Kreisler v. B-U Realty Corp.

Decision Date13 September 2018
Docket NumberIndex 161021/14,6876
Citation164 A.D.3d 1117,83 N.Y.S.3d 442
Parties Stuart KREISLER, et al., Plaintiffs–Respondents, v. B–U REALTY CORP., et al., Defendants–Appellants.
CourtNew York Supreme Court — Appellate Division

Sidrane & Schwartz–Sidrane, LLP, Rockville Centre (Arun Perinbasekar of counsel), for appellants.

Ephron–Mandel & Howard, LLP, New York (Damon P. Howard of counsel), for respondents.

Acosta, P.J., Manzanet–Daniels, Tom, Mazzarelli, Moulton, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered May 12, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for summary judgment to declare that defendants engaged in a fraudulent scheme to remove plaintiff's apartment from rent regulation; directed the Special Referee to calculate the legal regulated rent by using the default formula set forth in 9 NYCRR § 2522.6 ; and denied defendants' cross motion to dismiss the complaint under CPLR 3211(a)(2), unanimously affirmed, with costs.

Supreme Court properly declined to dismiss on subject matter jurisdiction grounds. Where, as here, a landlord has engaged in fraud in initially setting the rent or removing an apartment from rent regulation, the court may examine the rental history for an apartment (see Altschuler v. Jobman 478/480, LLC., 135 A.D.3d 439, 440, 22 N.Y.S.3d 427 [1st Dept. 2016], lv denied 29 N.Y.3d 903, 2017 WL 1169209 [2017] ) and, moreover, may do so beyond the statutory period allowed by CPLR 213–a ( Matter of Grimm v. State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 N.Y.3d 358, 366–367, 912 N.Y.S.2d 491, 938 N.E.2d 924 [2010] ). Moreover, defendants' arguments regarding the legality of the initial rent ring hollow in light of their repeated admissions, in the course of the proceedings below, that the initial rent was wrong.

The court also properly retained jurisdiction over the rent overcharge issues rather than referring these to DHCR, given that legal issues remain open, including the willfulness of defendants' rent overcharges ( Dugan v. London Terrace Gardens, L.P., 101 A.D.3d 648, 955 N.Y.S.2d 873 [1st Dept. 2012] ).

The record reflects evidence of a fraudulent scheme to deregulate plaintiffs' apartment, as well as other apartments in the building, including evidence of defendants' failure, while in receipt of J–51 tax benefits, to notify plaintiffs their apartment was protected by rent stabilization laws or to issue them a rent-stabilized lease, and further reflects that defendants only addressed the issue when their conduct, which violated Roberts v. Tishman Speyer Props. L.P. , 13 N.Y.3d 270, 890 N.Y.S.2d...

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17 cases
  • Aras v. B-U Realty Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • October 3, 2023
    ...Tishman Speyer Props., L.P. , 13 N.Y.3d 270, 890 N.Y.S.2d 388, 918 N.E.2d 900 (2009) by 2011;1 (2) in ( Kreisler v. B-U Realty Corp. , 164 A.D.3d 1117, 83 N.Y.S.3d 442 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1090, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018] ), this Court found that these same ......
  • Montera v. KMR Amsterdam LLC
    • United States
    • New York Supreme Court — Appellate Division
    • February 9, 2021
    ...To the contrary, our jurisprudence holds that an owner may not flout the teachings of Roberts. In Kreisler v. B–U Realty Corp., 164 A.D.3d 1117, 83 N.Y.S.3d 442 (1st Dept. 2018), lv dismissed 32 N.Y.3d 1090, 90 N.Y.S.3d 636, 114 N.E.3d 1089 (2018), we affirmed Supreme Court's declaration th......
  • Tribbs v. 326-338 E 100th LLC
    • United States
    • New York Supreme Court
    • July 15, 2019
    ...in motion sequence number 003. (Hess v EDR Assets LLC, 171 AD3d 498, 95 NYS3d 805 [1st Dept 2019], citing, Kreisler v B-U Realty Corp., 164 A.D.3d 1117, 83 N.Y.S.3d 442 [1st Dept 2018], lv dismissed 32 N.Y.3d 1090, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018]; Dugan v London Terrace Gardens, L.P......
  • People v. Holmes
    • United States
    • New York Supreme Court — Appellate Division
    • September 13, 2018
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