Jenkins v. Fieldbridge Associates, LLC.

• Decision Date: 07 April 2009
• Docket Number: 2007-05279.
• Citation: 877 N.Y.S.2d 375,2009 NY Slip Op 02751,65 A.D.3d 169
• Parties: FREDDIE JENKINS, Appellant, v. FIELDBRIDGE ASSOCIATES, LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 169

877 N.Y.S.2d 375

2009 NY Slip Op 02751

FREDDIE JENKINS, Appellant, v. FIELDBRIDGE ASSOCIATES, LLC, Respondent.

2007-05279.

Appellate Division of the Supreme Court of New York, Second Department.

Decided April 7, 2009.

Wenig Saltiel Greene & Mundy, LLP, Brooklyn (Marnie R. Kudon of counsel), for appellant.

Stern & Stern, Brooklyn, for respondent.

South Brooklyn Legal Services, Brooklyn (John C. Gray and Edward Josephson of counsel), amicus curiae.

OPINION OF THE COURT

COVELLO, J.

In the instant action, the plaintiff, a tenant living in a rent-stabilized apartment, filed a rent overcharge complaint in which he alleged that the owner improperly charged and collected rent greater than the legal regulated rent fixed by a rent reduction order in effect within the four-year period preceding the filing of the complaint, but issued prior to that period. The question presented is whether the Civil Court of the City of New York, Kings County (hereinafter the Civil Court), faced with a statutory proscription against the examination of the "rental history" of the apartment prior to the four-year period preceding the filing of the complaint (CPLR 213-a), properly considered the rent reduction order in determining the existence and amount of a rent overcharge. We answer the question in the affirmative.

On May 12, 1993, numerous tenants living in rent-stabilized apartments in an apartment building complex located in Brooklyn filed an administrative complaint against the owner of the complex with the New York State Division of Housing and Community Renewal (hereinafter the DHCR). Alleging that the owner failed to provide certain required services, the tenants sought to have their rent reduced.

In a rent reduction order effective June 1, 1993, a DHCR Rent Administrator found that the owner failed to provide certain required services, reduced the legal regulated rent on each apartment, and prohibited the owner from charging or collecting any rent increases until the DHCR issued a rent restoration order. The Rent Administrator did not fix the legal regulated rent on the apartments at particular amounts, but rather, indicated that the legal regulated rent on each apartment was "reduced to the level in effect prior to the most recent [rent] guidelines increase for the tenant's lease which commenced before" June 1, 1993.

The plaintiff was one of the complaining tenants. Pursuant to the rent reduction order, the legal regulated rent on his apartment was, in effect, fixed at $375.44 per month. However, the plaintiff, unaware of the issuance of the rent reduction order, entered into a series of leases requiring him to pay greater rent.

On or about February 26, 2002, the plaintiff, who learned about the rent reduction order a few months prior, commenced the instant action against the owner in the Civil Court, seeking to recover rent overcharges and treble damages. The plaintiff alleged that the owner willfully charged and collected rent greater than the legal regulated rent fixed by the rent reduction order, which, although more than seven years old at this point, was still in effect.

The Civil Court, taking the rent reduction order into account, awarded the plaintiff summary judgment on his cause of action to recover rent overcharges. The matter then proceeded to a hearing, after which the Civil Court found that the owner willfully charged and collected from the plaintiff rent greater than the legal regulated rent fixed by the rent reduction order. The Civil Court then calculated the overcharges and treble damages due the plaintiff based on the legal regulated rent fixed by the rent reduction order, i.e., $375.44 per month. The owner appealed.

On appeal, the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts reversed a judgment entered in favor of the plaintiff and against the owner, and remitted the matter to the Civil Court for, among other things, a recalculation of the rent overcharges and treble damages due the plaintiff based on the rent on the plaintiff's apartment as stated by the owner in a registration statement filed with the DHCR four years prior to the filing of the complaint, i.e., $449.68 per month (see Jenkins v Fieldbridge Assoc. LLC, 15 Misc 3d 6, 7-8 [2007]). However, the Appellate Term erred in so doing, as the Civil Court properly considered the rent reduction order, and properly calculated the overcharges and treble damages due the plaintiff based on the legal regulated rent fixed by that order.

A rent overcharge claim, whether made in a judicial or administrative forum, is subject to a four-year statute of limitations (see CPLR 213-a; Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a] [2]). In addition to limiting the time in which such a claim can be asserted, the Legislature has also limited the evidence that a court and the DHCR may consider in determining that claim. In this regard, CPLR 213-a, as amended by the Rent Regulation Reform Act of 1997 (see L 1997, ch 116, § 34), precludes a court from examining the "rental history" of a housing accommodation prior to the four-year period preceding the filing of the rent overcharge complaint (see Myers v Frankel, 292 AD2d 575, 576 [2002]). Rent Stabilization Law (Administrative Code of City of NY) § 26-516 (a) (2), as amended by the same act (see L 1997, ch 116, § 33), precludes the DHCR as well from examining that period of rental history (see Matter of Anderson v Lynch, 292 AD2d 603, 604 [2002]; Matter of Silver v Lynch, 283 AD2d 213, 214 [2001]; Matter of Sessler v New York State Div. of Hous. & Community Renewal, 282 AD2d 262 [2001]; Matter of Pechock v New York State Div. of Hous. & Community Renewal, 253 AD2d 655 [1998]). The term "rental history" is not defined by statute or regulation.

Where, as here, a tenant living in a rent-stabilized housing accommodation, such as the plaintiff, alleges in a rent overcharge complaint that the owner improperly charged and collected rent greater than the legal regulated rent fixed by a rent reduction order in effect within the four-year period preceding the filing of the complaint, but issued prior to that period, a court is faced with "apparently irreconcilable commands" (Matter of Ador Realty, LLC v Division of Hous. & Community Renewal, 25 AD3d 128, 132 [2005]). On one hand, it would appear that the court cannot consider the order, as the order, seemingly part of the rental history of the housing accommodation, was issued more than four years prior to the filing of the complaint (see CPLR 213-a). Yet, it would also appear that the court is required to enforce the order and, thus, consider the legal regulated rent fixed by that order when determining the existence and amount of a rent overcharge, as Rent Stabilization Law (Administrative Code of City of NY) § 26-514 imposes a continuing duty on an owner subject to a rent reduction order to charge and collect the reduced legal regulated rent until the DHCR finds that all required services are being provided and issues a rent restoration order authorizing the owner to charge and collect the actual legal regulated rent (see Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424, 425 [2004]; Thelma Realty Co. v Harvey, 190 Misc 2d 303, 305-306 [2001]; Hollis Realty Co. v Glover, 179 Misc 2d 522, 526 [1999])....