390 West End Associates v. Baron

Decision Date13 July 2000
Citation711 N.Y.S.2d 176,274 A.D.2d 330
Parties390 WEST END ASSOCIATES, Appellant,<BR>v.<BR>SHLOMO BARON, Respondent.
CourtNew York Supreme Court — Appellate Division

Concur — Rosenberger, J.P., Nardelli, Ellerin, Andrias and Saxe, JJ.

Plaintiff landlord seeks to vacate a consent judgment in which plaintiff and defendant prime tenant purported to waive the provisions of the Rent Stabilization Law. In July 1993, plaintiff commenced this action seeking a declaration that defendant's apartment was exempt from rent regulation because defendant was not using it as his primary residence. The parties entered into a settlement agreement whereby defendant consented to the entry of a judgment declaring that (a) the apartment was not his primary residence; (b) the apartment was exempted from the Rent Stabilization Law; (c) defendant was not entitled to a renewal lease, except as provided in any written agreement between the parties; and (d) any subsequent lease would similarly be exempted from rent stabilization.

Pursuant to this agreement, the parties ratified the deregulated lease that they had previously executed. The lease provided that it would be automatically renewed at defendant's option, and that he could sublet or assign it to any person who did not use the apartment as a primary residence. Defendant's rent was set at $2,400 per month. The prior rent-stabilized tenant had paid approximately $507 per month.

In January 1993, defendant sublet the apartment to David and Cynthia Thornton for an initial term of two years at $3,250 per month, with two one-year renewal options at $3,500 and $3,750. Although the sublease provided that the Thorntons would not use the apartment as their primary residence, they did so use it, and are still primarily residing there.

On August 31, 1993, a consent judgment was entered in Supreme Court, New York County, declaring the apartment exempt from rent stabilization during defendant's tenancy, by virtue of the fact that he would not occupy it as his primary residence. In 1996, the Thorntons commenced a rent overcharge action against defendant, alleging that he had created an illusory tenancy to make a profit in violation of the Rent Stabilization Law. The overcharge action appears to have lain dormant since 1996. Meanwhile, the Thorntons still reside in the apartment, though they have suspended payment of rent. Plaintiff was not named as a defendant in the overcharge action.

In April 1999, plaintiff moved to vacate the consent judgment and rescind defendant's lease so that it could offer a rent-stabilized lease to the Thorntons. It cited 390 W. End Ave. Assocs. v Youngstein (221 AD2d 292, 294), in which plaintiff's nearly identical arrangement with another tenant was designated an "`"illusory" tenancy'" by this Court. In Youngstein, we suggested that the proper procedure was to seek vacatur of the relevant consent judgment before the court that originally entered it (supra, at 294). Moreover, plaintiff alleged that defendant had breached the lease by subletting the apartment to someone who was using it as a primary residence. Defendant contended, as he does on appeal, that the action was untimely, and also that plaintiff was not entitled to equitable relief because of its own "unclean hands," in that it had profited from its collusive arrangement with him.

The IAS Court denied plaintiff's motion on the grounds that it would be more appropriate to resolve all issues relating to the tenancy in the Thorntons' plenary overcharge action. Plaintiff unsuccessfully moved for renewal and reargument, arguing that the IAS Court had overlooked the fact that plaintiff could not obtain relief in the overcharge action because it was not a party. Additionally, plaintiff cited pertinent cases which had been decided subsequent to the IAS Court's initial order. These cases held that an...

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  • 544 W. 157th St. Hous. Dev. Fund Corp. v. Alliance Prop. Mgmt. & Dev., Inc., Index No. 104203/2012
    • United States
    • New York Supreme Court
    • November 22, 2013
    ...American Banana Co., Inc., 50 A.D.3d 593, 594 (1st Dep't 2008); Willett v. Lincolnshire Mgt., 302 A.D.2d 271; 390 W. End Assocs. v. Baron, 274 A.D.2d 330, 332 (1st Dep't 2002); Wells Fargo Bank v. Hodge, 92 A.D.3d 775, 776 (2d Dep't 2012). Since plaintiff's waiver of its rights may be infer......
  • Nomura Securities Intern. v. E*Trade Securities
    • United States
    • U.S. District Court — Southern District of New York
    • September 4, 2003
    ...Granite Partners, L.P. v. Bear Stearns & Co., Inc., 17 F.Supp.2d 275, 310 (S.D.N.Y.1998); see also 390 West End Assocs. v. Baron, 274 A.D.2d 330, 711 N.Y.S.2d 176, 178 (1st Dep't 2000) (using the terms "in pari delicto" and "unclean hands" interchangeably); Nathanson v. Weis, Voisin, Cannon......
  • 204 Columbia Heights, LLC v. Manheim
    • United States
    • New York Supreme Court — Appellate Division
    • January 19, 2017
    ...signed]; 390 W. End Assoc. v. Harel, 298 A.D.2d 11, 744 N.Y.S.2d 412 [1st Dept.2002] [consent judgment]; 390 W. End Assoc. v. Baron, 274 A.D.2d 330, 711 N.Y.S.2d 176 [1st Dept.2000] [same]; Draper v. Georgia Props., 230 A.D.2d 455, 660 N.Y.S.2d 556 [1st Dept. 1997], affd. 94 N.Y.2d 809, 701......
  • Jazilek v. Abart Holdings, LLC, 2009 NY Slip Op 31847(U) (N.Y. Sup. Ct. 8/13/2009)
    • United States
    • New York Supreme Court
    • August 13, 2009
    ...to the strict requirements set forth in the law. see, 390 W. End Assoc. v. Harel, 298 A.D.2d (1st Dept 2002); 390 W. End Assoc. v. Baron, 274 A.D.2d 330 (1st Dept 2000); Drapery. Georgia Props., 94 NY2d 809 (1999); Abright v. Shapiro, 214 A.D.2d 496 (1st Dept 1995); Spaeda v. Bakirtiy, 186 ......
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