Duncan v Caldwell
Annotate this CaseDecided on October 8, 2019
Civil Court of the City of New York, Bronx County
Nicole Duncan, Petitioner,
against
Angelique Caldwell, Respondent.
L & T 13235/18
For Petitioner:
S. Gary Moorley, Esq.
Mitofsky, Shapiro, Neville & Hazen LLP
152 Madison Avenue, 3rd Floor
New York, NY 10016
(212) 736-0500
For Respondent:
Gina Mitchell, Esq.
Mobilization for Justice
100 William Street, 6th Floor
New York, NY 10038
(212) 417-3700
Gabriel Fonseca, Esq.
of Counsel to Jeanette Zelhof, Esq.
Mobilization for Justice, Inc.
424 East 147th Street, 3rd Floor
Bronx, New York 10455
Christel F. Garland, J.
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY PETITIONER TO REARGUE
PAPERS NUMBERED
Notice of Motion, Affidavits & Affirmation Annexed 1
Answering Affidavit 2
Replying Affidavits & Affirmation Annexed 3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
By decision and order dated July 8, 2019, this Court granted Respondent's motion which sought an order dismissing this proceeding based on the Court's holding that Petitioner failed to state a cause of action as the subject apartment is subject to rent regulation and no ground for eviction was stated.
Petitioner now seeks an order granting her leave to re-argue, and upon re-argument denying Respondent's motion to dismiss and finding that the apartment is exempt from rent regulation due a substantial rehabilitation of the subject building in 2009. In the alternative, Petitioner seeks an order setting the matter down for a hearing to determine whether the subject building was substantially rehabilitated in 2009 and is thus exempt from rent regulation.
In support of her motion, Petitioner argues that this Court misinterpreted material facts and overlooked controlling principles of law concerning substantial rehabilitation. According to Petitioner the subject building underwent a substantial rehabilitation in December 2009, a date following the existence of the alleged single room occupancy units ("SROs") and following Respondent's occupancy of the apartment. Petitioner asserts that she raised this claim in opposing Respondent's motion to dismiss, but the Court's decision left this claim unaddressed. Petitioner now contends that since this Court has jurisdiction to hear this claim it must make a determination on whether the building underwent a substantial rehabilitation and is thus exempt from rent regulation. Further, Petitioner argues that notwithstanding her argument relating to the substantial rehabilitation, in granting Respondent's motion this Court should have dismissed the petition for lack of subject matter jurisdiction or stayed this proceeding pending a determination on her substantial rehabilitation claim rather than making a finding about the rent regulatory status of the apartment.
In opposition, Respondent argues that this Court should deny Petitioner's motion for several reasons. At the outset, Respondent argues that the petition is defective as it improperly pleads the regulatory status of the subject premises. Specifically, Respondent argues that even if the premises are exempt from rent regulation because the apartment was substantially rehabilitated, the petition as it stands is still defective as it fails to allege this fact as required by § 741 of the Real Property Actions and Proceedings Law ("RPAPL") which must be read in conjunction with the mandates of the Civil Practice Law and Rules ("CPLR") and requires that Petitioner state the facts upon which the proceeding is based which includes stating the regulatory status of the premises and any applicable exemptions. In addition, Respondent contends that whether the subject premises are exempt from rent regulation by way of a substantial rehabilitation is not a inquiry the Court is mandated to engage in, and the documents submitted in opposition to her motion to dismiss do not definitely prove that Petitioner substantially rehabilitated the building. Moreover, Respondent asserts that without an order from the Division of Housing and Community Renewal ("DHCR") exempting the building from rent stabilization, the premises may be considered subject to rent regulation without further inquiry.
In reply, Petitioner argues that this Court has concurrent jurisdiction with DHCR to hear claims of substantial rehabilitation, and that the cases relied upon by Respondent do not hold differently as the cases all involved DHCR proceedings that were already pending with the agency prior to the time that the summary proceedings were commenced. As to Respondent's argument relating to the sufficiency of the pleadings, Petitioner argues that this was not the basis of the Court's dismissal of the petition and contends that the petition is sufficiently plead. In support of this argument, Petitioner contends that even if the building became subject to rent [*2]regulation as a result of the alleged SRO condition, the pleadings still appropriately state that the subject building was a legal four-family dwelling after the substantial rehabilitation and the substantial rehabilitation deregulated the building notwithstanding the number of apartments. Moreover, Petitioner contends that Respondent was on notice that Petitioner sought to recover the subject apartment after the free-market lease between the parties expired.
Pursuant to CPLR § 2221 (d), leave to reargue shall be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include matters of fact not offered on the prior motion. The motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion and written notice of entry. "A motion to reargue[is] directed to the sound discretion of the Court its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Matter of Simmons v Joy, 24 Misc 3d 1030, 879 NYS2d 898 [Sup County, Albany County 2009] [internal quotations marks and citation omitted]).
After consideration of the parties' submissions and arguments, Petitioner's motion which seeks an order granting her re-argument is GRANTED. Upon re-argument, the Court's July 8, 2019 is modified to address Petitioner's claim of a substantial rehabilitation as set forth below. Petitioner's claim that this Court has jurisdiction to hear her claim of a substantial rehabilitation cannot be heard herein as the petition fails to state this essential fact. It is well-settled that pursuant to RPAPL § 741 (4), the petition in a summary proceeding must state the facts upon which the special proceeding is based. In addition, it has been held that where "the tenancy is subject to a specific form of regulation the petition must set forth the regulatory status of the premises, because this status may determine the scope of the rights of the parties" (Volunteers of America-Greater New York, Inc. v Almonte, 17 Misc 3d 57, 847 NYS2d 327 [App Term, Second Dept 2007]; see also 433 West Associates v Murdock, 276 AD2d 360, 715 NYS2d 6 [1st Dept 2000]). And, "while a defect of this nature may be overlooked where no prejudice results to the tenant", logic follows that if there is prejudice it may not be overlooked (Park Properties Associates, L.P. v Williams, 38 Misc 3d 35, 959 NYS2d 798 [App Term, 9th and 10th Jud Dists 2012]).
The cases relied upon by Petitioner for the proposition that this Court must entertain her claim of a substantial rehabilitation do not hold differently. In fact, in those cases the substantial rehabilitation claims were to be heard and held not to be subject to dismissal by the lower courts where the petitions alleged that the premises were exempt from rent regulation by reason of the substantial rehabilitations. Petitioner never made this claim here nor did Petitioner move for an order granting her leave to amend the petition.[FN1] As a result, Respondent did not have the opportunity to mount a proper defense to that claim which was raised for the first time in Petitioner's opposition to her motion seeking to dismiss this proceeding. Moreover, the evidence submitted in support of Petitioner's claim that the building underwent a substantial rehabilitation does not conclusively show that any work done to the building meets the required threshold for deregulation (see 9 NYCRR § 2520.11 (e); see also DHCR Operational Bulletin 95-2). Notably, the documents submitted are barely legible and the large cash withdrawals Petitioner claims show proof of payment for the work performed, without more, are insufficient to make a finding [*3]at this juncture. Until Petitioner obtains a determination, either from a court of competent jurisdiction or from DHCR, that the building did undergo a substantial rehabilitation as defined by law, Respondent's claim that she is a tenant protected by rent regulation remains unchallenged.
This constitutes the decision and order of the court.
A copy of this decision/order will be mailed to both sides.
Dated: October 8, 2019
Christel F. Garland, JHC Footnotes
Footnote 1:The Court notes that even if Petitioner did seek this relief, since a predicate notice cannot be amended, she may not have been able to obtain the relief.
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