Draper v. GEORGIA PROPERTIES INC.
Decision Date | 23 November 1999 |
Citation | 701 N.Y.S.2d 322,94 N.Y.2d 809,723 N.E.2d 71 |
Parties | PAMELA A. DRAPER, Respondent, v. GEORGIA PROPERTIES, INC., Appellant. |
Court | New York Court of Appeals Court of Appeals |
Graubard Mollen & Miller, New York City (Scott E. Mollen and John P. Sheridan of counsel), for appellant.
Fromme Schwartz Newman & Cornicello, L. L. P., New York City (Peter A. Schwartz and Anthony J. Cornicello of counsel), for respondent.
The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.
This is a rent overcharge action in which the plaintiff tenant seeks recovery of rents paid in excess of the prior stabilized rate, and accompanying statutory damages. The appeal, as of right on a two-Justice dissent from the prior nonfinal order, is brought by the defendant landlord, Georgia Properties, Inc.
The landlord argues that the tenant was wrongly awarded summary judgment. It complains that it was not given an opportunity to conduct discovery concerning the tenant's primary residence status, especially since their lease stated that the tenant would not use the apartment as her primary residence. The tenant counters that the landlord proposed that she had to sign the lease and rider in the form the landlord presented to her, which included the false representation that the apartment would not be her primary residence.
Rent Stabilization Code § 2525.3 (b) prohibits an owner from requiring a prospective tenant "to represent or agree as a condition of renting a housing accommodation that the housing accommodation shall not be used as the * * * prospective tenant's primary residence" (9 NYCRR 2525.3 [b]). Moreover, Rent Stabilization Code § 2520.13 provides that "[a]n agreement by the tenant to waive the benefit of any provision of the [Rent Stabilization Law] or this Code is void" (9 NYCRR 2520.13).
Taken together, these prohibitions bar a landlord from securing a lease on the condition of a tenant's acquiescence in a representation of non-primary residence usage. De-regulation of apartments is otherwise available through regular, officially authorized means (see generally, Rent Stabilization Law [Administrative Code of City of NY] § 26-503), not by private compact as was attempted here—a means expressly forbidden.
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