Wasserman v. Gordon

• Decision Date: 13 December 2005
• Docket Number: 5323A.,5323.
• Citation: 806 N.Y.S.2d 49,24 A.D.3d 201,2005 NY Slip Op 09438
• Parties: STEVEN M. WASSERMAN et al., Respondents-Appellants, v. NASON GORDON et al., Appellants-Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 201

806 N.Y.S.2d 49

2005 NY Slip Op 09438

STEVEN M. WASSERMAN et al., Respondents-Appellants, v.NASON GORDON et al., Appellants-Respondents, et al., Defendants.

5323.

5323A.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 13, 2005.

Orders, Supreme Court, New York County (Joan A. Madden, J.), entered December 5, 2003 and March 22, 2004, which, to the extent appealed as limited by the briefs, held that the legal regulated rent for the subject apartment should be determined by the New York State Division of Housing and Community Renewal (DHCR) in the context of a fair market rent appeal (FMRA) and, pending such determination, directed plaintiff tenants to pay defendant-appellant landlords use and occupancy in the amount of $724.84 per month prospectively from December 2003, unanimously modified, on the law, the facts and in the exercise of discretion, to remand the issue of plaintiffs' initial legal stabilized rent to DHCR for determination in accordance with the default formula set forth infra, to direct plaintiffs, within 20 days of service of a copy of this order with notice of entry thereof, to post a bond as security for their potential past use and occupancy at the rate of $1,030.70 per month, as of September 2000, and to direct plaintiffs to pay prospective use and occupancy at that same monthly rate, all without prejudice to the parties' positions concerning the legal stabilized rent, and otherwise affirmed, without costs.

The adjustment of plaintiffs' regulated rent is not governed by the provisions applicable to an FMRA (Rent Stabilization Code [RSC][9 NYCRR] § 2522.3), because the time within which an FMRA could be filed expired in 1996, four years after the premises were no longer subject to rent control (seeLevinson v. 390 W. End Assoc., L.L.C.,22 AD3d 397[2005];RSC § 2522.3 [c][2]).Rather, the current...