Opinion
150479/16
08-17-2018
ALEXANDER CONDOMINIUM, By Its Board of Managers, Plaintiff, v. AB FUNDING CORPORATION, CFC Specialty Program Managers, LLC, Big Apple Fire Sprinkler Co., Inc., New York State Department of Taxation & Finance, New York City Department of Finance, Alexander Gurevich, Ella Gurevich, Mitchell Gurevich, "John Doe" and "Jane Doe," the true names of said, defendants being unknown to plaintiff, the parties intended to be the persons or entities having or claiming an interest in the premises described in this complaint by virtue of being a tenant or occupant in all or part of said premises, Defendants.
Attorney for Plaintiff Alexander Condominium, By Its Board of Managers, SCHWARTZ SLADKUS REICH GREENBERG ATLAS LLP, 270 Madison Ave, New York, NY 10016, By: MARIA I BELTRANI, Esq. Attorney for Defendants AB Funding Corporation, Alexander Gurevich, Ella Gurevich, and Mitchell Gurevich, SMITH, BUSS & JACOBS, LLP, 60 E 42nd St, New York, NY 10165, By: RYAN P. KAUPELIS, Esq. No appearance for remaining defendants
Attorney for Plaintiff Alexander Condominium, By Its Board of Managers, SCHWARTZ SLADKUS REICH GREENBERG ATLAS LLP, 270 Madison Ave, New York, NY 10016, By: MARIA I BELTRANI, Esq.
Attorney for Defendants AB Funding Corporation, Alexander Gurevich, Ella Gurevich, and Mitchell Gurevich, SMITH, BUSS & JACOBS, LLP, 60 E 42nd St, New York, NY 10165, By: RYAN P. KAUPELIS, Esq.
No appearance for remaining defendants
Robert R. Reed, J.
Plaintiff Alexander Condominium moves by order to show cause for leave to renew and reargue its prior motion that resulted in a decision and order dated January 9, 2017 ( Alexander Condominium v. AB Funding Corp., 54 Misc 3d 1206[A], 2017 NY Slip Op 50008[U] [Sup Ct, NY County 2017] ).
This is an action to foreclose on a condominium unit. Defendant AB Funding Corporation is the owner of the unit.
While a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" ( CPLR 2221 [e] [2] ), plaintiff does not offer any new facts. A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" ( CPLR 2221 [d] [2] ). The instant motion is one for reargument.
In its previous motion, plaintiff asked that a receiver be appointed to collect a reasonable rental/use and occupancy from the unit owner, that the receiver pay the outstanding charges out of the rentals, and that the receiver be allowed to rent the unit. The court granted the motion to appoint a receiver to collect a reasonable rental from defendant, but did not specify the amount of the rental. The court denied the other parts of plaintiff's motion.
On the instant motion to reargue, plaintiff asks that (1) the court set the rental amount; (2) the receiver be allowed to pay the outstanding common charges; and (3) the receiver be allowed to rent the unit in the event that defendant fails to pay the rental.
The motion for leave to reargue is granted and, upon reargument, the motion is granted to the extent that the amount of the rental is set. In all other respects, the court denies the motion and adheres to the previous decision.
The conditional part of the third part of the instant motion, that the unit should be rented should defendant fail to pay the rental, was not previously requested. A motion for reargument is not a vehicle for raising new questions or seeking new forms of relief ( Simpson v. Loehmann, 21 NY2d 990, 990 [1968] ; Fox v. Schrader Corp., 36 AD2d 591, 591 [1st Dept 1971] ).
Real Property Law § 339-aa and section 7 of the condominium by-laws provide that, in an action to foreclose on a lien for unpaid common charges, a unit owner can be required to pay a reasonable rental for the subject unit. The statement of plaintiff's president that $3,650 was the "reasonable rental" amount for plaintiff's unit was based on comparable rentals in the condominium, and defendant provided no evidence to refute this showing (see Heywood Condominium v. Wozencraft, 148 AD3d 38, 47 [1st Dept 2017] ). The reasonable rental/use and occupancy is set at $3,650.
Accordingly, it is hereby
ORDERED that plaintiff's motion for leave to renew is denied; and it is further
ORDERED that plaintiff's motion for leave to reargue is granted and, upon reargument, so much of the court's decision and order dated January 9, 2017 as did not set the amount of the rental is amended to the extent that the amount of use and occupancy is set at $3,650 a month to be paid from April 9, 2016.