nd Dept 2011), quoting Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]}. In order to determine the correct rent and whether there has been any wilful rent overcharge, entitling plaintiffs to both treble damages and attorneys' fees, evidence must be presented on these 7 [* 9] issues. See Matter of Obiora v New York State Division of Housing and Community Renewal, 77 AD3d 755 (2d Dept 2010); Matter of Graham Court Owners Corp. v Division of Housing and Community Renewal, 71 AD3d 515 (1 5 t Dept 2010). In light of the landlords' dismiss plaintiff's claims. admissions, there is no basis to With respect to the rent overcharges, defendants have failed to establish, as a matter of law, that the base rent was calculated properly when the previous rent-controlled and/or rent stabilized tenant vacated the apartment, and when plaintiff took possession, in 2003, or that plaintiff's base rent was properly calculated. Excluding the issue of the rent-regulated status of the apartment, all of the causes of action are based on what would be the lawful rent for the unit and what, if any, increases from that amount are permissible under rent-regulation law. Since neither party has provided sufficient evidence for the court to make that determination, the fallowing issues are referred Referee to hear and report, in no particular order: 1. 2. 3. 4. Calculate the legal rent for the apartment in accordance with applicable DHCR regulations et al; Calculate the overcharges, if any, attendant to the apt; Take testimony and evidence in order to be able to recommend, or not, whether defendants wilfully registered an illegal rent for the subject apartment; In the event the Special Referee recommends an award of damages for 8 to a Special [* 10] 5. rent overcharge, a 4-year statute of limitations is to be applied. None of the foregoing shall preclude plaintiff from making a motion before the Special Referee to conform the pleadings to the proof. Accordingly, it is ORDERED that defendant's motion for summary judgment is denied; and it is further ORDERED that the portion of plaintiff's cross motion seeking a declaration that the apartment is rent-stabilized is granted; and it is further ADJUDGED and DECLARED that the apartment known as 104, 230 West 79~ Street, a/k/a 229 West 78~ Street, New York, New York 10024, is a rent-stabilized apartment; and it is further ORDERED that the issue of calculating plaintiff's legal stabilized rent is referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further ORDERED that the remainder of plainti 's cross motion is denied; and it is further ORDERED that defendants' motion is denied, and it is further ORDERED that counsel for the plaintiff shall, within 30 days from the date of this order, serve a copy of this order with notice 9 [* 11] of entry, together with a completed Information Sheet {Copies are available in Rm. 119M at 60 Centre Street and on the Court's website at www.nycourts.gov/supctmanh under the "References" section of the "Courthouse Procedures" link), upon the Special Referee Clerk in the Motion Support Office matter on the (Room 119M), who is directed to place this calendar of the Special Referee's Part for earliest convenient date. Dated: October 16, 2013 ENTER: ~ey, 10 J.S.C. the

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