Najera-Ordonez v. 260 Partners

• Decision Date: 11 August 2022
• Docket Number: Index Nos. 160546/2017,003
• Citation: 2022 NY Slip Op 32740 (U)
• Parties: JORGE A NAJERA-ORDONEZ et al. v. 260 PARTNERS L.P. et al.
• Court: New York Supreme Court

2022 NY Slip Op 32740(U)

JORGE A NAJERA-ORDONEZ et al.
v.
260 PARTNERS L.P. et al.

Index Nos. 160546/2017, 003

Supreme Court, New York County

August 11, 2022

Unpublished Opinion

HON.LYNN R. KOTLER, J.S.C.

The following papers were read on this motion to/for sj

Notice of Motion/Petition/O.S.C. - Affidavits - Exhibits ECFS Doc. No(s). _____

Notice of Cross-Motion/Answering Affidavits - Exhibits ECFS Doc. No(s). ____

Replying Affidavits ECFS ___ Doc. No(s). ____

This is a class action alleging Roberts v Tishman Speyer Props., L.P. (13 N.Y.3d 270 [2009]) type J- 51 rent overcharges. Plaintiffs now move for summary judgment in their favor and to dismiss defendants' affirmative defenses and counterclaims. Defendants oppose the motion and cross-move for an order: (a) granting them summary judgment; (b) permitting them to file and amend DHCR apartment registrations for 2013 through 2017 in accordance with the four-year rule; and (c) scheduling a hearing before a special referee to determine the apartments' current rents and Plaintiffs' overcharge damages in accordance with the four-year rule. Plaintiffs oppose the cross-motion. Issue has been joined and note of issue has not yet been filed. Therefore, summary judgment relief is available.

In an interim order dated March 11, 2022, the court directed plaintiff to refile each exhibit on NYSCEF and adjourned the motion for oral argument on April 19, 2022. Oral argument was held on that date. Subsequently, in an interim order dated July 19, 2022, the court erroneously scheduled this motion for oral argument again. Since that order was issued in error, it is hereby sua sponte vacated, as the court advised via email to the parties on July 27, 2022. The court's decision on the motion and cross-motion follows.

Plaintiffs Jorge A. Najera-Ordonez and E. Lopez, individually, and on behalf of all others similarly situated, tenants and former tenants at the building located at 260 Convent Avenue in Manhattan (the “building” or “260 Convent”). Specifically, there are 37 apartments at issue. Defendants are 260 Partners, L.P., which owns the apartment building and Beach Lane Management, the managing agent for the building.

The undisputed facts are that following Roberts, supra, which held that rent-regulated apartments could not be removed from rent stabilization while the building received J-51 benefits, defendants continued deregulating units in the building. Specifically, eight units were removed from the rent-

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stabilization rolls after Roberts was decided. Further, Mitchell Rothken, a manager of Beach Lane, admitted that he, and Beach Lane, knew of the Roberts decision in 2009. It is also undisputed that the defendants did not promptly re-register units after the First Department's decision in Gersten v 56 7th Ave. LLC, (88 A.D.2d 189 [1st Dept 2011]) decision, which required that apartments deregulated pre-Roberts, needed to be returned to the rent-stabilization rolls promptly. Finally, plaintiffs have shown that when the defendants re-registered apartments for rent-stabilization, they utilized preferential rents in violation of guidance provided by DHCR vis-à-vis its J-51 FAQ (see i.e. Casey v Whitehouse Estates, Inc., 197 A.D.3d 401 [1st Dept 2021]).

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 N.Y.2d 851 [1985]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 N.Y.2d 395 [1957]).

On this record, plaintiffs have...