Anderson v. Sanchez

• Decision Date: 07 April 2020
• Docket Number: L & T Index No.: 10702/19
• Citation: 68 Misc.3d 436,123 N.Y.S.3d 433
• Parties: ANDERSON A TO ANDERSON G LLC, Petitioner, v. Guillermo Obergh SANCHEZ, Respondent.
• Court: New York Civil Court

68 Misc.3d 436

123 N.Y.S.3d 433

ANDERSON A TO ANDERSON G LLC, Petitioner,

v.Guillermo Obergh SANCHEZ, Respondent.

L & T Index No.: 10702/19

Civil Court, City of New York, Bronx County.

Decided on April 7, 2020

For Respondent, The Legal Aid Society, Attorneys for Respondent, Attn: Michael Fusilli, 1118 Grand Concourse, Room 250, Bronx, NY 10456

For Petitioner, Todd Rothenberg, Esq., 271 North Avenue Suite 115, New Rochelle, NY 10801

Bryant Tovar, J.

The decision and order on this motion is as follows:

BACKGROUND & PROCEDURAL POSTURE

The Petitioner, Anderson A To Anderson G LLC, ("Petitioner"), commenced this summary nonpayment proceeding against Guillermo Obergh Sanchez, ("Respondent"), in February of 2019. The Petition seeks unpaid rent in the amount of $4,968.51, and alleges the subject premises are subject to Rent Stabilization. Respondent filed a pro se answer and the matter was made returnable on March 26, 2019. Respondent's answer asserts that the rent has been paid or partially paid to the Petitioner and a warranty of habitability defense.

Both sides are represented by counsel in this proceeding.

Respondent moves for leave to file an amended answer pursuant to CPLR § 3025. The Respondent seeks summary judgment pursuant to CPLR § 3212(e) based on Respondent's First Affirmative Defense and First Counterclaim of overcharge in violation of a Rent Reduction Order("RRO"). Respondent also seeks summary judgment on the second defense of rent overcharge based on an incorrect legal regulated rent and First Counterclaim.

The Respondent further seeks an Order for a Housing Court inspection of the subject premises and an order pursuant to New York City Civil Court Act § 110(c), RPL § 235-b (1) and the Housing Maintenance Code to repair all violations in Respondent's apartment.

In the alternative, Respondent seeks dismissal pursuant to CPLR § 3211 for failure to provide a rent demand with a good faith approximation as required by RPAPL § 711(2).

Amending the Answer

CPLR § 3025(b) provides that leave to amend a pleading shall be freely given upon such terms as may be just. ( Norwood v. City of New York , 203 A.D.2d 147, 148-149, 610 N.Y.S.2d 249 [1st Dept. 1994] ). Amendment can be made at any time, especially where there is not significant prejudice to the opposing party. ( National Union Fire Ins. Co. v. Schwartz , 209 A.D.2d 289, 290, 619 N.Y.S.2d 542 [1st Dept. 1994] ). In the instant proceeding, the proposed Amended Answer contains meritorious defenses including overcharge and warrant of habitability. ( Thomas Crimmins Contracting Co. v. New York , 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097 [1989] ).

Petitioner argues prejudice if Respondent is permitted to amend the answer. The court cannot credit petitioner's claims of prejudice. Prejudice in the context of permitting the submission of an amended pleading is shown where the nonmoving party is "hindered in the preparation of his case or has been prevented from taking some measure in support of his position." ( Loomis v. Civetta Corinno Constr. Corp. , 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981] ; Jacobson v. McNeil Consumer & Specialty Pharmaceuticals , 68 A.D.3d 652, 654-655, 891 N.Y.S.2d 387 [1st Dept. 2009] ["Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to expend additional time preparing its case."] [internal citations omitted] ). Petitioner's non-specific allegations of prejudice are unsupported. Accordingly, Respondent's motion to file the Amended Answer is granted and the proposed Amended Answer is deemed served and filed.

Argument

Respondent seeks a finding of overcharge and treble damages against the Petitioner on several bases. Respondent moved in to the subject premises pursuant to a rent stabilized lease commencing January 1, 2013, and ending December 31, 2014.¹ This initial lease states a legal regulated rent of $1,586.61 and a preferential rent of $1,322.18. A subsequent lease² commencing January 1, 2015, with a purported prior legal rent of $2,791.72 and new legal rent for one year of $2,819.64 and a two-year rate of $2,868.49 was then executed. The lease was executed at a two-year preferential rate of $1,398.95 per month. The parties executed several subsequent leases.³ The last lease executed between the parties commenced on August 1, 2018, and terminated December 31, 2019, with a legal regulated rent of $2,876.03 and a preferential rent of $1,700.02. This last lease is the only lease registered with the Division with the Housing Community and Renewal of the State of New York ("DHCR") during Respondent's entire tenancy.

The Respondent moves for partial summary judgment based on Petitioner's failure to comply with a DHCR Rent Reduction Order ("RRO") effective May 1, 2018, which currently remains in effect. The RRO was issued for the subject premises on December 5, 2018. The order,⁴ effective May 1, 2018, "reduced the legal regulated rent to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced prior to the effective date of the order."

The Respondent argues that Petitioner is precluded from collecting above $1,322.18, which was the rent agreed to by the parties in the original 2013 lease. It is proffered that all subsequent leases executed between the parties were improper as they were not offered under the same terms on conditions as the original lease. Specifically, the increase in the legal regulated rent from $1,586.61 in the initial lease between the parties to $2,868.49 in the subsequent lease - an increase of almost one hundred percent - remains unexplained by Petitioner.

Respondent seeks a finding of overcharge, as Petitioner failed to register the leases and corresponding rents with DHCR.⁵ Prior to the commencement of the Respondent's tenancy, the subject premises were registered with a legal rent of $1,996 and a preferential rent of $1,322.18, in 2012. The subsequent registration, which marks the commencement of Respondent's tenancy, registered the subject premises as exempt due to high rent vacancy. The apartment is then registered as exempt for each subsequent year through 2018. In 2018, the apartment is registered as rent stabilized with the Respondent as the tenant and a lease commencing February 5, 2019, with a legal regulated rent of $2,876.03.

Petitioner's opposition provides no explanation for the almost $1,300 increase in the legal regulated rent for the subject premises from the initial 2013 lease executed by the parties and the subsequent lease which commenced on January 1, 2015. Petitioner also fails to justify its failure to register rents with DHCR for the subject apartment consistent with the leases executed during Respondent's tenancy. Petitioner's opposition regarding adherence to the RRO is merely to restate its language. The Order "reduces the rent to the level in effect prior to the most recent guidelines increase for the tenant's lease which commenced before the effective date of this Order." Petitioner argues that the legal regulated rent in effect prior to the reduction order was $2,819.64, as was stated in the lease commencing January 1, 2016, and that this is the amount that Petitioner was entitled to charge pursuant to the Rent Reduction Order. In the alternative, should the court find the 2013 lease governs, the Petitioner states that any overcharge should be limited to any amount charged in excess of $1,586.61, as the initial legal regulated rent set forth by the parties' initial lease rather than $1,322.18, the preferential rent agreed to by the parties in that same lease.

Petitioner also opposes Respondent's motion for summary judgment under the doctrine of res judicata and collateral estoppel. In a prior proceeding under L/T index No. 28678/18, the Respondent, without the representation of counsel, entered into an agreement⁶ in which he agreed to a two-year lease commencing August 1, 2018, with a preferential rent of $1,700.00. Curiously, this agreement is marked without prejudice and makes no mention of any prior improper DHCR registrations or any existing or potential overcharge claims. Petitioner argues that this agreement precludes Respondent from now arguing overcharge.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law and tender sufficient evidence in admissible form demonstrating the absence of material issues of fact. ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; CPLR § 3212 [b] ). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the 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] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." ( Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003] ; see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; CPLR § 3212 [b] ).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues. ( Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). The Court must view the evidence in the light most favorable to the nonmoving party and give the nonmoving party the benefit...