17-446. 528 WEST 123RD STREET LLC, pet-lan-res, v. FRANKLIN BAPTISTE, “JOHN DOE” AND “JANE DOE,” res-lic-app — Final judgment (Jean T. Schneider, J.), entered November 14, 2016, insofar as appealed from, affirmed, with $25 costs.Giving due deference to the trial court’s findings of fact and credibility (see Claridge Gardens v. Menotti, 160 AD2d 544 [1990]), we agree that appellant Eustay did not meet his affirmative obligation to establish succession rights to the subject SRO unit. The record shows that appellant did not “reside with” with his father, the deceased stabilized tenant, for the requisite two-year period immediately preceding the father’s death in May 2015 (Rent Stabilization Code [9 NYCRR] §2523.5 [b][1]). Appellant, who began residing with his father in August 2012, has been incarcerated since November 2013, and will remain incarcerated until at least March 2021, which is his earliest possible release date. Thus, the required “simultaneous tenancy” (Matter of Glass v. Glass, 29 AD3d 347, 349 [2006]) by appellant with the stabilized tenant for the two years immediately prior to the tenant’s death was absent.We reject, as did the trial court, appellant’s contention that his prolonged (eight-and-one-half year) incarceration, which resulted in his physical absence from the premises for 18 months during the relevant two-year period, is a protected temporary absence pursuant to the safe harbor protection of RSC §2523.5(b)(2) (see Emay Props. Corp. v. Norton, 136 Misc 2d 127 [1987]; see also RSC §2520.6[u][3]). RSC §2523.5(b)(2), whose terms protect from eviction a family member who “temporarily relocates” from a stabilized apartment for certain enumerated reasons (i.e., military service, full time student, relocation for employment) and whose residency would otherwise be “interrupted” by the relocation, cannot be read so broadly as to allow a would-be successor to stake a claim to a stabilized unit based upon a short-term (15-month) occupancy of the unit, followed by a lengthy incarceration, which resulted in a physical absence from the premises for the 18 months immediately preceding the tenant’s death. Adopting the contrary construction urged by appellant, and allowing him to succeed to an apartment from which he was physically absent for several years and cannot occupy until 2021, would hardly serve to further the purpose of the Code’s family succession provision, namely, to allow “continuity in possession” by a qualified family member not named on the lease (245 Realty Assoc. v. Sussis, 243 AD2d 29, 32 [1998], quoting Hughes v. Lenox Hill Hosp., 226 AD2d 4, 15 [1996], lv denied 90 NY2d 829 [1997]), or the Code’s primary residence requirement, which was intended to alleviate the shortage of affordable housing in New York City by returning underutilized apartments to the marketplace (see Hughes v. Lenox Hill Hospital, 226 AD2d 4, 15-16 [1996], lv denied 90 NY2d 829 [1997]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 28, 2018By: Shulman, P.J., Gonzalez, Cooper, JJ.17-352. GERALD ROBINSON, plf-res, v. TIMOTHY K. ROCK AND ROCK CONSULTING LLC, def-app — Judgment (Adam Silvera, J.), entered March 29, 2017, affirmed, without costs.Upon our review of the record developed at the bench trial, and giving due deference to the court’s finding that plaintiff testified “credibly [and] consistently,” and that the individual defendant’s testimony was “not credible,” we find no basis to substitute our judgment for that of the trial court in awarding plaintiff a refund of the $25,000 consulting fee that he previously paid to defendant. A fair interpretation of the evidence supports the court’s express finding that defendant “failed to establish that he did any work under the agreement and failed to provide the court any reports or plans, or executive summaries” he purportedly prepared pursuant to the agreement.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 28, 2018By: Shulman, P.J., Gonzalez, Cooper, JJ.17-310/313. PARKSIDE GROUP, pet-lan-app, v. HOWARD LEADER AND ANGIE LEADER, res-ten-res -and- “JOHN DOE” AND “JANE DOE,” res-unt; PARKSIDE GROUP, pet-lan-app, v. HOWARD LEADER AND ANGIE LEADER, res-ten-res, -and- “JOHN DOE” AND “JANE DOE,” res-unt — Final judgment and order (Sabrina B. Kraus, J.), entered, respectively, on or about November 30, 2015 and September 23, 2016, affirmed, with one bill of $25 costs. Orders (Jack Stoller, J.), entered, respectively, March 28, 2016 and October 13, 2016, affirmed, without costs.Civil Court properly considered events beyond the four-year statute of limitations to determine whether the apartment is rent regulated (see East W. Renovating Co. v. New York State Div. of Hous. & Community Renewal, 16 AD3d 166 [2005]). “[A] tenant should be able to challenge the deregulated status of an apartment at any time during the tenancy” (Gersten v. 56 7th Ave. LLC, 88 AD3d 189, 199 [2011]).We agree that landlord failed to establish that expenditures for individual apartment improvements (IAIs) in the year prior to the high rent vacancy justified the $927.75 increase in the rent. The record shows, and the trial court found, that landlord failed to submit adequate documentation of its claimed improvements, or witness testimony that demonstrated the nature and scope of the work performed (cf. Jemrock Realty Co. LLC v. Krugman, 72 AD3d 438 [2010], lv dismissed 15 NY3d 866 [2010]; see Matter of Sohn v. New York State Div. Of Hous. & Community Renewal, 258 AD2d 384 [1999]).The court’s dismissal of the nonpayment petition “without prejudice” merely preserved landlord’s right to maintain a second nonpayment proceeding that properly alleged the rent regulatory status of the apartment. Since the subsequent holdover petition commenced by landlord asserted the identical issue based on the identical facts as the prior nonpayment proceeding — i.e., that the apartment was not subject to rent regulation — and landlord had a full opportunity to litigate that issue in the nonpayment proceeding, the doctrine of collateral estoppel barred landlord from prosecuting its free-market lease expiration claim in the holdover proceeding (see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349-350 [1999]). In any event, even assuming that the dismissal of the nonpayment proceeding did not collaterally estop landlord from relitigating the issue, the court in the holdover proceeding properly determined that landlord’s submissions in that latter proceeding similarly failed to establish that the apartment was exempt from rent regulation.Landlord’s motion seeking a new trial of the nonpayment proceeding on the basis of purportedly newly discovered evidence (see CPLR 5015[a][2]) was properly denied, because it failed to demonstrate that its new evidence of the extent and cost of IAIs, which landlord proffered for the first time approximately seven months after trial, could not have been discovered with due diligence prior to the conclusion of the trial (see Bongiasca v. Bongiasca, 289 AD2d 121, 122 [2001]; Olwine, Connelly, Chase, O’Donnell & Weyher v. Valsan, Inc., 226 AD2d 102, 103 [1996]). Indeed, such evidence was admittedly contained in boxes in the basement storage area of the subject eight-unit building, and under the control of the building superintendent, who was also one of the partners of landlord-appellant and who, himself, performed “some of the work done to [the subject apartment] in 1993 and 1994.”Nor was there any improvident exercise its discretion in the denial of landlords’ motion for renewal in the holdover proceeding, since landlord did not offer a reasonable justification for its failure to submit the purportedly new IAI evidence either in opposition to tenant’s summary judgment motion or in support of landlords’ initial cross motion for summary judgment (see CPLR 2221[e][3]; see generally Excelsior 57th Corp. v. Excel Assoc., 126 AD3d 479 [2015]; Matter of Mouawad, 61 AD3d 1169 [2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 28, 2018
