Opinion
570729/15
11-12-2015
AIMCO 322 EAST 61ST STREET, LLC, Petitioner–Landlord–Respondent, v. Charlotte BROSIUS, Respondent–Tenant,–and–Gene Brosius, Respondent–Tenant–Appellant.
Sokolski & Zekaria, P.C., New York City (Daphna Zekaria of counsel), for appellant. Rosman and Associates, New York City (Tracy Boshart of counsel), for Aimco 322 East 61st Street, LLC, respondent.
Sokolski & Zekaria, P.C., New York City (Daphna Zekaria of counsel), for appellant.
Rosman and Associates, New York City (Tracy Boshart of counsel), for Aimco 322 East 61st Street, LLC, respondent.
Opinion
PER CURIAM.
Tenant Gene Brosius appeals from three orders of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), each dated November 7, 2014, which (1) granted landlord's motion to strike tenants' affirmative defenses and counterclaims, (2) denied tenants' cross motion for disclosure, and (3) awarded landlord use and occupancy pendente lite.
Orders (Brenda S. Spears, J.), dated November 7, 2014, modified to the extent of denying landlord's motion to strike the defenses and counterclaims, and granting tenant's cross motion for disclosure to the extent specified; as modified, orders affirmed, without costs.
Tenant's defense of lack of personal jurisdiction should not have been stricken, since his sworn, nonconclusory denial of service sufficiently controverted the veracity and content of the affidavit of service, requiring a traverse hearing (see Finkelstein Newman Ferrara LLP v. Manning, 67 A.D.3d 538, 889 N.Y.S.2d 147 2009 ).
Nor was tenant's defense of rent stabilization coverage subject to summary dismissal. The record raises but does not resolve several material triable issues, including whether the apartment at issue was exempt from rent stabilization because of a high rent vacancy that occurred in 2001, and whether landlord's expenditures for apartment improvements in the year prior to the high rent vacancy justified the increase in the rent over the $2,000 threshold then in effect. In this regard, we note that Rent Stabilization Law (RSL) (Administrative Code of City of N.Y.) § 26–504.2(a) contains two statutory bases for high rent deregulation, the second of which is if the housing accommodation “is or becomes vacant ... with a legal regulated rent of two thousand dollars or more per month” (emphasis added). In addition, increases in rent for postvacancy improvements count “to bring the legal rent above the luxury decontrol threshold” (Jemrock Realty Co., LLC v. Krugman, 13 N.Y.3d 924, 926, 895 N.Y.S.2d 284, 922 N.E.2d 870 2010; see Roberts v. Tishman Speyer Props., L.P., 62 A.D.3d 71, 78, 874 N.Y.S.2d 97 2009 [high rent deregulation when “the tenant vacates the apartment and the legal rent, plus vacancy increase allowances and increases permitted for landlord improvements, is $2,000 or more”], affd. 13 N.Y.3d 270, 281, 890 N.Y.S.2d 388, 918 N.E.2d 900 2009 [“postvacancy improvements [ ] count toward the $2,000 per month rent threshold [L. 97, ch. 116]” for high rent deregulation]; cf. Altman v. 285 W. Fourth, LLC, 127 A.D.3d 654, 8 N.Y.S.3d 295 2015 relying solely on RSL § 26–504.2a's first statutory basis for high rent deregulation, that is, “at the time the tenant vacated ... the legal regulated rent was two thousand dollars or more a month”] ).
Events beyond the four-year statute of limitations may be considered to determine whether the apartment is regulated (see Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189, 199–201, 928 N.Y.S.2d 515 2011 ), but not “for the purpose of calculating an overcharge” (see East W. Renovating Co. v. New York State Div. of Hous. and Community Renewal, 16 A.D.3d 166, 791 N.Y.S.2d 88 2005 ).
Tenant demonstrated ample need for limited discovery relating to the apartment improvements that were the basis for the purported deregulation (see 150 W. 82nd St. Realty Assoc., LLC v. Linde, 36 Misc.3d 155[A], 2012 N.Y. Slip Op. 51753[U], 2012 WL 3984596 [App.Term, 1st Dept.2012] ). Tenant's January 21, 2014 discovery notice is limited accordingly.
We have considered and rejected tenant's remaining arguments.