Opinion
L & T 090364/17
08-07-2019
315 JEFFERSON LLC, Petitioner-Landlord, v. Dominguez ANTONIO, John Doe and Jane Doe, Respondents-Tenants.
Make The Road, Brooklyn (Jennie Stephen-Romero of counsel), for Antonio Dominguez, respondent. Wenig Saltiel LLP, Brooklyn (Meryl Wenig of counsel), for petitioner.
Make The Road, Brooklyn (Jennie Stephen-Romero of counsel), for Antonio Dominguez, respondent.
Wenig Saltiel LLP, Brooklyn (Meryl Wenig of counsel), for petitioner.
Kenneth T. Barany, J. The Decision and Order is as follows:
In this nonpayment proceeding respondent previously moved for summary judgment on its claim of rent overcharge asserting that there was a "fraudulent scheme" on the part of the petitioner to deregulate through the taking of improper rent increases . By decision and order dated May 9, 2019 this court denied respondent's motion for summary judgment and granted petitioner summary judgment on the issue of rent overcharge, dismissing all parts of respondent's answer alleging rent overcharge either as a defense or counterclaim. That Decision and Order dated May 9, 2019 is incorporated herein by reference as if fully set forth.
Notably, petitioner had commenced two other nonpayment proceedings which respondent's counsel moved to consolidate based upon the allegation of a fraudulent scheme. That request was denied by the Hon. Marc Finkelstein. In fact petitioner never attempted to deregulate the premises.
The court notes that it also declined to sign respondent's order to show cause seeking re-argument on the foregoing decision and referred the matter back to the trial part for trial on this 2017 "summary proceeding". When the proceeding was scheduled for trial respondent submitted an order to show cause now seeking "renewal" rather than re-argument. This court declined to sign the current order to show cause for re-argument which has since been referred back by the Appellate Term for this court's review. For the reasons set forth hereafter respondent's request for leave to renew is denied and this matter is referred back to the Trial Judge, so it may proceed to trial.
The crux of respondent's request for renewal is the recent enactment of the Housing Stability and Tenant Protection Act of 2019 ("HSTPA"). Respondent relies on the expansion of the scope of inquiry under that act vis a vis — the scope of inquiry and the time frame for raising issues of an alleged fraudulent scheme.
In submitting this order to show cause, respondent initially ignores the clear language contained in the HSTPA, part "F" § 7 regarding rent overcharge claims. There it states "This act shall take effect immediately and shall apply to any claims pending or filed on or after such date " Notably, respondent's claim of rent overcharge was filed prior to the effective date of the HSTPA and was not pending at the time of the HSTPA enactment, having already been dismissed by this court. Therefore, the HSTPA does not act as a basis for renewal with respect to the prior claim. To hold otherwise would give the HSTPA unintended retroactive effect notwithstanding that the prior decision of this court was decided based upon the law existing at the time.
Furthermore, even if the HSTPA were applicable to the current situation, there would be no basis for renewal of the previously issued Decision and Order dated May 9, 2019. The HSTPA states in pertinent part " the courts, in investigating complaints of overcharge and in determining legal regulated rents, shall consider all available rent history which is reasonably necessary to make such determination ". Even a cursory review of the May 9, 2019 Decision and Order demonstrates that the court did a step by step analysis of the entire rent history and could not find any an issue of a fraudulent scheme to deregulate. In fact, the only error that the court found was an eleven dollar and ninety cent error on the part of the petitioner.
In detailing its analysis this court took into account all the factors now being formalized in the HSTPA which the court determined were reasonably necessary to reach the court's Decision and Order. This court addressed the fact that no rent was registered until the 1990s due to owner occupancy by the prior owner-unrebutted. This court addressed all the increases undertaken by petitioner including vacancy increases and the Individual Apartment Improvement increases ("IAI's") Rather, it became abundantly clear that respondent was engaging in the proverbial "mud against the wall" assertion to overcome his failure to contest rent increases, valid or not, at the time they were taken by the landlord.
The respondent acknowledged that from 2007 through 2016 he worked as the super of the building and clearly would have had familiarity back then with the legitimacy or lack thereof of the IAI's when taken by the landlord.
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This court also noted the failure of respondent to meet his burden regarding his claim of a fraudulent scheme including presenting the court with an unsigned partial lease, no evidence of a familial relationship with the tenant he claims to have succeeded to (or proof that he co-resided with her) to have raised an issue back then of the invalidity of the vacancy increase. Also, as noted above, there was no evidence whatsoever of petitioner attempting to deregulate the subject premises. Renewal is not a second chance for parties because they did not exercise due diligence in making their first presentation, Matter of Setters v. AI Props. & Devs. (USA) Corp., 139 A.D.3d 492, 32 N.Y.S.3d 87 (1st Dep't 2016). As this court noted in its May 9, 2019 Decision and Order respondent had the burden to establish his claim or defense, Jacobs v. Zurich Insurance Co., 53 A.D.2d 524, 384 N.Y.S.2d 452 (2nd dep't 1976).
Furthermore, the look back contained within the HSTPA, regarding an overcharge, as the rent six years prior to "the most recent reliable" annual registration statement, would not change the courts determination either. In the May 9, 2019 Decision and Order this court recognized that the last reliable registration statement was the most recent year and noted (pg. 3 of the Decision and Order) all rent increases since 2010 (more than six years) simply reflect the guideline increases promulgated each year by the Rent Stabilization Board.
A motion for leave to renew must be based upon new facts, not offered on the original application, See Analiese Home Corp. v. Mannari, 164 A.D.3d 727, 79 N.Y.S.3d 565 (2nd Dep't 2018) citing Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121 [internal quotation marks omitted]. Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion, Analiese Home Corp, citing Matter of Orange & Rockland Util. v. Assessor of Town of Haverstraw , 304 A.D.2d 668, 669, 758 N.Y.S.2d 151 [internal quotation marks omitted]. A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the determination, and, shall contain reasonable justification for failure to present such facts on the prior motion, see 580-585 Realty, LLC v. Keselman, 59 Misc. 3d 139(A), 2018 WL 1864821 (App. Term, 2nd Dep't 2018). Here the new law while not only inapplicable to this proceeding, fails to change anything regarding the "facts" previously presented which led to this Court's determination.
Accordingly, the order to show cause is denied in its entirety and this proceeding is referred back to the Trial Judge to schedule for an immediate trial subject to the trial part's calendar. This constitutes the Decision and Order of the Court.
SO- ORDERED