The following papers numbered 1 to 5 read on this Motion:Papers NumberedNotice of Motion and Affirmation Annexed 1, 2Affirmation in Opposition 4Reply Affirmation 5Exhibits 3Decision/Order Petitioner commenced this holdover proceeding on March 28, 2018 after serving respondents with a 30 day notice of termination alleging that respondents held the apartment under monthly hiring. The petition alleges that the subject apartment is not subject to rent regulation because it is a cooperative apartment. Further, the petition states that respondents’ written rental agreement expired, and petitioner offered a renewal lease which respondents did not sign. Respondents, Nicole Petropiento and Vincent Petropiento, appeared by counsel, and moved to dismiss the proceeding pursuant to CPLR §3211 (a) (1) and (7) based on their claims that petitioner improperly pleaded the regulatory status of the subject apartment. The court denied respondents’ motion and respondents now move to reargue their motion to dismiss.Respondents seek reargument of the underlying motion based on their claim that the apartment is subject to the Rent Stabilization Law, and the court based its decision on the Rent Stabilization Code. Therefore, respondents assert that the petition should be dismissed as petitioner failed to properly plead that the apartment is rent stabilized.Petitioner argues that respondents incorrectly presume that the unit was never utilized as a cooperative apartment. Petitioner asserts that although no shares were allocated to the apartment at the time of the building’s conversion from a Mitchell-Lama Cooperative to a market rate cooperative, the subject unit was always a part of the cooperative from 1963, when the Certificate of Occupancy was issued, up to the present. Petitioner maintains that the 2015 Dissolution and Conversion plan converted all of the 365 units in the two buildings, which comprise the cooperative, to privately held cooperative units and provided for future allocation of shares to the subject apartment.Pursuant to NYC Administrative Code §26-504, the Rent Stabilization Law applies to Class A multiple dwellings not owned as a cooperative or a condominium. Further, 9 NYCRR §2520.11 provides that the Rent Stabilization Code applies to any class or classes of housing accommodations made subject to regulation pursuant to the Rent Stabilization Law or any other provision of law except RSC §2520.11 (l), housing accommodations contained in buildings owned as cooperatives. In De Santis v. White Rose Assoc., 152 Misc 2d 567, 571-572, 578 NYS2d 363 [Sup Ct NY County, 1991]), the court stated “the wording of the Rent Stabilization Law and Rent Stabilization Code indicate that anytime a multiple dwelling is not owned as a cooperative or condominium (or other enumerated special status) its tenants are protected under these rent laws.” Further, the court in De Santis points to RSC §2520.11 which provides that the Code applies to all or any class or classes of housing accommodations for so long as they maintain the status indicated below (emphasis added)RSC §2520.11 (l) housing accommodations contained in buildings owned as cooperatives or condominiums on or before June 30, 1974.Petitioner’s Dissolution and Conversion plan allocated shares to 360 of the 365 residential units in the two buildings which comprise the cooperative. The introduction of the plan states on page 9 that there are two apartments in the lobby of each building which are rented to non shareholder tenants. The subject apartment is one of the aforementioned apartments. Respondents contend that pursuant to RSL §26-504, respondents’ apartment is not a cooperative apartment as it is not owned as a cooperative apartment, and it is not part of the conversion from a Mitchell-Lama cooperative to a market rate cooperative.There is no dispute that the subject buildings were built prior to the enactment of the Rent Stabilization Law in 1969. The Dissolution plan does not show that any shares were allocated to the respondents’ apartment prior to the dissolution or after the conversion. If petitioner dissolved the Mitchell-Lama cooperative without conversion to a market rate cooperative, all of the apartments may be subject to rent stabilization pursuant to 9 NYCRR §2520.11. The law would afford the protection of rent stabilization to former proprietary lessees if the cooperative dissolved, and respondents, as renters, should not be entitled to less because they are not part of the cooperative. Contrary to petitioner’s assertion, the plan does not reserve the right to allocate shares in the future. There was no conversion of respondents’ apartment to any type of cooperative status, and petitioner states no other basis for the apartment’s exemption from rent stabilization other than it is a cooperative apartment. Therefore, the court finds the apartment is subject to rent stabilization as it not a cooperative apartment.Based on the foregoing, respondents motion to reargue is granted, and upon reargument, the motion is granted and the petition is dismissed.This constitutes the decision and order of this court.Dated: April 26, 2019
