Opinion
No. 153859/2014.
07-12-2016
Samuel Jed RUBIN, Plaintiff, v. DECKER ASSOCIATES LLC, Defendant.
David E. Frazer, Esq., for plaintiff. Kossoff, PLLC Attorneys at Law (Joseph Goldsmith of counsel), for defendant.
David E. Frazer, Esq., for plaintiff.
Kossoff, PLLC Attorneys at Law (Joseph Goldsmith of counsel), for defendant.
GERALD LEBOVITS, J.
Recitation, as required by CPLR 2219(a), of the papers considered in reviewing defendant's motion for summary judgment, and plaintiff's cross-motion for summary judgment.
| Papers | Numbered |
|---|---|
| Defendant's Notice of Motion | 1 |
| Defendant's Memorandum of Law | 2 |
| Plaintiff's Notice of Cross–Motion | 3 |
| Plaintiff's Memorandum of Law | 4 |
| Defendant's Reply Memorandum of Law | 5 |
| Defendant's Reply Affirmation | 6 |
| Affidavit of Martin Zabel | 7 |
| Affidavit of Margaret Clemons | 8 |
| Affidavit of Franklin Meyer | 9 |
| Affidavit of Warren Ser | 10 |
Plaintiff, Samuel Jed Rubin, contends that his former apartment is subject to the Multiple Dwelling law (MDL), a/k/a the Loft Law, or to the Emergency Tenant Protection Act of 1974 (ETPA). Defendant moves for summary judgment under CPLR 3212(b) and (e) to dismiss plaintiff's causes of action. Plaintiff cross-moves for summary judgment.
For the court to grant summary judgment “it must clearly appear that no material and triable issue of fact is presented.” (Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441 [1968] ). Triable issues of material fact must be more than “[b]ald conclusory assertions, even if believable.” (Kramer v. Harris, 9 A.D.2d 282, 283 [1st Dept 1959].)
In support of its motion for summary judgment, defendant argues that apartment 8F is not subject to rent regulation under Article 7–C of the Loft Law. Defendant asserts apartment 8F has never been an Interim Multiple Dwelling (IMD). Defendant further argues that apartment 8F was not occupied residentially during the window period beginning on April 1, 1980, and ending on December 1, 1981. Defendant argues that during the window period, apartment 8F was known as unit 805 and that unit 805 was used solely for commercial purposes. Therefore, defendant contends apartment 8F was not subject to the Loft Law.
It is undisputed that plaintiff is a former tenant of apartment 8F in the building located at 33 Union Square West, New York, New York. It is undisputed that two covered residential units were on the eighth floor. The first, known as apartment 8R, was occupied by Neil Deutsch. The second covered unit was unit 805. (Defendant's Notice of Motion Exhibit D.) Plaintiff asserts that defendant meant for the unit occupied by Franklin Meyer to be covered.
Meyer resided in a unit on the eighth floor during the window period, but no evidence shows that his unit was the unit intended to be covered during the window period. Meyer's affidavit does not identify by name the unit in which he lived. (Aff of Franklin Meyer at 3.) Whether Meyer resided on the eighth floor during the relevant window period does not prove that defendant mistakenly registered unit 805 with the Loft Board.
Other than plaintiff's conclusory assertion that defendant mistakenly registered unit 805 during the window period, the court has no evidence to support the conclusion that unit 805 was mistakenly registered. Defendant's IMD registration application shows that unit 805 was the covered unit during the relevant window period. (Defendant's Notice of Motion Exhibit D.) Dr. Martin Zabel was the tenant of record for unit 805. At no point during Dr. Zabel's tenancy did he reside in unit 805.
Plaintiff's evidence of a letter sent by defendant to the Loft Board on March 2, 2011, does not raise a question of fact that unit 805 was the covered unit during the relevant window period. The letter proves merely that unit 805 was combined to form apartment 8F. (See Plaintiff's Notice of Cross–Motion Exhibit C.) It does not prove that Loft Law coverage is extended to the larger apartment. Plaintiff also offers a post-it note as part of his evidence to show unit 805 is now 8F. (Plaintiff's Notice of Motion Exhibit D.) This post-it note has no bearing on whether apartment 8F is covered under the Loft Law. It shows only that unit 805 was combined to form apartment 8F. The letter to the Loft Board and the post-it note do not raise questions of fact about whether unit 805 was the covered unit during the relevant Loft Law window period.
In 1998, after a final residential Certificate of Occupancy was issued to the Building in 1997, apartment 8F was listed as an unregulated apartment. (Defendant's exhibit O.) This evidence further proves that apartment 8F was never intended to be a covered unit subject to the Loft Law.
Apartment 8F is not subject to rent regulation under the ETPA. A landlord may charge “first” or “free market” rent “when the perimeter walls of the apartment have been substantially moved and changed and where the previous apartment, essentially, ceases to exist.” (Matter of 300 W. 49th St Assoc. v. N.Y. St. Div. of Hous. & Community Renewal, Off. of Rent Admin., 212 A.D.2d 250, 253 [1st Dept 1995].) Plaintiff's argument that unit 805 and apartment 8F are the same unit is without merit. Unit 805 was combined in 1997 with four other units to create apartment 8F. Apartment 8F is five times the size of unit 805.
The perimeter walls of apartment 8F were substantially moved when defendant created apartment 8F. Because the perimeter walls were substantially moved, defendant was permitted to charge a “first” rent for the newly formed apartment. The ETPA excludes from rent regulation units with legally regulated rent over $2000. Defendant has proven that the first rent charged after apartment 8F was created was $6995. (Defendant Notice of Motion Exhibit P.) A New York State Housing and Community Renewal opinion letter provides that “if the first rent, negotiated between owner and tenant, is $2000 per month or more, ... the combined apartment would be high-rent vacancy decontrolled.” (N.Y. St Div of Hous & Community Renewal Opinion Letter Jan 25, 2001 [citing 9 NYCRR 2520.11(r)(10) ] .) Because the first rent defendant charged exceeded $2000, apartment 8F is expressly decontrolled from rent stabilization.
For the foregoing reasons, this court grants defendant's motion for summary judgment in its entirety, and plaintiff's cross-motion is denied as academic.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted and that plaintiff's cross-motion for summary judgment is denied and this action is dismissed; and it is further
ORDERED that defendant must serve a copy of this order with notice of entry on all parties and the County Clerk's office, which is directed to enter judgment accordingly.
This opinion is the court's decision and order.