Malden v. Wykoff S.P., LLC

• Citation: 192 A.D.3d 1002,146 N.Y.S.3d 143
• Decision Date: 24 March 2021
• Docket Number: Index No. 510054/17,2019-00603
• Parties: Kristine MALDEN, et al., respondents-appellants, et al., plaintiffs, v. WYKOFF S.P., LLC, appellant-Respondent.
• Court: New York Supreme Court Appellate Division

192 A.D.3d 1002

146 N.Y.S.3d 143

Kristine MALDEN, et al., respondents-appellants, et al., plaintiffs,

v.WYKOFF S.P., LLC, appellant-Respondent.

2019-00603

Index No. 510054/17

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

Argued—January 5, 2021

March 24, 2021

Kucker Marino Winiarsky & Bittens, LLP, New York, N.Y. (Jason M. Frosch of counsel), for appellant-respondent.

Fred L. Seeman, New York, N.Y. (Peter Kirwin of counsel), for respondents—appellants.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory and injunctive relief, the defendant appeals, and the plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves cross appeal, from an order and judgment (one paper) of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated December 13, 2018. The order and judgment, insofar as appealed from, denied that branch of the defendant's motion which was for summary judgment on its counterclaim insofar as asserted against the plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves. The order and judgment, insofar as cross appealed from, upon an order of the same court, dated July 19, 2018, inter alia, granting that branch of the defendant's motion which was for an award of pendente lite use and occupancy against the plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and declaring that the subject building is not subject to and covered under the Rent Stabilization Law of 1969 by virtue of the Emergency Tenant Protection Act of 1974, and declared that the subject building is not subject to and covered under the Rent Stabilization Law of 1969 by virtue of the Emergency Tenant Protection Act of 1974.

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof granting those branches of the defendant's motion which were for summary judgment dismissing the first, second, third, and fourth causes of action and declaring that the subject building is not subject to and covered under the Rent Stabilization Law of 1969 by virtue of the Emergency Tenant Protection Act of 1974, and the provision declaring that the subject building is not subject to and covered under the Rent Stabilization Law of 1969 by virtue of the Emergency Tenant Protection Act of 1974, and substituting therefor a provision denying those branches of the defendant's motion; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, that branch of the defendant's motion which was for an award of pendente lite use and occupancy against the plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves is denied, the order dated July 19, 2018, is modified accordingly, one bill of costs is awarded to the plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves, payable by the defendant, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The plaintiffs Kristine Malden, Myles Bennett, Zach Weingart, and Matthew Chaves (hereinafter collectively the tenants), are tenants of two units on the third floor of the subject building, which is located in Brooklyn, and the plaintiffs Margo Lafontaine and Max Lemberger (hereinafter together the former tenants and, together with the tenants, the plaintiffs) are former tenants of a third unit located on the same floor. The subject building was previously owned by R.P.S. Properties, LLC (hereinafter RPS), and was sold by RPS to the defendant after this action was commenced. Before the plaintiffs moved into the subject building in 2010, the third floor was a former manufacturing space that had not been developed for residential use. According to the plaintiffs, when they moved into the subject building, RPS assisted them in converting the third floor into three residential units. Chaves, Bennett, and Weingart executed a lease with RPS for unit 3A, the former tenants executed a lease with RPS for unit 3B, and Malden executed a lease with RPS for unit 3C. The subject building did not have a certificate of occupancy for residential use.

In May 2017, the plaintiffs commenced this action against RPS, alleging, inter alia, that even though the subject building did not have a certificate of occupancy for residential use, their tenancies were subject to the protections of the Emergency Tenant Protection Act of 1974 (ETPA) ( McKinney's Uncons Laws of N.Y. § 8621 et seq. [L 1974, ch 576, § 4, as amended]), the Rent Stabilization Law of 1969(RSL) (Administrative Code of City of NY) § 26–501 et seq., and the Rent Stabilization Code (9 NYCRR) 2520.1 – 2531.9. The plaintiffs sought, inter alia, a judgment declaring that the subject building is subject to and covered under the RSL by virtue of the ETPA (hereinafter the first cause of action), an order directing the defendant to register the subject building with the New York State Division of Housing and Community Renewal (hereinafter the second cause of action) and issuing the plaintiffs rent-stabilized leases (hereinafter the third cause of action), as well as a judgment declaring that RPS was prohibited under Multiple Dwelling Law § 302(1) from collecting rent from the plaintiffs or from maintaining an action or proceeding for nonpayment of rent against them so long as the subject building lacked a certificate of occupancy pursuant to Multiple Dwelling Law § 301(1) (hereinafter the fourth cause of action). RPS answered the complaint and, among other things, asserted a counterclaim seeking to recover costs incurred in connection with the instant action, including reasonable attorney's fees, pursuant to the terms of the plaintiffs’ leases.

In March 2018, after the defendant purchased the subject building from RPS, the former tenants vacated unit 3B and surrendered all rights of occupancy and ownership to the defendant.

The defendant thereafter moved, inter alia, to direct the tenants to pay pendente lite use and occupancy starting from April 1, 2018 and continuing each month. In an order dated July 19, 2018, the Supreme Court granted that branch of the defendant's motion and awarded the defendant pendente lite use and occupancy each month beginning on August 1, 2018, in the amount of $3,500 from Bennett, Weingart, and Chaves, and in the amount of $3,500 from Malden.

Thereafter, the defendant moved, inter alia, for summary judgment dismissing the complaint, for a declaration that the subject building and the tenants’ units were not subject to and covered under the RSL by virtue of the ETPA, and for summary judgment on its counterclaim insofar as asserted against the tenants. In an order and judgment dated December 13, 2018, the Supreme Court granted that branch of the defendant's motion which was for summary...