Kostic v. N.Y.S. Div. of Hous. & Cmty. Renewal

• Decision Date: 19 November 2020
• Docket Number: Case No. 2019-00366,12429,Index No. 152243/17,100290/17
• Citation: 137 N.Y.S.3d 297,188 A.D.3d 569
• Parties: In re Isabelle KOSTIC, Petitioner–Respondent, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent, Amdar Company LLC, Respondent–Appellant. In re Amdar Company, LLC, Petitioner–Appellant, v. New York State Division of Housing and Community Renewal, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 569

137 N.Y.S.3d 297

In re Isabelle KOSTIC, Petitioner–Respondent,

v.NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent,Amdar Company LLC, Respondent–Appellant.

In re Amdar Company, LLC, Petitioner–Appellant,

v.New York State Division of Housing and Community Renewal, et al., Respondents–Respondents.

12429

Index No. 152243/17

100290/17

Case No. 2019-00366

Supreme Court, Appellate Division, First Department, New York.

ENTERED: November 19, 2020

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP, New York (Serge Joseph of counsel), for Isabelle Kostic, respondent.

Mark F. Palomino, New York (Dawn Ivy Schindelman of counsel), for New York State Division of Housing and Community Renewal, respondent.

Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.) entered July 5, 2018, which, insofar as appealed from, denied the petition of Amdar Company LLC (Amdar) under index No. 100290/17 to annul a determination (the Determination) of respondent New York State Division of Housing and Community Renewal (DHCR), dated January 11, 2017, that the subject apartment was subject to rent stabilization and that Amdar had charged excessive rent, and granted the petition of petitioner Isabelle Kostic under index No. 152243/17 to annul the Determination to the extent it utilized an allegedly improper base date for calculation of the legal regulated rent and failed to impose treble damages, unanimously modified, on the law, to the extent of denying Kostic's petition and dismissing that proceeding brought pursuant to CPLR article 78, and otherwise affirmed, without costs

Regardless of its age, an apartment's rent history is always subject to review to determine whether a unit is rent-stabilized ( Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 351 n 4, 130 N.Y.S.3d 759, 154 N.E.3d 972 [noting critical difference between overcharge claim and challenge to deregulated status], 360 [upholding declaration that apartment is rent stabilized based upon history preceding lookback period notwithstanding that there may be no money damages] [2020]; Fuentes v. Kwik Realty, 186 A.D.3d 435, 437, 130 N.Y.S.3d 16 [1st Dept. 2020] ; Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189, 199, 928 N.Y.S.2d 515 [1st Dept., 2011], app withdrawn 18 N.Y.3d 954, 944 N.Y.S.2d 482, 967 N.E.2d 707 [2012] ).

Owner Amdar bore the burden before DHCR of showing that the subject apartment was properly...