Recitation, as required by CPLR §2219(a), of the papers considered in review of the instant motions.Papers NumberedNotice of Motion, Affirmation and Annexed (ex. A-E) 1Notice of Cross-Motion, Affirmation, Affidavit and Annexed (ex. 1-10) 2Affirmation in Reply and in Opposition to Cross-Motion 3Reply Affirmation in Further Support of Cross-Motion 4DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on the motion and cross-motion is as follows:PROCEDURAL HISTORYPetitioner commenced this nonpayment proceeding in December 2017, seeking possession of the subject premises based upon $10,565.00 in rent and additional rent. The petition alleges that the subject premises is exempt from the rent control laws, the Rent Stabilization Law of 1969 as amended (“RSL”) and the Emergency Tenants Protection Act of 1974 (“ETPA”), because the premises was deregulated due to a high rent vacancy before Respondents took possession. On December 8, 2017, Respondent Josefina Tejeda (“Respondent”) filed a pro se answer asserting a general denial and alleging breach of the warranty of habitability and that the rent, or part of the rent, was paid. Thereafter, Manhattan Legal Services, Inc. filed a notice of appearance on behalf of Respondent only. Respondent Ivan Tejeda has never appeared in this proceeding.Respondent, by counsel, now moves for summary judgment, pursuant to CPLR §3212, and dismissal of the petition, pursuant to RPAPL §741(4), on the basis that the petition incorrectly alleges that the subject premises is unregulated. Respondent further seeks a finding that the premises remains subject to the RSL and legal fees pursuant to RPL §234. Respondent argues that her tenancy falls within the retroactively-applied exception to exemption from regulation as promulgated in the 2015 amendment to RSL §26-511(c)(14), since the prior tenants received a preferential rent and the legal regulated rent did not exceed the $2,500.00 per month deregulation threshold prior to their vacancy.In opposition, Petitioner argues that Respondent’s motion should be denied, because it is not supported by an affidavit from someone with personal knowledge of the relevant facts. Petitioner further argues that the 2015 amendment to RSL §26-511(c)(14) occurred after the subject premises had already become deregulated and, therefore, the amendment could only be applied prospectively and not retroactively to recapture the premises under the RSL. Petitioner also cross moves for an Order dismissing Respondent’s affirmative defenses, pursuant to CPLR §3211(b) and §3212 and/or §409(b), on the basis that the subject premises was properly deregulated. In addition, Petitioner seeks leave to amend the petition to include current rent and, upon such amendment, a final judgment in the sum of $18,450.00 and the issuance of a warrant of eviction. Petitioner further seeks a default judgment, pursuant to CPLR §3215 and §409(b), against Respondent Ivan Tejeda as well as use and occupancy pendente lite, pursuant to RPAPL §745(2). (That branch of Petitioner’s cross-motion seeking use and occupancy was previously granted by Order dated August 23, 2018).DISCUSSIONIt is well settled that summary judgment is a drastic remedy and cannot be granted where there is any doubt as to the existence of a triable issue of fact or if there is even arguably such an issue. Hourigan v. McGarry, 106 A.D.2d 845, appeal dismissed 65 N.Y.2d 637 (1985); Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The function of the court is to determine whether any issues of fact exist that preclude summary resolution of the dispute between the parties on the merits. Consolidated Edison Co. v. Zebler, 40 Misc. 3d 1230A (Sup. Ct. NY 2013); Menzel v. Plotnick, 202 A.D.2d 558 (2nd Dept. 1994). The Court must accept, as true, the non-moving party’s recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. Warney v. Haddad, 237 A.D.2d 123 (1st Dept. 1997); Assaf v. Ropog Cab Corp., 153 A.D.2d 520 (1st Dept. 1989). The movant must submit admissible evidence to demonstrate prima facie entitlement to summary judgment as a matter of law and the absence of any issues of fact that require a trial. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). The movant’s failure to make such a showing mandates denial of summary judgment, regardless of the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., supra; Alvarez v. Prospect Hosp., supra. Once a prima facie showing has been made, the burden shifts to the non-moving party to submit admissible evidence sufficient to raise a triable issue of fact. Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003); Zuckerman v. City of New York, supra.Petitioner’s argument that Respondent’s motion must be denied, because it lacks a supporting affidavit from someone with personal knowledge of the facts herein is unavailing. The only factual allegation challenged by Respondent is Petitioner’s claim that the subject premises was properly deregulated. Therefore, no such affidavit is required. Instead, the issue before this Court is a matter of law, to wit: whether the subject premises was properly deregulated by the high rent vacancy exemption.A New York State Division of Housing & Community Renewal (“DHCR”) printout, annexed to Respondent’s motion, shows the registered rent roll for the subject premises filed by Petitioner. The rent roll indicates that, in 2014, the apartment was registered as rent stabilized. The tenants at that time occupied the apartment pursuant to a one-year renewal lease with a legal regulated rent of $2,330.55 and a lower preferential rent of $1,350.00. After those tenants vacated, Respondents and Petitioner entered into a one-year free market lease in February 2015. The lease, which is annexed to Petitioner’s cross motion, stated a monthly rent of $1,295.00, commenced on March 1, 2015 and expired on February 28, 2016. The lease apprised Respondents of the apartment’s prior rent stabilized status and the calculations leading to the apartment’s exemption from the RSL under the 2011 amendment, which was in effect when the parties entered into the lease. According to the relevant lease rider, Petitioner exempted the apartment by adding the permissible vacancy increase, to wit: 18.25 percent of the legal regulated rent in effect upon vacatur to the monthly legal rent ($2,330.55 x .1825 = $425.33 + $2,330.55), which increased the legal regulated rent to $2,755.88 per month. At that time, the threshold for deregulation was $2,500.00 per month. As a result, Petitioner registered the apartment as “Exempt…High Rent Vacancy” with DHCR on May 26, 2015.In 2015, the New York State Legislature amended both the ETPA and the RSL to increase the threshold legal regulated rent for high rent deregulation under RSL §26-511 from $2,500.00 to $2,700.00 per month, effective June 15, 2015. In amending RSL §26-511, language was included evincing an intent to retroactively re-impose rent regulation upon a narrow class of apartments that were already deregulated as a result of high rent vacancy, if the legal regulated rent prior to vacancy was below the $2,500.00 per month threshold and the vacating tenant was paying a lower preferential rent.Herein, the dispute lies over the interpretation of the RSL §26-511(c)(14) as amended on June 15, 2015, and its potential retroactive effect.The following is the amendment to RSL §26-511(c)(14). The 2011 enactment appears in normal font. The italicized language was repealed by the 2015 amendment and the section in bold was added by the 2015 amendment. The “prior to vacancy” language that reclaimed the previously deregulated apartments is underlined.“§12. Paragraph 14 of subdivision ‘c’ of section 26-511 of the Administrative Code of the City of New York, as amended by section 14 of part B of chapter 97 of the laws of 2011, is amended to read as follows:(14) provides 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 for such housing accommodation which may be charged upon renewal or upon vacancy thereof, may, at the option of the owner, be based upon such previously established legal regulated rent, as adjusted by the most recent applicable guideline increases and any other increases authorized by law. Where, subsequent to vacancy, such legal regulated rent, as adjusted by the most recent applicable guideline increases and any other increases authorized by law is two thousand dollars or more per month, or, for any housing accommodation which is or becomes vacant on or after the effective date of the Rent Act of 2011, is two thousand five hundred dollars or more per month, such housing accommodation shall be excluded from the provisions of this law pursuant to section 26-504.2 of this chapter. Such housing accommodation shall be excluded from the provisions of this code pursuant to section 26-504.2 of this chapter when, subsequent to vacancy: (i) such legal regulated rent prior to vacancy is two thousand five hundred dollars per month, or more, for any housing accommodation that is or becomes vacant after the effective date of the Rent Act of 2011 but prior to the effective date of the Rent Act of 2015 or (ii) such legal regulated rent is two thousand seven hundred dollars per month or more, provided, however that on January 1, 2016, and annually thereafter, the maximum legal regulated rent for this deregulation threshold shall be adjusted by the same percentage as the most recent one year renewal adjustment as adjusted by the relevant Rent Guidelines Board, for any housing accommodation that is or becomes vacant on or after the Rent Act of 2015.”Petitioner argues that to retroactively apply the statute by regulating previously legally exempted apartments, as in the case at bar, would be unjustified and an “…unconstitutional retroactive application — essentially a wholesale repudiation of the Rent Act of 201 1…” Petitioner argues that if such a radical change was intended it would have been reflected in the legislative history or some other announcement, and, therefore, no such intent can be inferred. Petitioner avers that the contemporaneous amendments to both the EPTA and RSL §26-504.2, which also address thresholds for deregulation, do not contain the “prior to vacancy” language. As such, Petitioner contends that RSL §26-504.2 and §26-511(c)(14) cannot be harmonized and are contradictory. Therefore, Petitioner contends that the court should rely on the language of the ETPA and RSL §26-504.2 and not the language of RSL §26-5 1 1(c)(14).Respondent argues that the retroactive effect of the 2015 amendment was intentional and does not create an inconsistency. Respondent argues that RSL §26-504.2 is a general deregulation statute for rent stabilized apartments and that its amendment language permitted deregulation generally to apartments with legal rents that exceed $2,500.00 per month upon vacancy. However, RSL §26-511 (c)( 14) is a specific statute that serves to evince the legislative intent to revoke deregulation of apartments that had become vacant upon the enactment of the 2011 and 2015 amendments, where the legal rent for a vacating tenant was below the $2,500.00 per month threshold and a lower preferential rent was being collected.This issue of the correlation between the two sections of the RSL was previously addressed by the court in 517 West 212 St. LLC v. Musik-Ayala, 58 Misc. 3d 652 (Civ. NY2017) and Rose Realty Assocs. v. Gendelev, 2017 NYLJ Lex1s 3749 (Civ. Kings 2017). Relevant here, in 517 West 212 St. LLC Musik-Ayala, the court dealt with identical to the facts herein, namely a vacatur prior to enactment of the 2015 amendment. The court, after exhaustive analysis of the statutory construction, concluded that the two sections can be harmonized to yield a clear legislative intent to reclaim certain apartments under the RSL and that the legislature has the power to enact retroactive “taking laws”, when it promotes a strong public interest. 517 West 212 St. LLC v. Musik-Ayala, supra. In Rose Realty Assocs. v. Gendelev, the court, posed with similar facts, followed the reasoning in 517 West 212 St. LLC v. Musik-Ayala, supra. Rose Really Assocs. v. Gendelev, supra.Following the sound and persuasive reasoning in 517 West 212 St. LLC v. Musik-Ayala, this Court also holds that the 2015 amendment to RSL §26-511(c)(14) serves to retroactively retain the subject apartment under the RSL. As such, the petition is fatally defective, in that it fails to state the proper regulatory status of the subject premises as required by RPAPL §741.Under RPAPL §741, where a tenancy is subject to a specific type of regulation, the petition must state the premises’ regulatory status, as it may determine the scope of the parties’ rights and defenses. Failure to do so renders the petition jurisdictionally defective and requires dismissal. MSG Pomp Corp v. Jane Doe, 185 A.D.2d 798 (1st Dept. 1992,).CONCLUSIONIn light of the foregoing, Respondent’s motion seeking summary judgment, pursuant to CPLR §32 12, is granted. This Court also grants summary judgment to Respondent Ivan Tejeda on the same basis, pursuant to CPLR §3212(b), which provides that “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.”Accordingly, it is Ordered that:The petition is hereby dismissed, pursuant to RPAPL §741. MSG Pomp Corp v. Jane Doe, supra.That branch of Respondent’s motion seeking an Order finding that the premises is still rent regulated is granted. This Court finds that the subject premises was never exempted from rent regulation and remains subject to the RSL.Respondent’s request for legal fees is denied, since Respondent did not assert a counterclaim seeking legal fees pursuant to RPL §234.Petitioner’s cross-motion is denied, in its entirety, as academic.This constitutes the Decision and Order of the Court.Dated: December 27, 2018New York, New York
