222 Stanhope II, LLC v. Bagamery

• Decision Date: 12 November 2021
• Docket Number: 2020-868 K C
• Citation: 155 N.Y.S.3d 29 (Table),73 Misc.3d 137 (A)
• Parties: 222 STANHOPE II, LLC, Appellant, v. Chris BAGAMERY, Respondent.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 137 (A)

155 N.Y.S.3d 29 (Table)

222 STANHOPE II, LLC, Appellant,

v.Chris BAGAMERY, Respondent.

2020-868 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on November 12, 2021

Rosenberg & Estis, P.C. (Jeffrey Turkel of counsel), for appellant.

Law Office of Edward Deignan, PC (Edward Deignan of counsel), for respondent.

PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ.

ORDERED that the final judgment is reversed, without costs, the petition is reinstated and the matter is remitted to the Civil Court for a new trial.

Landlord commenced this nonpayment proceeding in 2016 alleging, in an amended petition, that the apartment was not subject to rent stabilization because the outer dimensions had been substantially altered. Tenant asserted a general denial and, among other things, that the apartment was subject to rent stabilization. A nonjury trial was held and, at the close of landlord's case, tenant moved to dismiss the petition, alleging that landlord had not proved its prima facie case. The Civil Court granted tenant's motion, holding that the apartment is rent stabilized, based "first and foremost ... on the credibility of the witnesses."

On a motion to dismiss the petition at the close of a landlord's case "for failure to establish a prima facie case, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom. The question of credibility is irrelevant, and should not be considered" (Matter of Hugee v Gadsden , 172 AD3d 863, 864 [2019] [internal quotation marks and citations omitted]; see Vitale v Astoria Energy II, LLC , 180 AD3d 1104 [2020] ; Brownrigg v New York City Hous. Auth. , 70 AD3d 619, 621 [2010] ). Giving landlord every favorable inference that can reasonably be drawn, we find that it made a prima facie showing that the outer dimensions of the apartment had been substantially altered, allowing it to charge a first rent in 2009, which "exceed[ed] the applicable amount qualifying for deregulation" (see Rent Stabilization Code [9 NYCRR] § 2520.11 [r] [4], [12] ). Thus, it was improper for the court to hold, as a matter of law, that the apartment is rent stabilized and to dismiss the petition at this juncture. The petition should therefore be reinstated and the matter remitted for a new trial. We reach no other issue.

Accordingly, the final judgment is reversed, the petition is...