Opinion
Index No. 150928/2022 MOTION Seq. No. 002
10-20-2023
ABDULAZIZ ALSAFFAR, on behalf of himself and all others similarly situated, Plaintiff, v. 44 DEVELOPMENT LLC, Defendant.
Unpublished Opinion
MOTION DATE 11/18/2022
PRESENT: HON. PAULA. GOETZ, Justice
DECISION + ORDER ON MOTION
PAUL A. GOETZ, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 140 were read on this motion for PARTIAL SUMMARY JUDGMENT.
Plaintiff Abdulaziz Alsaffar (Alsaffar) brings this action on behalf of himself and on behalf of a putative class of current and former tenants of 235 East 44th Street in Manhattan. Defendant 44 Development LLC (44 Development) moves, pursuant to CPLR 3212, for partial summary judgment dismissing the amended complaint. 44 Development also moves to: (1) preemptively deny Alsaffar's motion for class certification; (2) transfer this action to Civil Court; (3) stay discovery; and (4) award it attorney's fees (motion sequence number 002).
Alsaffar cross-moves to compel discovery.
BACKGROUND
Alsaffar is the tenant of record of apartment 8C in the building (NY St Cts Elec Filing [NYSCEF] Doc No. 76, amended complaint ¶¶ 1, 24). 44 Development is the owner-in-fee of the building (id., ¶ 1). Alsaffar defines the proposed general class as "all tenants at the Building, between January 31, 2016 and the conclusion of this action" (id., ¶ 62), and the proposed subclass as "all current tenants at the Building, who currently reside in the Building" (id., ¶ 65). Alsaffar alleges that all units in the building are subject to the Rent Stabilization Law (RSL) because it received a certification pursuant to Real Property Tax Law § 421-a, granting it certain tax benefits (id., ¶ 47).
Alsaffar first started occupying apartment 8C on October 4, 2020 under a six-month lease expiring on April 3, 2021 (NYSCEF Doc No. 76 ¶ 10). According to Alsaffar, his lease was not on a rent-stabilized lease form and lacked all the riders required to be provided to rent-stabilized tenants (id., ¶ 11). His lease provided that the monthly rent for his unit was $3,000, and contained an addendum stating that "[t]he rent payments for the last month and a half of the lease are waived. Tenant shall be permitted to amortize the credit over the duration of the lease. Net Rent payment due with credit amortized shall be $2,250 per month for each of the 6 months of the lease" (id., ¶ 13; see also NYSCEF Doc No. 84 at 10). In March 2021, Alsaffar signed a sixmonth renewal lease, which contained a rider stating that "[t]he rent payments for the last month and a half of the lease are waived. Tenant shall be permitted to amortize the credit over the duration of the lease. Net Rent payment due with credit amortized shall be $2,000 for each of the 6 months of the lease" (NYSCEF Doc No. 76 ¶¶ 15, 16; see also NYSCEF Doc No. 85 at 4).
In October 2021, Alsaffar received a six-month renewal lease, which increased his rent (NYSCEF Doc No. 76 ¶¶ 19-20). That lease contained a rider stating that "[t]he rent payments for the last two (2) months of the lease are waived. Tenant shall be permitted to amortize the credit over the duration of the lease. Net Rent payment due with credit amortized shall be $2,610 per month for each of the 14 months of the lease" (NYSCEF Doc No. 86 at 4).
Alsaffar further alleges that 44 Development impermissibly charged $50 per day in late fees, in violation of the Housing Stability and Tenant Protection Act (HSTPA) (NYSCEF Doc No. 76 ¶ 60).
Alsaffar alleges that 44 Development has evaded the 421-a program's requirements in two ways (id., ¶ 3). First, Alsaffar alleges, based upon Streeteasy advertisements for the building's units listing the "net monthly rent," 44 Development "provided rent concessions to many of the Building's initial tenants, but those concessions were not reflected in the unit's initial registrations" (id., ¶¶ 5, 6). The Rent Stabilization Code (RSC) (9 NYCRR) § 2521.1 (g) states that "[t]he initial legal regulated rent for a housing accommodation constructed pursuant to section 421-a of the Real Property Tax Law shall be the initial adjusted monthly rent charged and paid but not higher than the rent approved by HPD." Second, 44 Development "fails to abide by the rent regulations with respect to 'preferential rents'" (NYSCEF Doc No. 76 ¶ 9). A "preferential rent" occurs when a landlord charges "less than the legal regulated rent" (RSC § 2521.2 [a]). Alsaffar alleges that 44 Development's concession schemes extend to most, if not all, of the building's apartments (NYSCEF Doc No. 76 ¶ 59).
Alsaffar commenced this action by filing a summons and complaint on January 31, 2022 (NYSCEF Doc No. 1). 44 Development asserted a counterclaim seeking attorney's fees (NYSCEF Doc No. 77 answer to amended complaint with counterclaim ¶ 141). On September 8, 2022, the parties stipulated to allowing Alsaffar to amend his complaint (NYSCEF Doc No. 70). The amended complaint asserts the following four causes of action: (1) rent overcharge in violation of the RSL on behalf of the class; (2) rent overcharge in violation of the RSL on behalf of the subclass; (3) declaratory relief on behalf of the subclass; and (4) attorney's fees on behalf of the subclass (NYSCEF Doc No. 76 ¶¶ 82-88, 89-96, 97-102, 103-107).
DISCUSSION
"It is well settled that 'the proponent of a summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). If the moving party satisfies its burden, "the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action" (Cabrera v Rodriguez, 72 A.D.3d 553, 553-554 [1st Dept 2010]). "On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (Vega v Restani Corp., 18 N.Y.3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011])
Whether Alsaffar is a Member of the Proposed General Class
44 Development argues that Alsaffar is not a member of the proposed general class. 44 Development further contends that the initial tenants of Alsaffar's apartment did not receive a rent concession (NYSCEF Doc Nos. 79-80).
In reply, 44 Development argues, for the first time, that Alsaffar is not a representative of the initial tenants that received rent concessions. However. "[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to pennit the movant to introduce new arguments in support of, or new grounds for the motion" (Dannasch v Bifulco, 184 A.D.2d 415, 417 [1st Dept 1992]).
However, as argued by Alsaffar, the amended complaint alleges that "[t]he proposed Class is defined as all tenants at the Building, between January 31, 2016 and the conclusion of this action" (NYSCEF Doc No. 76 ¶ 62). Alsaffar fits within this definition because the amended complaint alleges that he moved into the building on October 4, 2020 (id., ¶ 10). Moreover, even if the initial tenant of Alsaffar's apartment did not receive a rent concession, that does not dispel all questions of fact as to whether 44 Development improperly used rent concessions, including preferential rents (see Winegrad, 64 N.Y.2d at 853).
Accordingly, 44 Development is not entitled to summary judgment on the ground that Alsaffar is not a member of the proposed general class.
Claims Alleging Late Fees
44 Development also seeks summary judgment dismissing all claims alleging that Alsaffar was charged late fees. As support, 44 Development submits a payment ledger, which purportedly shows that it never received any late fees from Alsaffar for the period from October 1, 2020 through September 1, 2022 (NYSCEF Doc No. 88).
Alsaffar notes, in opposition, 44 Development charges more than $50 in late fees, in violation of the HSTPA (NYSCEF Doc Nos. 121, 122).
Viewing 44 Development's evidence in the light most favorable to Alsaffar, 44 Development has failed to meet its prima facie burden on the issue of late fees and charges. Real Property Law § 238-a (2) states that "[n]o landlord . . . may demand any payment, fee, or charge for the late payment of rent unless the payment of rent has not been made within five days of the date it was due, and such payment, fee or charge shall not exceed fifty dollars or five percent of the monthly rent" (see also Beco v Ritter, 190 A.D.3d 1150, 1152 [3d Dept 2021]). Initially, 44 Development has not laid a foundation for the admission of the tenant ledger as a business record, through the submission of an affidavit by its manager attesting that the ledger is a business record (see Vista Surgical Supplies, Inc. v GEICO Ins. Co., 14 Mise 3d 142[A], 2007 NY Slip Op 50367[U], *1 [App Term, 2d Dept 2007]). Additionally, there are unexplained discrepancies in the amounts charged to Alsaffar that appear to differ from his monthly rent. For instance, the ledger lists charges of $1,990 and $2,550 in June 2021, July 2021, August 2021, September 2021, and October 2021 (NYSCEF Doc No. 88 at 2).
To the extent that 44 Development submits an updated ledger in reply, it "may not use reply papers to remedy . .. basic deficiencies in [its] prima facie showing" (Tribbs v 326-338 E 100th LLC, 215 A.D.3d 480, 481 [1st Dept 2022] [internal quotation marks and citation omitted]).
In any event, Alsaffar submits computer-generated printouts indicating that 44 Development charged him $100 in late fees in January 2022 and October 2022 (NYSCEF Doc Nos. 121, 122).
Accordingly, 44 Development is not entitled to summary judgment dismissing Alsaffar's claims alleging that it charged him late fees or charges.
Whether 44 Development Charged More than a Preferential Rent
Next, 44 Development contends that it provided a temporary concession related to COVID which was not a "preferential rent" (NYSCEF Doc No. 75, Gordon aff, ¶ 18). 44 Development further asserts that, upon renewal of the lease, Alsaffar was not offered a COVID rent concession because COVID restrictions had been lifted (NYSCEF Doc No. 86).
Alsaffar counters that 44 Development provided Alsaffar with a preferential rent which it later impermissibly retracted. According to Alsaffar, there is nothing showing that the concession was related to CO VID. Moreover, Alsaffar asserts that the rent concession was clearly a preferential rent because he paid a rent lower than the legal regulated rent on an amortized basis.
44 Development has failed to establish that it was permitted to terminate the collection of a preferential rent upon Alsaffar's lease renewal. Initially, the relevant lease provisions do not indicate that the concession was COVID related. Alsaffar's first lease states that:
"The rent payments for the last month and a half of the lease are waived. Tenant shall be permitted to amortize the credit over the duration of the lease. Net Rent payment due with credit amortized shall be $2,250 per month for each of the 6 months of the lease"(NYSCEF Doc No. 84 at 10).
RSC § 2521.2 (preferential rents) provides:
"(a) Where the amount of rent charged to and paid by the tenant is less than the legal regulated rent for the housing accommodation such rent shall be known as the 'preferential rent.' The amount of rent for such housing accommodation which may be charged upon renewal or vacancy thereof may, at the option of the owner, be based upon either such preferential rent or an amount not more than the previously established legal regulated rent, as adjusted by the most recent applicable guidelines increases and other increases authorized by law"(RSC § 2521.2 [a]). RSL § 26-511 (c) (14) prohibits owners from retracting preferential rents for tenants who are subject to a lease on or after the effective date of the HSTPA. Specifically, RSL § 26-511 (c) (14) states that, "where the amount of rent charged to and paid by the tenant is less than the legal regulated rent for the housing accommodation ... the amount of rent . . . that may be charged and paid shall be no more than the rent charged to and paid by the tenant prior to that renewal, as adjusted by the most recent applicable guidelines increases and any other increases authorized by law" (Administrative Code of City of NY § 26-511 [c] [14]).
The New York State Division of Housing and Community Renewal (DHCR) has issued fact sheet 40, which defines a prorated concession as a concession "where the dollar value of the rent free month(s) is prorated over the entire term of the lease and not tied to a specific month or months," and states that "[a] prorated concession is really the same as a preferential rent and shall be treated in the same manner" (NYSCEF Doc No. 109 at 3). The First Department has deferred to DHCR's interpretation of the law regarding preferential rents (Matter of Bandit Farms Inc. v New York State Div. of Hous. & Community Renewal, 190 A.D.3d 403, 405-406 [1st Dept 2021]).
Moreover, a rent concession rider must be read "in the light of the circumstances existing at its making" (Matter of Century Operating Corp, v Popolizio, 60 N.Y.2d 483, 488 [1983] [internal quotation marks and citation omitted]), and the usual rules of construction apply (id. at 488-489).
Here, the leases indicate that the dollar value of the rent free months was prorated over the entire term of the lease, which would be treated as a preferential rent (see Chernett v Spruce 1209, LLC, 200 A.D.3d 596, 597 [1st Dept 2021] ["the allegations of the complaint warrant discovery to determine whether the concessions were functionally equivalent to a preferential rent; '[s]imply calling it a concession does not transform it into a permissible activity under the applicable statutory scheme'"] [citation omitted]; cf. Burrows v 75-25 153rd St.. LLC, 215 A.D.3d 105, 116 [1st Dept 2023] [two rent-free months qualified as a concession under fact sheet 40]; Flynn v Red Apple 670 Pac. St.. LLC, 200 A.D.3d 607, 609 [1st Dept 2021] [one-time concession of $3,350 to be credited during the 13th month of the lease was a concession under the terms of fact sheet 40]). At the time that 44 Development "pulled" the preferential rent upon the lease renewal in October 2021 (NYSCEF Doc No. 76 ¶ 26; NYSCEF Doc No. 86), it was not permitted to do so under the HSTPA.
Accordingly, 44 Development is not entitled to summary judgment on the issue of whether the COVID-related concessions were preferential rents.
Timeliness of Any Claims Brought on Behalf of Building's Initial Tenants
44 Development argues that any overcharge claims asserted by the building's initial tenants from 2016 are barred by the four-year statute of limitations, applicable to overcharge claims brought prior to the enactment of the HSTPA in 2019.
In response, Alsaffar contends that the claims asserted on behalf of initial tenants are timely because the six-year statute of limitations in the HSTPA applies. In any event, Alsaffar submits that, even if the four-year statute of limitations applies, there are sufficient indicia of fraud, given that 44 Development registered illegal rents as the first rent-stabilized rents.
In Matter of Regina Metro Co., LLC v New York State Div. of Hous. & Community Renewal (35 N.Y.3d 332, 363 [2020], rearg denied sub nom. Raden v W7879, LLC, 35 N.Y.3d 1079 [2020]), the Court of Appeals held that the HSTPA cannot be retroactively applied to overcharges that allegedly occurred prior to the enactment of the HSTPA in 2019. The Court also noted that "we have no occasion to address the prospective application of any portion of the HSTPA, including part F" (id.).
As explained in Regina, under the prior law, "overcharge claims were subject to a four-year statute of limitations that precluded the recovery of overcharges incurred more than four years preceding the imposition of a claim" and "no award or calculation of an award of the amount of an overcharge may be based upon an overcharge having occurred more than four years before initiation of the claim" (id. at 352-353 [internal quotation marks and citation omitted]).
Furthermore, "under the prior law, review of rental history outside the four-year lookback period was permitted only in the limited category of cases where the tenant produced evidence of a fraudulent scheme to deregulate and, even then, solely to ascertain whether fraud occurred- not to furnish evidence for calculation of the base date rent or pennit recovery for years of overcharges barred by the statute of limitations" (id. at 355).
In the wake of Regina, the First Department has held that:
"We reject defendant landlord's argument that the fraudulent exception to the four-year look back period applies only to a fraudulent-scheme-to-deregulate case. In
the event it is proven that defendant engaged in a fraudulent rent overcharge scheme to raise the pre-stabilization rent of each apartment, tainting the reliability of the rent on the base date, then the lawful rent on the base date for each apartment must be determined by using the default formula devised by DHCR"(435 Cent. Park W. Tenant Assn, v Park Front Apts., LLC, 183 A.D.3d 509, 510-511 [1st Dept 2020]).
In this case, any overcharge claims prior to the enactment of the HSTPA in 2019 are subject to a four-year statute of limitations. Although 44 Development argues that any claims brought by the initial tenants from 2016 are untimely, it has failed to eliminate issues of fact as to whether it engaged in a fraudulent overcharge scheme (see Butterworth v 281 St. Nicholas Partners, LLC, 160 A.D.3d 434, 434 [1st Dept 2018]; Altschuler v Jobman 478/480, LLC., 135 A.D.3d 439, 440 [1st Dept 2016], Iv dismissed 28 N.Y.3d 945 [2016], Iv denied 29 N.Y.3d 903 [2017]; Highline 22 LLC v Lawler, 74 Misc.3d 130[A], 2022 NY Slip Op 50132[U], *1-2 [App Terni, 1st Dept 2022]; Vendaval Realty, LLC v Felder, 67 Misc.3d 145[A], 2020 NY Slip Op 50786[U], *1-2 [App Term, 1st Dept 2020]). Notably, the initial lease for Alsaffar's apartment was not on a rent-stabilized form (NYSCEF Doc No. 84), and 44 Development has not submitted its DHCR rent registrations in support of its motion (cf. Burrows, 215 A.D.3d at 112). Furthermore, as noted by Alsaffar, the fact that 44 Development did not provide Alsaffar and his predecessors with lease riders indicating how the rent was computed '"may well be viewed as an attempt to obfuscate the regulatory status of the apartment'" (Similis Mgt. LLC v Dzganiya, 71 Misc.3d 129[A], 2021 NY Slip Op 50245[U], *2 [App Tenn, 1st Dept 2021], quoting Butterworth, 160 A.D.3d at 434). Additionally, in August 2021, 44 Development increased Alsaffar's rent from $2,250 to $2,610, a 16% increase (NYSCEF Doc No. 86). Thus, absent a fuller record on the fraud issue, the court cannot conclude that these claims are untimely (see Meyers v Four Thirty Realty, 127 A.D.3d 501, 502 [1st Dept 2015]).
NYSCEF Doc No. 130 at 10-11; see also NYSCEF Doc Nos. 79, 84.
Accordingly, 44 Development is not entitled to summary judgment dismissing the overcharge claims of the building's initial, "regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853).
44 Development's Request to Preemptively Deny Class Certification Under CPLR Article 9
44 Development argues that Alsaffar's single allegation of a rent overcharge based on the removal of a CO VID concession does not satisfy the five factors necessary to certify a class action. In addition, 44 Development contends that because Alsaffar is not even a member of the proposed general class with respect to initial rent concessions, he cannot satisfy the elements of commonality and typicality for this action to be certified as a class.
Alsaffar asserts, in opposition to the motion, that 44 Development has offered no evidence regarding other units in the building, and he has had no discovery in this action.
CPLR 901 (a) provides that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all if:
"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
"2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
"3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
"4. the representative parties will fairly and adequately protect the interest of the class; and
"5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Commonality requires "predominance not identity or unanimity among class members" (Chernett, 200 A.D.3d at 598, quoting Pludeman v Northern Leasing Sys., Inc., 74 A.D.3d 420, 423 [1st Dept 2010]). The fundamental issue is "whether the group asserting class status is seeking to remedy a common legal grievance" (Mendelson v Trans World Airlines, 120 Misc.2d 423, 427 [Sup Ct, Queens County 1983]).
As for "typicality," "[i]f it is shown that a plaintiffs claims derive from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory . . . [the typicality] requirement is satisfied" (Pludeman, 74 A.D.3d at 423 [internal quotation marks and citation omitted]).
Here, 44 Development has failed to establish prima facie that it did not "methodical[ly] attempt to illegally inflate rents" (Maddicks v Big City Props., LLC, 34 N.Y.3d 116, 123 [2019]; see also City of New York v Maul, 14 N.Y.3d 499, 508-514 [2010]), by improperly using rent concessions. While 44 Development argues that this is a single and isolated rent overcharge claim brought by an individual plaintiff, it has offered no evidence regarding other units in the building. Even if the initial tenants of Alsaffar's apartment did not receive a rent concession, courts have held that the fact that "individuals who are members of the class might have been subjected to less than all of the conduct complained of is not a ground for denying class action" (Weinberg v Hertz Corp., 116 A.D.2d 1, 6 [1st Dept 1986], affd 69 N.Y.2d 979 [1987]).
Accordingly, 44 Development is not entitled to an order preemptively denying class certification.
44 Development's Request to Transfer this Action to Civil Court
44 Development asserts that this action should be transferred to Civil Court under CPLR 325 (d) since the amount in controversy is below $25,000, and would, at most, amount to $8,540 ($610 rent increase due to the removal of CO VID rent concession multiplied by 14 months = $8,540). The request is denied.
Civil Court's jurisdictional limitation amount is now $50,000 (NYC Civ Ct Act § 202).
CPLR 325 (d) provides that Supreme Court "may, in its discretion remove [an] action without consent to [a] lower court where it appears that the amount of damages sustained may be less than demanded, and the lower court would have jurisdiction but for the amount of damages demanded." Whether to grant or deny the motion is within the trial court's discretion (Genson v Sixty Sutton Corp., 74 A.D.3d 560, 560 [1st Dept 2010]).
In this case, the amount in controversy has not yet been established because class certification has not yet been determined.
Accordingly, 44 Development's request to transfer this case to Civil Court must be denied.
44 Development's Request for a Stay of Disclosure
44 Development requests a stay of disclosure pending a final determination of its motion pursuant to CPLR 3214 (b), which provides that "[s]ervice of a notice of motion under rule . . . 3212 .. . stays disclosure until determination of the motion unless the court orders otherwise." The court's part rules provide that the filing of a motion for summary judgment does not stay disclosure absent good cause for a stay of disclosure. On July 13, 2022, the court adjourned the preliminary conference, but did not other-wise stay disclosure (NYSCEF Doc No. 28). In any event, the issue is now moot as the instant decision resolves 44 Development's summary judgment motion thereby vitiating any claim to a statutory stay.
Accordingly, 44 Development's request for a stay pending a determination of the instant motion will be denied.
44 Development's Request for Attorney's Fees
On this motion, 44 Development seeks attorney's fees pursuant to all leases, Real Property Law § 234, and/or CPLR 909.
Generally, attorney's fees may not be recovered unless provided for by statute, court rule or agreement between the parties (Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 N.Y.3d 375, 379 [2010). Preliminarily, 44 Development is not entitled to attorney's fees because it has not prevailed in this action. Moreover, CPLR 909 only provides for attorney's fees to "representatives of the class and/or to any other person that the court finds has acted to benefit the class." 44 Development has also not alleged that Alsaffar failed "to perform any covenant or agreement" contained in a lease (Real Property Law § 234 [1]).
44 Development also relies on paragraph 1.19 (A) (5) of Alsaffar's initial lease, which requires Alsaffar to reimburse 44 Development for "Any legal fees and disbursements for legal actions or proceedings brought by Owner against You because of a Lease default by You or for defending lawsuits brought against Owner because of your actions" (NYSCEF Doc No. 84 at 5). This language is "not 'unmistakably clear' so as to constitute a waiver of the general rule against recovery of legal fees and costs" (Flynn v Red Apple 670 Pac. St., 209 A.D.3d 580, 580-581 [1st Dept 2022], Iv dismissed 29 N.Y.3d 1067 [2023], quoting Hooper Assoc, v AGS Computers, 74 N.Y.2d 487, 492 [1989]). "Rather, the language grants the landlord the right to seek legal fees where it has been obliged to defend against lawsuits brought by third parties against the landlord as a result of the tenant's acts" (Flynn, 209 A.D.3d at 581). Here, 44 Development was not sued by a third party as a result of Alsaffar's acts.
Accordingly, 44 Development's request for attorney's fees will be denied.
Alsaffar's Cross-Motion to Compel Discovery
Alsaffar cross moves to compel production of lease-related material, DHCR records regarding registrations, and rent ledgers.
22 NYCRR 202.7 (a) and (c) requires "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion," which "shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held" (see Cashbamba v 1056 Bedford LLC, 172 A.D.3d 415, 415-416 [1st Dept 2019] [denying defendants' request for an independent neurological examination where "(d)efendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion"]). Alsaffar's crossmotion does not include an affirmation of good faith and does not demonstrate that "further efforts to try to resolve this discovery dispute without motion practice would have been futile" (Lehrman v Lehman, 211 A.D.3d 582, 583 [1st Dept 2022]). In addition, contrary to Alsaffar's contention, the court's order dated July 13, 2022 does not indicate that the court directed Alsaffar to move to compel; it only noted that Alsaffar intended to move to compel the production of rent records of tenants other than Alsaffar (NYSCEF Doc No. 125).
Accordingly, Alsaffar's motion to compel discovery will be denied.
CONCLUSION
Based on the foregoing, it is
ORDERED that the motion (sequence number 002) of defendant 44 Development LLC for partial summary judgment, to preemptively deny class certification, to transfer this action to Civil Court, to stay discovery, and to award it attorney's fees, is denied; and it is further
ORDERED that the cross-motion of plaintiff Abdulaziz Alsaffar to compel discovery is denied; and it is further
ORDERED that the parties shall appear for a preliminary conference on November 30, 2023 at 9:30 a.m (the December 21, 2023 date for the preliminary conference stated in the October 10, 2023 preliminary conference order (NYSCEF Doc No 145) is advanced to November 30, 2023).