Smoke v. Windermere Owners, LLC

• Decision Date: 13 June 2019
• Docket Number: 7932–7933–7934–7935,Index 113051/11, 106532/11
• Citation: Smoke v. Windermere Owners, LLC, 173 A.D.3d 500, 104 N.Y.S.3d 60 (N.Y. App. Div. 2019)
• Parties: Gary SMOKE, Plaintiff–Respondent, v. WINDERMERE OWNERS, LLC, et al., Defendants–Appellants. Luissa Chekowsky, Plaintiff–Respondent, v. Windermere Owners, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 500

104 N.Y.S.3d 60

Gary SMOKE, Plaintiff–Respondent,

v.WINDERMERE OWNERS, LLC, et al., Defendants–Appellants.

Luissa Chekowsky, Plaintiff–Respondent,

v.Windermere Owners, LLC, et al., Defendants–Appellants.

7932–7933–7934–7935

Index 113051/11, 106532/11

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

ENTERED: JUNE 13, 2019

Rosenberg Feldman Smith, LLP, New York (Richard Bruce Feldman of counsel), for appellants.

Marc Bogatin, New York, for respondents.

Friedman, J.P., Sweeny, Kapnick, Kahn, Singh, JJ.

Judgments, Supreme Court, New York County (Lucy Billings, J.), entered October 26, 2017 and October 30, 2017, awarding, inter alia, treble damages to plaintiffs against defendants, unanimously affirmed, and the matter remanded for a determination and award to plaintiffs of their reasonable attorneys' fees and costs in connection with these appeals.Appeals from order, same court and Justice, entered October 18, 2017, which, after a nonjury trial, directed entry of judgments in favor of plaintiffs, unanimously dismissed, without costs, as subsumed in the appeals from the judgments.

In the Smoke action, by order entered December 30, 2014, Supreme Court granted plaintiff's motion on the issue of liability on his rent overcharge claim.In Chekowsky , this Court reversed the order of Supreme Court entered July 24, 2013, denying plaintiff's motion for summary judgment on liability on her rent overcharge claim, and granted her motion ( Chekowsky v. Windemere Owners, LLC , 114 A.D.3d 541, 541, 980 N.Y.S.2d 751[1st Dept.2014] ).Both cases were consolidated for trial on the issue of whether plaintiffs were entitled to treble damages due to defendants' willfulness in overcharging plaintiffs.Because the issue of defendants' liability on the rent overcharge claims in both cases has already been determined, the sole issue presented on this appeal is whether the trial court's finding of willfulness was correct.

Defendants failed to overcome the presumption of willfulness arising from the rent overcharges and removal of plaintiffs' apartments from rent regulation (seeMatter of Tockwotten Assoc. v. New York State Div. of Hous. & Community Renewal , 7 A.D.3d 453, 455, 777 N.Y.S.2d 465[1st Dept.2004];see alsoAdria Realty Inv. Assoc. v. New York State Div. of Hous. & Community Renewal , 270 A.D.2d 46, 704 N.Y.S.2d 51[1st Dept.2000] ).Neither defendant called a witness or presented other evidence showing that it had no reason to believe that the overcharges were...