Grunbaum v Skloot

[*1] Grunbaum v Skloot 2021 NY Slip Op 21360 Decided on December 28, 2021 Civil Court Of The City Of New York, Kings County Stoller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 28, 2021
Civil Court of the City of New York, Kings County

Judith Grunbaum, Petitioner,

against

Jules Skloot A/K/A JULIA SKLOOT, Respondent.



JUDITH GRUNBAUM, Petitioner,

against

SUNDEEP SINGH SUCHDEV, Respondent.



JUDITH GRUNBAUM, Petitioner,

against

YASHNA MAYA PADAMSEE, Respondent.



JUDITH GRUNBAUM, Petitioner,

against

HEIDI FRITZIE BUMBY CHUA, Respondent.



JUDITH GRUNBAUM, Petitioner,

against

JACOB HODES, Respondent.



JUDITH GRUNBAUM, Petitioner,

against

LUCAS SHAPIRO, Respondent.



Index No. 62648/2016



For Petitioner: Jonathan Schreier

For Respondent: Jasmine Crowder and George Gardner III
Jack Stoller, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Pages/numbered

In 62648/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 1, 2, 3

Notice of Cross-Motion and Supplement Affirmation Annexed 4, 5

Affirmation In Reply and Opposition to the Cross-Motion 6

Reply Affirmation 7

In 62649/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 8, 9, 10

Affirmation In Opposition 11

Reply Affirmation 2

In 62815/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 11, 12, 13

Affirmation In Opposition 14

Reply Affirmation 15

In 62816/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 16, 17, 18

Notice of Cross-Motion and Supplement Affirmation Annexed 19, 20

Affirmation In Reply and Opposition to the Cross-Motion 21

Reply Affirmation 22

In 62817/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 23, 24, 25

Notice of Cross-Motion and Supplement Affirmation Annexed 26, 27

Affirmation In Reply and Opposition to the Cross-Motion 28

In 62945/2016:

Notice of Motion and Supplemental Affirmation and Affidavit Annexed 29, 30, 31

Affirmation In Opposition 32

Reply Affirmation 33

Upon the foregoing papers, the Decision and Order on this motion are as follows:

Judith Grunbaum, the petitioner in these proceedings ("Petitioner"), commenced these holdover proceedings against the various respondents in these proceedings ("Respondents"), seeking possession of various units at 70 South Elliott Place, Brooklyn, New York ("the subject premises") for personal use. Petitioner previously moved to discontinue these proceedings without prejudice. The Court ruled on Petitioner's motions, by an order dated June 10, 2020 ("the Order"), by marking the proceedings discontinued with prejudice. Petitioner now moves to renew and, upon renewal, to vacate the discontinuance and to restore the matters to the calendar. Respondents cross-move to dismiss two of the proceedings. The Court resolves all of these motions by this order.

The subject premises are subject to the Rent Stabilization Law. Prior to June 24, 2019, N.Y.C. Admin. Code §26-511(c)(9)(b)("the Old Statute") permitted an owner to refuse renewal leases to rent-stabilized tenants and to recover possession of "one or more" stabilized dwelling units for the personal use and occupancy of the owner or of a member of the owner's immediate family. The effect of this statute was to permit an owner of a rent-stabilized building to obtain possession of every single unit thereof. Pultz v. Economakis, 10 NY3d 542, 548 (2008). Petitioner commenced these six proceedings for this purpose prior to June 24, 2019. As of June 24, 2019, these proceedings were pending and had not yet gone to trial.

On June 24, 2019, the Governor signed into law the Housing Stability and Tenant Protection Act ("HSTPA"). As is relevant to this proceeding, HSTPA amended the Old Statute to only permit recovery of one unit in a building and to require that an owner show an "immediate and compelling necessity" to recover that unit. L. 2019, c. 36, §1, Part I ("the New Statute"), §2. HSTPA made the New Statute effective "immediately" and provided that the New Statute "shall apply to any tenant in possession at or after the time [the New Statute] takes effect, regardless of whether the landlord's application for an order, refusal to renew a lease[,] or refusal to extend or renew a tenancy took place before [the New Statute] shall have taken effect." L. 2019, c. 36, §1, Part I, §5 ("Section 5").

After the enactment of the New Statute, Respondents moved to dismiss these proceedings, given that Petitioner sought to recover more than one unit at the subject premises and that Petitioner did not plead the new standard of "immediate and compelling necessity." Petitioner cross-moved for leave to discontinue the proceedings, albeit without prejudice given pending litigation at the time as to the constitutionality of the New Statute.[FN1] By the Order, the Court granted Petitioner's cross-motion "to the extent that the proceedings shall be deemed discontinued with prejudice to the predicate notice" and denied Respondents' motions to dismiss as moot.

By an order entered on February 9, 2021, the First Department of the Appellate Division adjudicated the applicability of the New Statute to a proceeding pending at the Appellate Term at the time of its enactment, after an owner prevailed at trial according to standards set by the Old Statute. Matter of Harris v. Israel, 191 AD3d 468, 470 (1st Dept.), leave to appeal dismissed, 37 NY3d 1011 (2021). Citing the Court of Appeals holding in Regina Metro LLC v. New York State Division of Housing and Community Renewal, 35 NY3d 332 (2020), that a retroactive application of a different section of HSTPA regarding the calculation of rent overcharges violated due process, the Court held:

[The New Statute] "impair[s] rights owners possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed" . Therefore, a presumption against retroactivity applies . [The Regina Metro determination] that an owner's increased liability and the disruption of relied-upon repose are impairments to his or her substantive rights precludes any retroactive application of [the New Statute] to this proceeding, where petitioner had spent several years reclaiming all other units at the property and was ultimately awarded a judgment of possession to the premises before HSTPA's enactment . "[T]here is no indication here that the legislature considered th[is] harsh and destabilizing effect on [the petitioner's] settled expectations, much less had a rational justification for that result .Harris, supra, 191 AD2d at 470.

Petitioner argues that Harris constitutes a change in the law that compels a vacatur of the Order. Dinallo v. DAL Elec., 60 AD3d 620 (2nd Dept. 2010)(a change in decisional law is sufficient to show a change of law for purposes of a motion to renew). While Petitioner supports her motion with an affidavit, the affidavit does not include facts of the kind the Court cited in Harris. More importantly, Petitioner did not attach the prior motion papers to her renewal motion, as required. Biscone v. JetBlue Airways Corp., 103 AD3d 158, 178 (2nd Dept. 2012), Stardial Communications Corp. v. City of New York, 2011 NY Misc. LEXIS 4636 (S. Ct. NY Co. 2011), All Am. Moving & Stor., Inc. v. Andrews, 31 Misc 3d 1214(A)(S. Ct. Bronx Co. 2011). Rules surrounding motions to renew are flexible and the Court, in its discretion, may grant renewal, in the interest of justice so as not to defeat substantive fairness, Matter of Pasanella v. Quinn, 126 AD3d 504, 505 (1st Dept. 2015), Hines v. New York City Tr. Auth., 112 AD3d 528 (1st Dept. 2013), Rancho Santa Fe Assn. v. Dolan-King, 36 AD3d 460, 461 (1st Dept. 2007), Mejia v. Nanni, 307 AD2d 870, 871 (1st Dept. 2003), despite a failure to satisfy the rigorous requirements of a motion to renew. Solomon Holding Corp. v. Stephenson, 118 AD3d 613, 614 (1st Dept. 2014). See, e.g., Dorian v. City of New York, 129 AD3d 445 (1st Dept. 2015). Be that as it may, in the absence of some factual presentation showing that the effect of the New Statute to Petitioner would be unconstitutional as applied to her, Petitioner would only prevail on her motion if she can show that Section 5 is unconstitutional on its face.

A finding that a statute is facially unconstitutional means that, regardless of the facts of the case before it, the Court must find the statute incapable of any valid application. Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1190 (2008), Copeland v. Vance, 893 F.3d 101, 110 (2nd Cir. 2018), cert. denied, 139 S. Ct. 2714 (2019), Amazon.com, LLC v. NY State Dep't of Taxation & Fin., 81 AD3d 183, 194 (1st Dept. 2010), affirmed sub nom. Overstock.com, Inc. v. NY State Dep't of Taxation & Fin., 20 NY3d 586, 597, cert. denied sub nom. Amazon.com LLC v. NY State Dep't of Taxation & Fin., 571 U.S. 1071 (2013), People v. Stuart, 100 NY2d 412, 421 (2003), Matter of State of NY v. Spencer D., 96 AD3d 768, 769-70 [*2](2nd Dept. 2012). Courts do not favor facial challenges to statutes, Wash. State Grange, supra, 128 S. Ct. at 1191, Copeland, supra, 893 F.3d at 111, People v. Taylor, 9 NY3d 129, 150 (2007), State of NY, supra, 96 AD3d at 769-70, Amazon.com, LLC, supra, 81 AD3d at 194, as Courts should not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Wash. State Grange, supra, 128 S. Ct. at 1191. Accordingly, the first task of a Court adjudicating a constitutional challenge to a statute is to determine if the statute is unconstitutional as applied to the litigant before it. Taylor, supra, 9 NY3d at 150.

Harris precluded any retroactive application of the New Statute — occasioned by Section 5 — to "this proceeding, where petitioner had spent several years reclaiming all other units at the property and was ultimately awarded a judgment of possession to the premises before [the New Statute's] enactment...." Harris, supra, 191 AD2d at 470. The decision goes on to reference the appellant personally, to wit, "th[is] harsh and destabilizing effect on [the petitioner's] settled expectations...." Id. The proposition disfavoring facial challenges militates against a construction of Harris that Harris sub rosa found Section 5 unconstitutional on its face, particularly while supporting its decision with facts specific to the case before it. A Court's finding that a statute might operate unconstitutionally under some conceivable set of circumstances does not render the statute wholly invalid. United States v. Salerno, 107 S. Ct. 2095, 2100 (1987).

The significance of the judgment of possession that the petitioner in Harris obtained is that a final judgment terminates a summary proceeding. 728 Fulton St., LLC v. Lashley, 2021 NY Slip Op. 51173(U)(App. Term 2nd Dept.). By contrast, Petitioner had not obtained a final judgment in this proceeding at the time of the enactment of the New Statute, so this proceeding was still pending as of the enactment. Where a statute has been amended during the pendency of a proceeding, the application of that amended statute to that pending proceeding is appropriate and poses no constitutional problem. St. Vincent's Hosp. & Med. Ctr. v. NY State Div. of Hous. & Cmty. Renewal, 109 AD2d 711, 712 (1st Dept.), affirmed for the reasons stated, 66 NY2d 959, 961 (1985), Mountbatten Equities v. NY State Div. of Hous. & Cmty. Renewal, 226 AD2d 128, 129 (1st Dept. 1996), Kass v. Club Mart of Am., Inc., 160 AD2d 1148, 1150 (3rd Dept. 1990), Jonathan Woodner Co. v. Eimicke, 160 AD2d 907, 908 (2nd Dept. 1990). A holding that Section 5 is unconstitutional as it applied to an owner who had obtained a judgment before the enactment of the New Statute therefore does not necessarily mandate the same result for an owner who had not obtained a judgment as such. Bldg. & Realty Inst. of Westchester & Putnam Cntys., Inc. v. New York, 2021 U.S. Dist. LEXIS 174535, at *69 (S.D.NY 2021), Fried v. Lopez, 2021 NY Slip Op. 21320, ¶¶ 2-3 (Civ. Ct. Kings Co.), Karpen v. Castro, 72 Misc 3d 852, 855 (Civ. Ct. Kings Co. 2021).

Harris also made reference to the several years the petitioner therein spent reclaiming other units at the property to underscore the extent to which Section 5 would destabilize his expectations. Petitioner has not made a similar showing here. Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations even though the effect of the legislation is to impose a new duty or liability based on past acts. Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 113 S. Ct. 2264, 2291-92 (1993). After all, an entirely prospective change in the law may disturb the relied-upon expectations of individuals, but such a change does not violate due process. United States v. Carlton, 114 S. Ct. 2018, 2022 (1994).

In the absence, then, of facts comparable to those that the Court in Harris, supra, found particularly compelling, to wit, an owner who had acquired possession of all units in a building [*3]save for one unit that an owner had obtained a final judgment of possession against after a full trial — all before the enactment of the New Statute — Petitioner does not show that the New Statute is unconstitutional as applied to her. Accordingly, it is ordered that the Court denies Petitioner's motion, without prejudice to Petitioner's appeal of the Order, and it is ordered the Court denies Respondents' cross-motions as moot.

This constitutes the decision and order of this Court.

Dated: December 28, 2021

Brooklyn, New York

_____________________________

HON. JACK STOLLER

J.H.C. Footnotes

Footnote 1:Petitioner did not attach to her motion to renew copies of the parties' motion papers upon which the Court based the Order. While the case is electronically filed, the motion papers are not electronically uploaded either. The Order, which Petitioner does annex to her motion, recites that the parties made motions and the grounds they stated.