517 W. 212 St. LLC v. Musik-Ayala

• Decision Date: 01 December 2017
• Citation: 517 W. 212 St. LLC v. Musik-Ayala, 58 Misc.3d 652, 66 N.Y.S.3d 861 (N.Y. Civ. Ct. 2017)
• Parties: 517 WEST 212 ST. LLC, Petitioner, v. Isaiah MUSIK–AYALA, Respondent.
• Court: New York Civil Court

58 Misc.3d 652

66 N.Y.S.3d 861

517 WEST 212 ST. LLC, Petitioner,

v.Isaiah MUSIK–AYALA, Respondent.

Civil Court, City of New York, New York County.

Dec. 1, 2017.

Levy, Tolman, and Costello, by Noah Levenson, for Petitioner.

Manhattan Legal Services, by Thomas James Honan, for Respondent.

JACK STOLLER, J.

The Decision and Order on this Motion are as follows:

517 West 212 St. LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Isaiah Musik–Ayala, the respondent in this proceeding ("Respondent"), seeking possession of 517 West 212th Street, Apt. 3C, New York New York ("the subject premises") on the ground that Respondent's lease expired and that no regulation requires Petitioner to renew Respondent's lease. Respondent interposed an answer that, inter alia, alleged that the subject premises is subject to the Rent Stabilization Law. Petitioner now moves for summary judgment in its favor and to dismiss Respondent's counterclaims. Respondent cross-moves for summary judgment dismissing the petition, awarding attorneys' fees, or, alternatively, for relief to obtain discovery.

The Court consolidates these motions for resolution herein.

At the outset, Petitioner opposes Respondent's motion on the basis that Respondent does not annex the pleadings to his motion . A motion for summary judgment "shall" be supported by, inter alia, a copy of the pleadings. CPLR § 3212(b). Accordingly, a failure to annex pleadings to a summary judgment motion warrants its denial, Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675, 964 N.Y.S.2d 137 (1st Dept.2013), unless other parties annex copies of the pleadings to their motion papers. Serowik v. Leardon Boiler Works Inc., 129 A.D.3d 471, 472, 11 N.Y.S.3d 128 (1st Dept.2015). As Petitioner annexes the pleadings to its motion, the Court shall consider both summary judgment motions on their merits.

The parties essentially dispute the rent regulatory status of the subject premises, with Petitioner claiming that the subject premises is unregulated and with Respondent claiming that the subject premises is subject to the Rent Stabilization Law. As the expiration of a lease is not a ground for eviction pursuant to the Rent Stabilization Law, N.Y.C. Admin. Code § 26–511(c)(4), the resolution of the parties' dispute as such determines the outcome of their motions. The motion papers reveal no fact dispute between the parties concerning the material issues necessary to determine the rent regulatory status of the subject premises. The tenant before Respondent ("the prior tenant") was subject to the Rent Stabilization Law and Petitioner duly registered the prior tenant's rents with the New York State Division of Housing and Community Renewal ("DHCR") pursuant to 9 N.Y.C.R.R. § 2528.3. The registration history and the prior tenant's leases show that the prior tenant entered into a one-year vacancy lease commencing in June of 2012 with a purported legal regulated rent of $2,015.76 and a preferential rent of $1,400.00;¹ that the prior tenant entered into a one-year renewal lease commencing in June of 2013 with a purported legal regulated rent of $2,056.07 and a preferential rent of $1,425.00; that the prior tenant entered into a one-year renewal lease commencing in June of 2014 with a purported legal rent of $2,138.31 and a preferential rent of $1,500.00; and that Petitioner subsequently treated the subject premises as exempt from the Rent Stabilization Law and entered into a one-year lease with Respondent commencing on May 1, 2015 with a monthly rent of $1,650.00.

Petitioner argues that it was entitled to an increase of 18.25% over the previous legal regulated rent of $2,138.31 upon execution of a one-year vacancy lease with Respondent, which would raise the rent to $2,528.55, above the threshold of $2,500.00 necessary to deregulate an apartment with a vacancy between June 24, 2011 and June 15, 2015. N.Y.C. Admin. Code § 26–504.3(a)(3). Twenty percent less 1.75%, the difference between an increase for a one- and a two-year renewal lease for leases commencing in May of 2015 by Rent Guidelines Board ("RGB") order 46,² is indeed 18.25%. However, on a one-year vacancy lease, Petitioner was entitled to a rent increase of twenty percent less the difference between an increase for a one-year and a two-year renewal applicable to the previous lease. N.Y.C. Admin. Code § 26–511(c)(5–a), 9 N.Y.C.R.R. § 2522.8(a)(2). Cf. Lirakis v. 180 Seventh Ave. Assocs., LLC, 12 Misc.3d 1173(A), 2006 WL 1789049 (Civ.Ct. N.Y. Co.2006) (applying the RGB guidelines for the lease previous to a tenant with a one-year vacancy lease). The lease previous to Respondent's first lease commenced in June of 2014. The difference between an increase for a one-year and a two-year renewal for leases commencing in June of 2014 is 3.75%. RGB Order 45. Twenty percent less 3.75% is 16.25%. An increase of 16.25% over $2,138.31, the purported legal regulated rent from the last lease of the prior tenant before Respondent's tenancy, is $2,485.79, less than the deregulatory threshold.

Respondent did not raise this argument in opposition to Petitioner's summary judgment motion. However, as the proponent of a motion for summary judgment, Petitioner bears the burden to tender sufficient evidence to eliminate any material issues of fact as to the claims at issue, regardless of the sufficiency of opposing papers. Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008), People v. Grasso, 50 A.D.3d 535, 545, 858 N.Y.S.2d 23 (1st Dept.), aff'd, 11 N.Y.3d 64, 862 N.Y.S.2d 828, 893 N.E.2d 105 (2008). While the Court will not, in essence, sua sponte dismiss the petition on this ground, as Respondent has not put Petitioner on notice as to this issue, the Court still denies Petitioner's summary judgment motion, as Petitioner failed to affirmatively eliminate issues of material fact that it lawfully increased Respondent's legal regulated rent above $2,500.00.

Respondent separately moves for summary judgment on the ground that the subject premises is subject to the Rent Stabilization Law. Respondent cites N.Y.C. Admin. Code § 26–511(c)(14) in support of his argument. N.Y.C. Admin. Code § 26–511(c)(14) provides that a landlord with a preferential rent may use the higher legal regulated rent, and not the lower preferential rent, as the basis for future rent increases when the tenant with a preferential rent vacates. However, upon a vacancy from such an apartment, N.Y.C. Admin. Code § 26–511(c)(14) further provides that the apartment "shall be excluded from [the Rent Stabilization Law] pursuant to [N.Y.C. Admin. Code § ]26–504.2³ ... when, subsequent to vacancy ... such legal regulated rent prior to vacancy is [$2,500.00], or more, for any housing accommodation that is or becomes vacant after [June 24, 2011] but prior to [June 15, 2015] ...." (emphasis added). As the legal regulated rent of the subject premises prior to the vacancy of the prior tenant was not $2,500.00 or more, Respondent argues that N.Y.C. Admin. Code § 26–511(c)(14) precludes Petitioner from availing itself of the deregulation provision of N.Y.C. Admin. Code § 26–504.2.

Petitioner argues that N.Y.C. Admin. Code § 26–511(c)(14) merely spells out a specific exclusion to the Rent Stabilization Law when the tenant prior to the last vacancy received a preferential rent and the legal regulated rent was above the threshold at the time that tenant vacated, and that N.Y.C. Admin. Code § 26–511(c)(14) does not otherwise preclude a landlord from deregulating an apartment pursuant to N.Y.C. Admin. Code § 26–504.2(a). Petitioner's opposition as such raises a question about the purpose of the language of N.Y.C. Admin. Code § 26–511(c)(14) citing a rent of $2,500.00 for a prior tenancy, which the Legislature had not added to the statute until an amendment effective on June 15, 2015.⁴

N.Y.C. Admin. Code § 26–504.2(a), both in the language after the Legislature amended it in 2015 and in its language prior to the Legislature's amendment, permits deregulation of apartments that are vacant with lawful rents of at least $2,500.00. If, as Petitioner argues, the Legislature only intended 9 N.Y.C.R.R. § 26–511(c)(14) to state that a vacant apartment with a legal regulated rent exceeding $2,500.00 and a preferential rent would be deregulated, the Legislature need not have amended 9 N.Y.C.R.R. § 26–511(c)(14) to do so, as the plain language of 9 N.Y.C.R.R. § 26–504.2(a) had already permitted such deregulation.

The Court must presume that each word used in a statute expresses a distinct and different idea, Tonis v. Bd. of Regents, 295 N.Y. 286, 293, 67 N.E.2d 245 (1946), and that the Legislature inserted every provision of a statute for some useful purpose. McGowan v. Mayor of NY, 53 N.Y.2d 86, 95, 440 N.Y.S.2d 595, 423 N.E.2d 18 (1981), Albano v. Kirby, 36 N.Y.2d 526, 530, 369 N.Y.S.2d 655, 330 N.E.2d 615 (1975). Conversely, the Court cannot conclude that the Legislature deliberately placed a phrase in the statute which was intended to serve no purpose. Rodriguez v. Perales, 86 N.Y.2d 361, 366, 633 N.Y.S.2d 252, 657 N.E.2d 247 (1995), In re Guar. Tr. Co., 309 N.Y. 487, 495, 131 N.E.2d 896 (1956), People v. Dethloff, 283 N.Y. 309, 315, 28 N.E.2d 850 (1940). See Also Matter of N.Y. Cty. Lawyers' Ass'n v. Bloomberg, 95 A.D.3d 92, 101, 940 N.Y.S.2d 229 (1st Dept.2012) (Courts must avoid a construction rendering statutory language to be superfluous). The Court must further presume that the Legislature knows what statutes are in effect when enacting new laws. In re Adoption of Gerald T., 211 A.D.2d 17, 21, 625 N.Y.S.2d 509 (1st Dept.1995). Accordingly, the Court does not construe 9 N.Y.C.R.R. § 26–511(c)(14) to redundantly restate what 9 N.Y.C.R.R. § 26–504.2(a) already provided for. Canons of statutory construction compel the finding that 9 N.Y.C.R.R. § 26–511(c)(14) must have a distinct purpose.

The statute states that apartments with...