17-328. 366 WEST 30TH STREET, L.L.C., pet-lan-app, v. JOSE AVILA A/K/A JOSEF AVILA, res-ten-res, -and- MARILU AVILA, res-unt-res, -and- “JOHN DOE” AND “JANE DOE,” res-unt — Order (Jean T. Schneider, J.), dated January 27, 2017, modified to grant landlord’s motion for summary judgment as against respondent-tenant Jose Avila only, to dismiss respondent-undertenant Marilu Avila’s first and second affirmative defenses and to permit landlord to renew its application for additional discovery; as modified, order affirmed.Landlord’s motion for summary judgment of possession should have been granted as against respondent-tenant Jose Avila, given tenant’s admitted vacatur of the subject rent stabilized hotel accommodation, Room 14 at 366 West 30th Street.However, summary judgment was properly denied as against respondent-undertenant. Given the allegations in landlord’s petition, that the “apartment is subject to the Rent Stabilization Law of 1969 [] in that the apartment is located in a Single Room Occupancy Hotel,” any failure of undertenant’s counsel to specifically assert in her responsive pleading a claim to possession as a “permanent tenant” under Rent Stabilization Code [9NYCRR] §2520.6(j) did not preclude undertenant from raising the issue (see Einhorn v. McCloud, 57 Misc 3d 139[A], 2017 NY Slip Op 51323[U][App Term, 1st Dept 2017]). A triable issue exists as to whether “Rooms 14 and 15 are occupied as a single unit” and whether undertenant herein, the tenant of Room 15, was the “sole remaining tenant” of that combined unit. Contrary to respondents’ claim, landlord is not collaterally estopped from challenging whether these rooms constituted a combined residence, since that issue was not actually litigated and determined in the prior holdover proceeding between the parties (see Kaufman v. Eli Lilly & Co., 65 NY2d 449, 456 [1985]).Undertenant’s succession defense should have been stricken. Tenant vacated the premises in 1997 when he relocated to Baldwin, New York, but admittedly continued to pay rent “for a very long period after he moved out,” slept in the premises several nights a week while he worked at a Manhattan hospital, and held himself out as the tenant in sworn statements and affidavits. Thus tenant cannot be deemed to have permanently vacated at any time prior to the 2013 commencement of this proceeding, and there being no showing that undertenant “resided with the tenant” in the premises (Rent Stabilization Code [9 NYCRR] §2523.5[b][1]) during the requisite period immediately preceding the tenant’s permanent vacatur, undertenant’s succession claim must fail (see Third Lenox Terrace Assoc. v. Edwards, 91 AD3d 532 [2012]).Our disposition is without prejudice to landlord renewing its request for discovery before the Civil Court. Civil Court incorrectly concluded that landlord waived its right to seek additional discovery.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 6, 201717-206. AURORA ASSOCIATES, LLC, pet-lan-app, v. RAFFAELOLO LOCATELLI, res-ten-cross-appellant — Order (Jack Stoller, J.), dated November 28, 2016, modified to grant tenant’s cross motion for attorneys’ fees and to remand the matter to Civil Court for a hearing to determine the reasonable attorneys’ fees due tenant; as modified, order affirmed, without costs.Civil Court properly granted tenant’s cross motion for summary judgment dismissing the holdover petition. Notwithstanding the predecessor owner’s 1997 purchase of a prior tenant’s [Lombardi's] improvements and/or rights under Multiple Dwelling Law §§286(6) and (12), the loft unit at issue remained subject to rent regulation, since this pre-1974 building contained six or more residential units and the unit remained residential (see Acevedo v. Piano Bldg. LLC, 70 AD3d 124 [2009], appeal withdrawn 14 NY3d 884 [2010]; 182 Fifth Ave., v. Design Dev. Concepts, 300 AD2d 198 [2002]; VVV Partnership v. Moran, 10 Misc 3d 130[A], 2005 NY Slip Op 51958[U] [App Term, 1st Dept 2005]; 29 RCNY 2-10[d][2], 2-10[d][4][iii]).Contrary to the parties’ respective contentions, the market value rent ($4,250) charged to the tenant immediately following Lombardi constituted neither a basis for high rent deregulation (see Rent Stabilization Code [9 NYCRR] §2520.11[r][7][ii]) nor an illegal rent (see Multiple Dwelling Law §286[6]; 29 RCNY 2-07[d][4][iii]). In any event, for purposes of the rent overcharge counterclaim, no basis was shown to examine the rental history beyond the statutory four-year look-back period (see CPLR 213-a; see also Rent Stabilization Law [Administrative Code of City of N.Y.] §26-516[a][2]; Matter of Boyd v. New York State Div. of Hous. & Community Renewal, 23 NY3d 999 [2014]; Matter of Grimm v. State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358, 366-367 [2010]). Thus, the overcharge counterclaim was properly dismissed.However, contrary to the motion court’s finding that “mixed” results were achieved in this proceeding, tenant is entitled to recover his reasonable attorneys’ fees as the “prevailing party” in this litigation pursuant to the lease and the reciprocal provisions of Real Property Law §234, and the matter is remanded for an assessment on that issue. Although tenant was unsuccessful in the prosecution of his rent overcharge counterclaim, tenant received “substantial relief” on the central relief sought by landlord (see Board of Mgrs. of 55 Walker St. Condominium v. Walker St., 6 AD3d 279, 280 [2004]). The “core” of the parties’s dispute, as acknowledged by the motion court itself, was the rent regulatory status of the subject unit, which resulted in the dismissal of the underlying holdover proceeding on the merits.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 6, 201717-276. MAUTNER-GLICK CORPORATION AND L. WAY CHARLTON, LLC, pet-lan-app, v. DIEGO RODRIGUEZ, res-ten-res — Order (Michelle D. Schreiber, J.), dated January 11, 2017, insofar as appealed from, reversed, with $10 costs and matter remanded for a hearing consistent herewith.In a so-ordered stipulation settling the underlying nuisance holdover proceeding, tenant agreed to refrain from engaging in conduct similar to that alleged in the notice of termination and petition, i.e., harassing and threatening other tenants in the building, during a specified probationary period. The stipulation also provided that in the event of a breach, landlord may restore the matter to the calendar “for a hearing on the issue of whether [tenant] has engaged in such conduct,” and if the court finds that a breach has occurred landlord is entitled to a judgment of possession and warrant of eviction.Upon landlord’s timely motion to restore the matter, based on an affidavit of tenant’s upstairs neighbor alleging multiple recent incidents of harassing behavior by tenant, Civil Court should have set the matter down for a hearing pursuant to the terms of the stipulation. “Strict enforcement of the parties’ stipulation…is warranted based upon the principle that the parties to a civil dispute are free to chart their own litigation course” (Mill Rock Plaza Assoc. v. Lively, 224 AD2d 301 [1996]; see Trio 90 LLC v. Williamson, 53 Misc 3d 149[A], 2016 NY Slip Op 51647[U] [App Term, 1st Dept 2016]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 6, 2017
