Oswald v. Schulmann Props. Int'l
| Decision Date | 15 November 2021 |
| Docket Number | Index 161236/2020 |
| Citation | 2021 NY Slip Op 03236 (U) |
| Parties | CHARLOTTE OSWALD, Plaintiff, v. SCHULMANN PROPERTIES INTERNATIONAL LLC, 302 MOTT STREET LLC Defendant. |
| Court | New York Supreme Court |
MOTION DATE 07/26/2021
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 17, 18, 19 were read on this motion to/for DISMISSAL
In a pre-Answer motion to dismiss, Defendants move pursuant to CPLR §3211(a)(1) to dismiss this proceeding on the ground that a defense is founded upon documentary evidence and pursuant to CPLR §3211(a)(5) to dismiss this proceeding on the ground that the First and Second cause of action are time-barred by the statute of limitations. Defendants further move pursuant to CPLR §3211(a)(7) to dismiss this proceeding on the ground that the Plaintiff has failed to state a cause of action and granting Defendants such other and further relief as this Court deems just and proper.
Plaintiff alleges two causes of action for rent overcharge and negligent infliction of emotional distress.
On a CPLR §3211(a)(7) motion to dismiss for failure to state a cause of action, the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true" (Alden Global Value Recovery Master Fund, L.P. v Key Bank National Association, 159 A.D.3d 618, 621-22 [2018]). In addition, "on such a motion, the complaint is to be construed liberally and all reasonable inferences must be drawn in favor of the plaintiff (Id. at 622). However, vague and conclusory allegations cannot survive a motion to dismiss (see, Kaplan v Conway and Conway, 173 A.D.3d 452, 452-53 [2019]; D. Penguin Brothers Ltd. v City National Bank, 270 N.Y.S.3d 192, 192 [ 2018] [ that "conclusory allegations fail"]; R&R Capital LLC, et al, v Linda Merritt, 68 A.D.3d 436, 437 [2010]).
The criterion for establishing whether a Complaint should be dismissed pursuant to §3211(a)(7) is "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; see also Foley v D'Agostino, 21 A.D.2d 60, 64-65 [1964]). Whether the pleader will ultimately be able to establish the allegations in the pleading is irrelevant to the determination of a motion to dismiss pursuant to CPLR §3211(a)(7) ().
Dismissal under CPLR § 3211(a)(1) is warranted where the documentary evidence submitted "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim." (Fortis Financial Services, LLC v Fimat Futures USA, 290 A.D.2d 383, 383 [1st Dept 2002]; see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc, Inc., 120 A.D.3d 431 [1st Dept. 2014]).
Plaintiff claims that Defendants overcharged her in violation of the Rent Stabilization Law ("RSL"), NY Admin code 26-516(a). She further alleges that the Defendants, pursuant to a scheme to defraud the Plaintiff, charged her in excess of the legal regulated rent for the apartment for the duration of the tenancy. Plaintiff seeks money judgments in the amount of such overcharges, plus treble damages as provided by the RSL.
Defendants contend that there is no evidence in the record which shows or suggests that the Defendants engaged in a fraudulent scheme to deregulate the Apartment.
The Court of Appeals recently consolidated four separate appeals for review, which were all pending when the Legislature passed the Housing Stability & Tenant Protection Act of 2019 ("HSTPA") (Matter of Regina, 35 N.Y.3d 332 [2020]). In each case, tenants sued their landlords for rent overcharge and sought to apply the HSTPA's new overcharge calculation provisions to their cases (Id.). HSTPA's new overcharge calculation expanded a landlord's damages liability under the Rent Stabilization Law ("RSL") (Id.). Accordingly, the Court of Appeals was faced with determining whether the HSTPA's rules applied retroactively to cases that were pending when HSTPA was passed (Id.).
Specifically, the HSTPA enacted three key changes to the RSL: (1) it extended the period for which overcharge damages could be recovered from four years to six years; (2) it empowered courts, in calculating the amount by which a tenant had been overcharged, to look back at the unit's rent history over six or more years, rather than four years; and (3) it lengthened the period for which landlords are obliged to retain records of their rental history from four to six years, and permitted regulators and courts to examine "all available rent history which is reasonably necessary" to investigate overcharge claims, regardless of how old the history is and whether it is drawn from records belonging to landlords, tenants, or others (Id.).
In a 4-3 decision, the Court of Appeals held, as a matter of statutory interpretation and federal constitutional law, that the HSTPA rules could not apply retroactively to the tenants' pending claims for overcharges that occurred prior to the HSTPA's enactment (Id.).
In the present case, the alleged rent overcharges occurred well before the passage of the HSTPA. Accordingly, the HSTPA cannot be applied retroactively to this matter. As such, the pre-HSTPA law should govern the instant proceeding and no damages for an overcharge may be awarded beginning more than four years before the action was commenced, and no penalties for a willful overcharge beginning more than two years before the action was commenced, rather than the six years permitted by the newly enacted C.P.L.R. §213-a and the amended RSL, N.Y.C. Admin. Code § 26-516(a)(2) (see Sandlow v 305 Riverside Corp., 69 Misc.3d 893, 895, 131N.Y.S.3d783, 788 [2020]).
To justify examining an apartment's rental history more than four years retroactively, plaintiff must make more than "a mere allegation of fraud alone" against defendant, as such a claim, "without more, will not be sufficient" for the court to inquire further (see Conason v Megan Holding, LLC, 25 N.Y.3d 1, 16, 6 N.Y.S.3d 206 [2015]; Grimm v State of NY Div. of Hous. & Community Renewal Off. of Rent Admin., 15 N.Y.3d 358, 367, 912 N.Y.S.2d 491 [2010]). Only actual evidence of fraud will warrant examination of the apartment's rental history beyond four years before plaintiffs overcharge complaint, which was filed on December 23, 2020.
In her complaint, Plaintiff contends that Defendants failed to provide a vacancy rider at the inception of plaintiff s tenancy as required by 9 NYCRR 2522.5 (c)(1) and was not permitted to collect any rent increases for the years from 2016-2020 from plaintiff. She also maintains that the Department of Buildings in 2011 did not issue any permits for the apartment that would in any way indicate there was a "gut renovation" which would support Defendants' rent increases. In support, Plaintiff states in her affidavit that "When I initially entered the apartment there were no evidence of any renovations, to the contrary the kitchen, the appliances were old, and absolutely no evidence of renovation." (NYSCEF Doc. No. 18 ¶3).
Defendants submit the affidavit of Benjamin Aryeh, Managing Member of Brownstone Building Management, the registered managing agent (NYSCEF Doc. No. 4). Mr. Aryeh states that Plaintiff became the tenant of apartment #1 located in the Subject Building pursuant to a written lease dated April 2, 2014 for a period of one (1) year commencing on May 1, 2014 and expiring on April 30, 2015 with a monthly rent of $2, 300.00 per month (Id.). Plaintiff was offered a one-year renewal every year from the years 2015 through and including 2019 and Plaintiff accepted each and every renewal pursuant to the terms and conditions stated therein (Id.). By notice dated January 29, 2020, Plaintiff was notified that her current lease was set to expire on April 30, 2020, and that the lease would not be renewed. Plaintiff vacated the Apartment on or about April 30, 2020 (Id.). Defendants contend that according to the records of New York State Division of Housing and Community Renewal ("DHCR"), in 2011, the Apartment was deregulated and a vacancy lease for the Apartment was provided to Christina Andersen, who was the first tenant to reside in the Apartment after it was deregulated (Id.). Ms. Andersen's lease is dated April 25, 2011 for a two-year period commencing on May 1, 2011 and expiring on May 2013 (Id.). Thereafter, the Plaintiffs tenancy commenced in 2014 (Id.).
Defendants contend that pursuant to the four year look back period, from December 23, 2016 until the date of vacatur by Plaintiff in April 2020, the renewal leases were all market rate leases as allowed by law and provide no basis for a rent overcharge.
Plaintiff does not plead any factual allegations in support of her argument that Defendants pursued a fraudulent scheme that would allow examination prior to the four year look back period. Further, Plaintiff does not provide any documentation in support of her claims. Accordingly, Defendants' motion to dismiss the first cause of action is granted.
Dismissal of a cause of action under CPLR § 3211(a)(5) is...
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