Opinion
LT 52873/06
Decided July 7, 2008.
Borah, Goldstein, Altschuler, Nahins Goidel, P.C., LLP, New York City (David R. Brody of counsel), for petitioner.
Hartman, Ule, Rose Ratner, LLP, New York City (David Ratner of counsel), for respondent.
This is a summary nonpayment proceeding. Respondent is the record tenant of 360-362 Broadway, 4th Floor South, in New York County.
Respondent moves for summary judgment under CPLR 3212 to dismiss the petition. Respondent argues that paragraph 10 of the petition misdescribes the subject premises as being exempt from the Rent Stabilization Law and Code's protections. Paragraph 10 of the petition alleges that "[t]his apartment is exempt from rent regulation because the maximum legal rent on or after 04/1/94 was more than $2,000.00 and the apartment became vacant and was re-rented after 04/1/94, and after the legal rent had reached $2,000.00 per month." Respondent argues that the high-rent-vacancy exemption does not apply to the subject apartment. According to respondent, the apartment is rent stabilized because petitioner never registered it with the Department of Housing and Community Renewal (DHCR) and because the apartment does not qualify under any other Rent Stabilization Code (RSC) exemption.
The issue is whether the subject premises is exempt from rent regulation due to its having a "maximum legal rent" on or after April 1, 1994, of more than $2000.00 or whether the petition wrongly alleges the apartment's rent-regulatory status. The court finds that respondent is entitled to summary judgment because the petition misdescribes the subject premises as being exempt from rent regulation.
The movant on a summary-judgment motion must prove that there is no genuine dispute of material fact on a cause of action or defense. A summary-judgment motion must be supported by affidavits and evidence such as examination-before-trial transcripts and written admissions. (CPLR 3212 [b].) The court should grant summary judgment only if a triable or arguable issue is absent. ( E.g. Simpson v Term Indus., Inc., 126 AD2d 484, 487 [1st Dept 1987, mem], citing Barrett v Jacobs, 255 NY 520, 522.) The nonmoving party will prevail on summary judgment if it establishes facts sufficient to show a triable issue of material fact. ( E.g. Zuckerman v. City of NY 49 NY2d 557, 562.) Any fact not denied is deemed admitted. ( E.g. Tan Holding Corp. v Wallace, NYLJ, Oct. 13, 1999, at 27, col 4 [Hous Part, Civ Ct, NY County], citing Kuehn Nagel, Inc. v Baiden, 36 NY2d 539.)
For an apartment to come under the high-rent-vacancy exemption, Rent Stabilization Code (9 NYCRR) § 2520.11 (r) (2) requires the apartment to become vacant on or after April 1, 1994, but before April 1, 1997, with a "legal regulated rent" of $2000 or more a month. The legal regulated rent for a housing accommodation subject to the Rent Stabilization Law (RSL) is the rent registered under section 26-517. ( See RSL [Administrative Code of City of NY] § 26-512 [e].) Under RSL § 26-517 (a), a landlord must file initial and annual registration statements with the DHCR. The registration statements must include the number of accommodations subject to regulation and the amount of rent charged on the registration date. (RSL § 26-517 [f].)
The subject premises do not come under the high-rent-vacancy exemption claimed in paragraph 10 of the petition. Petitioner conceded in court on April 4, 2008, that the building contains six or more residential units. A building with six or more units subjects each unit to rent stabilization under RSC (9 NYCRR) § 2520.11 (d). Petitioner and its predecessors-in-interest never registered the building with the DHCR. Respondent provided a certification from the DHCR dated December 21, 2007, establishing that the DHCR had "no record of a Registration Statement on file" for the building from 1984 through December 21, 2007. Because the subject apartment was never registered with the DHCR, the "legal regulated rent" never rose above $2000.00. Therefore, the property is not exempt from rent regulation as claimed in the petition.
Respondent cites Tribeca M. Corp. v Haller (2003 NY Slip Op 51271[U], 2003 WL 21174420, 2003 NY Misc LEXIS 1186 [Hous Part, Civ Ct, NY County, Aug. 22, 2003], affd 11 Misc 3d 133[A], 2006 NY Slip Op 50444[U], 2006 WL 758280, 2006 NY Misc Lexis 575 [App Term, 1st Dept, March 24, 2006, per curiam]), in which this court denied a motion for leave to amend a residential holdover petition to assert a claim that the premises were free of rent regulation under the high-rent-vacancy-exemption provisions of RSC § 2520.11 (r) (2). As the court explained, "[t]o establish a legally regulated rent' and to deregulate an apartment under the high-rent-vacancy statute, a landlord must first subject the apartment to rent regulation." ( Tribeca M., 2003 NY Slip Op 51271U, *12, citing 111 on 11 Realty Corp. v Norton, 189 Misc 2d 389, 398 [Civ Ct, Kings County 2001], revd on other grounds 5 Misc 3d 28 [App Term, 2 Dept, 2 11th Jud Dists 2004, mem) In Tribeca M., as well as in this case, the subject premises were never registered with the DHCR. The subject premises are not properly exempt, therefore, from rent regulation through the high-rent-vacancy exemption.
A "failure strictly to comply with statutes governing summary proceedings . . . mandates dismissal." ( MSG Pomp Corp. v Doe, 185 AD2d 798, 799 [1st Dept 1992, mem].) Statutory requirements must be strictly complied with to give a court jurisdiction over landlord-tenant proceedings. ( Id. at 799-800.) The petition should make clear the facts on which the proceeding is based so that respondents can defend themselves. ( Giannini v Staurt, 6 AD2d 418, 420 [1st Dept 1958, per curiam].) A petition in a summary proceeding to recover real property must describe the subject premises. (RPAPL 741.) In describing the premises, the petition must properly allege the premises' rent-regulatory status. ( 251 E. 119th St. Tenants Assn. v Torres, 125 Misc 2d 279, 281 [Hous Part, Civ Ct, NY County 1984], citing Sapphire Hotel Corp. v Netzick, 82 Misc 2d 95, 97 [Hous Part, Civ Ct, NY County 1975].) RPAPL 741 (3) is designed to ensure that the apartment's "proper status is pleaded so that [tenants] have the opportunity to raise any defense linked to rent stabilization." ( Callen v Callen, 2003 NY Slip Op 51301[U], *9, 2002 WL 32179000, at *4, 2003 NY Misc LEXIS 1250, at *10 [Hous Part, Civ Ct, NY County, July 14, 2003] [estopping respondent from raising affirmative defenses alleging that petition misdescribed subject premises because respondent knew about property's actual status].)
Petitioner's claimed high-rent-vacancy-deregulation exemption misdiscribes the subject premises. Thus, paragraph 10 of the petition misstates the premises' rent-regulatory status under RPAPL 741 (3). Petitioner does not properly inform respondent of what claims she must meet and what defenses she can raise.
Petitioner has submitted an affirmation in opposition to respondent's motion for summary judgment in which it seeks to shift the basis for the alleged rent-regulatory exemption. But petitioner did not move to amend the petition. Petitioner now alleges that the subject premises are an interim multiple dwelling subject to exemption under the Loft Law and argues that under the Loft Law's plain language, an interim multiple dwelling building is not potentially subject to rent regulation until after the Loft Board issues an order establishing the rents to be registered for DHCR for the Interim Multiple Dwelling units. ( See MDL § 286 [3].)
Regardless of the validity of petitioner's argument and its proposed amendment, petitioner does not offer evidence showing a genuine issue of material fact about the misdescription of the premises in paragraph 10 of the petition or provide notice to respondent of the new alleged rent regulation. Petitioner's affirmation also does not deny or challenge the misdiscription of the premises. In summary-judgment motions, whatever facts are not denied are admitted.
Because petitioner has not moved to amend the petition, the only issue is whether respondent's motion for summary judgment should be granted due to the petition's misdescription of the premises. The court need not address the merits of petitioner's proposed basis for rent regulation or respondent's argument that the apartment is rent stabilized.
Respondent's motion for summary judgment under to CPLR 3212 is granted. The petition is dismissed.
This opinion is the court's decision and order.