Fiya RSD Partners, LLC v. Lee

• Decision Date: 26 April 2016
• Docket Number: No. 60200/15.,60200/15.
• Citation: 41 N.Y.S.3d 449 (Table)
• Parties: FIYA RSD PARTNERS, LLC, Petitioner v. Eleanor LEE, Respondents.
• Court: New York Civil Court

41 N.Y.S.3d 449 (Table)

FIYA RSD PARTNERS, LLC, Petitioner
v.
Eleanor LEE, Respondents.

No. 60200/15.

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

April 26, 2016.

Fischman & Fischman, for Petitioner.

Northern Manhattan Improvement Corporation Legal Services, by Matthew Chachere, for Respondent.

MARIA MILIN, J.

Recitation as required by CPLR 2219(A), of the papers considered in review of these motions:

Notice of Motion and Annexed Affidavit	1–3
Notice of Cross Motion and Answering Affidavits	18–20
Reply Affidavits	24, 25; 38; 40; 42
Exhibits	4–17; 21–23; 26–37; 39; 41; 43–45
Memo of Law	46, 47

Respondent's motion for summary judgment on her first two counterclaims and petitioner's cross-motion to discontinue are both granted. Petitioner's summary eviction proceeding on the ground that respondent failed to sign a renewal lease as offered on or about August 30, 2014 is hereby discontinued with prejudice. A party may not generally be compelled to litigate (Burnham Service Corp. v. Ntl. Council on Compensation Ins., Inc., 288 A.D.2d 31, 732 N.Y.S.2d 223 [1st Dept.2001] ).

Respondent's counterclaims, however, will not be dismissed merely because the petition is permitted to be discontinued (Siegel, David D., Prac. Comm. McKinney's Cons.Laws of NY, Book 7B, CPLR § 3217:14; counter-claims may be reserved notwithstanding the grant of leave to discontinue the main claim). During the term of this respondent's tenancy some of the core provisions of the Rent Stabilization scheme were violated and respondent will not be denied her choice of forum simply because of the discontinuance.

The relevant facts are not in dispute. The legal regulated rent for the subject premises was reduced by order of the DHCR effective June 1, 1985. The rent was not restored until August 1, 2015. Respondent took possession in September 2011 pursuant to a written lease. The lease indicated that the apartment was not subject to rent regulation, however, the apartment was rent stabilized. The previous owner registered the apartment with DHCR as such. Nevertheless, the respondent was charged and she paid a rent in excess of the legal regulated rent.

Once the moving party establishes entitlement to a judgment, the burden shifts to the opposing party to show a question of fact exists which requires a trial (Kosson v. Algaze, 84 N.Y.2d 1019 [1995] ). Here, petitioner contends that the motion must be denied for a number of reasons.

Petitioner argues, in the first instance, that no overcharge award should be granted to respondent because prior to her occupancy there was a substantial renovation of the subject apartment. According to petitioner, because the underlying purpose of the rent reduction order has been met by a correction of the conditions which caused the order, petitioner should not be held liable for the predecessor owner's inadvertent failure to file for a rent restoration order.

This argument is without merit. The calculation of the overcharge in this proceeding must take into account the rent reduction order which was in effect until August 1, 2015. Rent restoration is permitted only upon a determination by the DHCR that a landlord is entitled to restoration (130 E 18th LLC v. Mitchell, 50 Misc.3d 55, 23 N.Y.S.3d 530 [App. T. 2nd Dept 2015] ).

Petitioner further contends that respondent is not entitled to judgment because, in the absence of a claim for fraud, an examination of the rental history prior to the four year period immediately preceding the filing is strictly prohibited by statute.

This argument is also without merit. Rent reduction orders impose a continuing obligation on a landlord and if a rent reduction order is still in effect during the four year period, the order is a part of the rental history which must be considered (Matter of Cintron v. Calogero, 15 N.Y.3d 347 [2010] ).

Petitioner further contends that when a property changes hands by judicial sale or mortgage foreclosure, a subsequent owner is not liable for overcharges or treble damages. To take advantage of this defense however, the subsequent owner has the obligation to submit evidence showing that sufficient records to...