Soskin v. Camillerj

• Decision Date: 12 January 2011
• Docket Number: Docket Number: 106739/10,Mot. Seq. 001
• Citation: 2011 NY Slip Op 30094
• Parties: REBECCA SOSKIN, Plaintiff, v. D. CAMILLERJ, LLC Defendant.
• Court: New York Supreme Court

2011 NY Slip Op 30094

REBECCA SOSKIN, Plaintiff,

v.D. CAMILLERJ, LLC Defendant.

Docket Number: 106739/10

Mot. Seq. 001

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15

January 12, 2011

DECISION and ORDER

HON. EILEEN A. RAKOWER

According to the complaint, Plaintiff is the resident of Unit 5A ("the unit") of the building known as 40 Morton Street in New York County ("the Building"), which is owned by D. Camilleri, LLC ("Defendant"). Plaintiff has occupied the unit pursuant to consecutive one-year leases since June 1, 2006¹. Plaintiff states that her monthly rent was $3,600 in 2006-07; $3,700 in 2007-08; $4,300 in 2008-09; and $4,150 in 2009-10. Plaintiff alleges that her unit was originally configured as a one-bedroom apartment, but has been illegally converted into a three-bedroom apartment by Defendant. According to Plaintiff," [t]he construction performed by the Defendant was shoddy and was done without the issuance of proper permits and without obtaining a necessary certificate of occupancy."

In addition to allegedly performing illegal construction work in her unit, Plaintiff alleges that Defendant has fraudulently registered the subject unit with the New York City Department of Housing and Community Renewal ("DHCR") as exempt from applicable rent stabilization rules and regulations. Specifically, Plaintiff alleges that, in 1996, Defendant registered the subject unit as being rent stabilized, with a lawful rent of $786.41. In 1997, according to Plaintiff, Defendant listed the unit as having been deregulated with a monthly rent of $2,000, and has registered the unit as exempt from rent stabilization each year thereafter. Plaintiff states that theregistrations from 1997 onward have been fraudulent, as Defendant and its predecessor in interest were recipients of J-51 tax abatements.

Presently before the court is a motion by Plaintiff pursuant to CPLR §3212

(a) granting summary judgment on her first, second and fourth causes of action (seeking a declaratory judgment that the subject apartment is illegal; an affirmative injunction directing that Defendant render the apartment legal; and a declaratory judgment that the unit is rent stabilized based on the receipt of J-51 benefits, respectively);

(b) granting partial summary judgment on her third, fifth, and sixth causes of action (seeking a declaratory judgment that the subject unit is rent stabilized based upon fraudulent registrations with DHCR; a money judgment for rent overcharge and treble damages; and attorneys fees, respectively); and

(c) dismissing Defendant's first through third counterclaims (seeking judgment of possession against Plaintiff plus use and occupancy of the unit based upon Plaintiff's remaining in the unit following expiration of Plaintiff's lease; alternatively, quantum meruit for the reasonable rental value of the unit; and a declaration that the subject apartment is not subject to rent stabilization, or alternatively, that the legal regulated rent is no less than $4,150, respectively)

Plaintiff provides her affidavit, an attorney's affirmation, and a memorandum of law in support of her application. In support of her claim that the subject unit is an illegal apartment, Petitioner annexes the affidavit of licensed architect Michael Zenreich. Zenreich opines that the subject unit is illegal for several reasons. First, he states the unit has two rooms which both contain storage lofts that were not contained in plans which were submitted by Defendant to the New York City Department of Buildings ("DOB"). Second, Zenreich states that a spiral staircase, penthouse, and a two-fixture bathroom were built on the roof of the subject unit. Zenreich opines that these additions violate the Multiple Dwelling Law because they exceed 10% of the roof area of the Building. Third, Zenreich claims that the Building does not have a Certificate of Occupancy ("CO"). Fourth, Zenreich states that while the alteration to the subject unit was filed as a "non-enlargement application," the installation of thebathroom in the roof area constituted an enlargement. Fifth, Zenreich claims that Defendant violated Building Code §26-22 by failing to obtain a CO for an altered portion of the building. Sixth, since the bathroom was not contained in the plans submitted to DOB, it was built without a permit. Lastly, Zenreich states that the bathroom built on the roof/penthouse level was constructed without mechanical ventilation.

Plaintiff states in her affidavit that her apartment is rent stabilized as a matter of law because Defendant has accepted, and continues to accept J-51 tax benefits, as evidenced by printouts from the New York City Department of Finance. However, Plaintiff states that the actual amount of the overcharge remains an issue of fact.

Defendant opposes the motion and cross-moves for an order awarding it use and occupancy, pendente lite, without prejudice to any rights or claims of any party; and granting it leave to amend its answer to add a statute of limitations defense.

Defendant submits an attorney's affirmation, the affidavit of David Camilleri, member of Defendant LLC, and the affidavit of Donal Butterfield, a licensed architect. With respect to the Plaintiff's allegations of an illegal unit without a CO, Defendant provides a CO dated April 9, 1951. In addition, Butterfield states in his affidavit that, since the Building was constructed prior to 1938, and thus no CO was required for the Building. Butterfield states that "[t]he I-Cards for the Building essentially served as the equivalent of a [CO]; and the I-Cards set forth the configuration and use for the Building and for the apartments in the Building." Butterfield further notes that the work performed by Defendant in 1996 (i.e., construction of the subject bulkhead) was approved by DOB. A printout annexed to Defendant's papers showing DOB approval for the following:

REFURBISH TWO EXISTING FRONT FIFTH FLOOR APTS., INCLUDING NEW BATHROOM AN [sic] RELOCATION OF EXISTING KITCHEN IN 5F, PAR TITION [sic] WORK AS INDICATED, INSTALL SPIRA [sic] STAIRS AND BULKHEADS FOR ACCESS TO ROOF DECK. NO CHANGE IN USE, OCCUPANCY AND/OR EGRESS.

Butterfield states that the bedrooms of the subject unit are legal in size, and that the storage lofts "would not even elicit a violation from a building inspector." Butterfieldstorage lofts "would not even elicit a violation from a building inspector." Butterfield further states that there is no penthouse on the roof of the Building, and annexes a printout reflecting that DOB inspected the bulkhead in June 2010 and stated the following: "NO VIOLATION WARRANTED FOR COMPLAINT AT THE TIME OF INSPECTION 2 BULKHEADS ARE OK UNDER PERMIT #101337304." Butterfield also claims that Zenreich's conclusion that the subject unit violates the Multiple Dwelling Law is incorrect because the 10% threshold does not apply to an "old law tenement". Butterfield asserts that Zenreich's contention that the rooms in the subject unit don't...