57 Elmhurst, LLC v. Williams

• Decision Date: 20 April 2020
• Docket Number: Index No. L & T 57293/19
• Citation: 57 Elmhurst, LLC v. Williams, 68 Misc.3d 215, 124 N.Y.S.3d 125 (N.Y. Civ. Ct. 2020)
• Parties: 57 ELMHURST, LLC, Petitioner-Landlord, v. Asia WILLIAMS, Charles Whitfield, Respondents-Tenants, "John Doe" & "Jane Doe," Respondents-Under- Tenants.
• Court: New York Civil Court

68 Misc.3d 215

124 N.Y.S.3d 125

57 ELMHURST, LLC, Petitioner-Landlord,

v.Asia WILLIAMS, Charles Whitfield, Respondents-Tenants,"John Doe" & "Jane Doe,"Respondents-Under- Tenants.

Index No. L & T 57293/19

Civil Court, City of New York, Queens County.

Decided on April 20, 2020

Curtis Harger, Esq., 166-07 Hillside Avenue, Suite #1, Jamaica, NY 11432, Attorneys for Petitioner

Bohee Rhee, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435, Attorneys for Respondent

Clinton J. Guthrie, J.

The decision and order on Respondent's motion for discovery is as follows:

PROCEDURAL HISTORY

In this nonpayment proceeding, the Petition alleges that the subject apartment, located at 94-25 57th Avenue, AptNo. 5X, Elmhurst, New York 11373, is subject to the Rent Stabilization Law (RSL) of 1969, as amended, and that the rent does not exceed the legal regulated rent determined in compliance with the RSL.Initially, Petitioner moved by order to show cause to amend the body of the Petition to includeCharles Whitfield and for a default judgment.On the return date of the order to show cause, June 4, 2019, RespondentsAsia Williams and Charles Whitfield appeared pro se and entered into a stipulation of settlement with Petitioner, who was represented by counsel.According to the terms of the June 4th stipulation, the body of the Petition was amended to include Charles Whitfield, nunc pro tunc .In addition, Respondents agreed to a judgment in the amount of $5,700.00, all rent due at the time following a $1,700.00 payment in court, and issuance of a warrant of eviction.

In July 2019, after receiving a marshal's notice of eviction, Charles Whitfield filed an Order to Show Cause seeking additional time to pay the rents due.On the return date of the Order to Show Cause, the Court granted it to the extent of staying execution of the warrant for payments on July 30th, August 15th, and August 30th.Thereafter, on August 12, 2019, RespondentAsia Williams, through counsel(Queens Legal Services, appearing through the Universal Access to Counsel program), filed an order to show cause to vacate the June 4, 2019 stipulation, to vacate the judgment and warrant, and to interpose an answer (which includes a rent overcharge defense).After the order to show cause was fully briefed and argued, the Court rendered a Decision/Order on November 1, 2019, which granted the order to show cause to the extent of vacating the June 4, 2019 stipulation, vacating the judgment and warrant, and permitting interposition of the answer.The proceeding was restored to the Part A calendar on December 3, 2019.Prior to this date, Ms. Williams, through counsel, moved for discovery.On December 3rd, the parties executed a stipulation whereby Ms. Williams agreed to vacate the premises by December 6, 2019 and the matter was adjourned to January 15, 2020 for service of opposition to the motion for discovery and reply.On January 15, 2020, the Court heard argument on the motion for discovery and reserved decision.

ANALYSIS

Under CPLR § 408(which applies to special proceedings), "leave of court shall be required for disclosure except for a [notice to admit]."The standard that has developed for obtaining leave of court is "ample need," which is predicated on the demonstration of the six factors first set out in New York University v. Farkas , 121 Misc. 2d 643, 468 N.Y.S.2d 808(Civ. Ct. N.Y. County1983).The factors are as follows: (1) whether the party seeking discovery has asserted facts to establish a cause of action; (2) whether there is a need to determine information directly related to the cause of action; (3) whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts; (4) whether prejudice will result from the granting of an application for disclosure; (5) whether the prejudice can be diminished or alleviated by an order fashioned by the court for this purpose; and (6) whether the court, in its supervisory role can structure discovery so that pro se tenants, in particular, will be protected and not adversely affected by discovery requests.Farkas , 121 Misc. 2d at 647, 468 N.Y.S.2d at 811-812.

Respondent's motion seeks production of documents grouped into two categories.The documents are sought in connection with her overcharge defense.The first category calls for "[a]ll leases and lease riders, annual rent registrations, and rent breakdowns for the subject apartment for the years 2011 to present, including a complete copy of the prior tenant's leases and documents executed in connection therewith."According to Respondent's motion, the need for documents dating to 2011 is justified because of alleged inconsistencies in the DCHR rent registration history for the subject premises.Specifically, multiple tenants, with varying rents, are registered for lease periods spanning from 2011 through 2013.Carmen Colmenares is registered with a legal rent of $886.47 for a lease term of January 1, 2011 through December 31, 2012.Natalia Moreno and Socorro Barona are then registered with a legal rent of $1,100.00 and a preferential rent of $100.00 for a lease term of January 1, 2011 through December 31, 2012; thereafter, Moreno and Barona are registered with a legal rent of $1,100.00 and a preferential rent of $1,000.00 for a lease term of October 1, 2011 through September 30, 2013.

As this Court previously noted in its Decision/Order deciding Ms. Williams' earlier order to show cause, the Housing Stability and Tenant Protection Act (HSTPA) of 2019 included an amendment of NYC Admin. Code§ 26-516(h), which requires that DHCR and the courts"consider all available rent history which is reasonably necessary to make such determinations [of overcharge and determination of legal regulated rents], including but not limited to: (i) any rent registration or other records filed with the state division of housing and community renewal, or any other state, municipal or federal agency, regardless of the date to which the information on such registration refers; (ii) any order issued by any state, municipal or federal agency; (iii) any records maintained by the owner or tenants; and (iv) any public record kept in the regular course of business by any state, municipal or federal agency."This amendment was included in Part F of the HSTPA, which was to apply "to any claims pending or filed on or after" the effective date of the statute(June 14, 2019).SeeLaws 2019, ch 36 at Part F, § 7.However, the Court of Appeals, in Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal , 2020 N.Y. Slip Op. 02127, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 WL 1557900(2020), recently held that retroactive application of the Part F overcharge provisions is unconstitutional (under the Due Process clauses of the US and New York constitutions).¹

Since the overcharges that are alleged to have occurred between 2011 and 2013 are outside the 4-year statute of limitations² that has been effectively reinstated as a result of the Matter of Regina Metro. Co., LLC decision, the Court must assess whether Respondent has asserted facts to establish a "fraudulent scheme to deregulate the apartment."SeeMatter of Regina Metro. Co., LLC , 2020 N.Y. Slip Op. 02127, at *5, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––;see also former Rent Stabilization Law (RSL) § 26-516(a)(2); former CPLR § 213-a;Conason v. Megan Holding, LLC , 25 N.Y.3d 1, 6 N.Y.S.3d 206, 29 N.E.3d 215(2015);Matter of Grimm v. State of NY Div. of Hous. & Community Renewal Off. of Rent Admin. , 15 N.Y.3d 358, 912 N.Y.S.2d 491, 938 N.E.2d 924(2010).Respondent seeks discovery for the 2011-2013 period solely on the basis of irregularities in the DHCR rent registration history for the subject apartment.Respondent does not specifically allege that a fraudulent scheme to deregulate the apartment occurred.

In Matter of Boyd v. New York State Div. of Hous. and Community Renewal , 23 N.Y.3d 999, 1000-1001, 992 N.Y.S.2d 764, 16 N.E.3d 1243(2014), the Court of

Appeals reversed the Appellate Division, First Department, holding that "tenant failed to set forth sufficient indicia of fraud to warrant consideration of the rental history beyond the four-year statutory period"(citingMatter of Grimm , 15 N.Y.3d at 366-367, 912 N.Y.S.2d 491, 938 N.E.2d 924 ).The Appellate Division decision in Matter of Boyd,110 A.D.3d 594, 973 N.Y.S.2d 609(1st Dep't2013) noted that the rent increased from $572 to $1,750 in 2004, which would have required approximately $39,000 in individual apartment improvements (IAIs) to justify the increase; the tenant there specifically described the condition of the apartment when she moved in and the owner did not submit any evidence "rebutting petitioner's claim that the IAIs were minimal and cost far less than claimed."110 A.D.3d at 594-595, 973 N.Y.S.2d 609.Nonetheless, the Court of Appeals held that this was insufficient to demonstrate fraud.Conversely, in Conason , sufficient evidence of fraud included a utility company witness's testimony about service when a purported tenant was in possession, a superintendent's testimony denying knowledge of the purported tenant, and the landlord's own testimony that he possessed no records of the purported tenant's tenancy.Conason , 25 N.Y.3d at 8-9, 6 N.Y.S.3d 206, 29 N.E.3d 215.

Here, Respondent does not offer any affirmative evidence of fraud, other than the DHCR rent registration history.Although the Court notes and does not condone the irregularities therein, it is nonetheless bound by the holdings in Matter of Regina Metro. Co., LLC , Matter of Boyd , and Matter of Grimm .See generallyRegina Metro. Co., LLC , 2020 N.Y. Slip Op. 02127, at *7, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––("[I]t is clear from Boyd that use of a potentially inflated base date rent, flowing from an overcharge predating the limitations and lookback period, was proper in...