DECISION/ORDER Petitioner commenced this holdover proceeding by thirty day notice of termination terminating respondent’s tenancy in that respondent has no lease and the premises are not subject to any regulation. Respondents appeared with counsel and now by motion, seeks to have the amended answer deemed served and filed and seeks summary judgment pursuant to CPLR §3212 in that the documentary evidence establishes that the premises are subject to rent stabilization and petitioner has failed to plead the correct regulatory status. Petitioner opposes the motion and argues that although movant resides in a room in the basement, it has no kitchen and bathroom and rent was never collected from her as she was a family member. The following facts are undisputed, the premises was built before 1974 and contained six residences pursuant to the I-card attached hereto as respondent’s exhibit “D” to the motion. The premises contained two units on the first floor, two on the second floor and two on the third floor. In 1990 a new certificate of occupancy was issued for the premises for a five unit building. Respondents argue that properties constructed before 1974 which contained six or more units are subject to rent stabilization law. If the number of apartments is reduced to less than six after the base date, such reduction cannot effect an exemption from the regulations (See Shubert v. NYS Division of Housing and Community Renewal, 162 AD2d 261 [1st Dept 1990]). Respondent submits an affirmation indicating that she resides in a sixth unit in the basement and that there is an additional unit as well in the basement where at one time a seventh tenant resided. Petitioner in opposition argues that respondent resides in a room in the basement with no kitchen and bathroom and that respondent is a relative of his. Petitioner claims he never charged the respondent rent and the other room is used by him for storage purposes only. Petitioner attaches his closing deed which indicates a five family building and argues that he bought the building as is, and has never altered it. The Rent Stabilization Code defines a “housing accommodation” as “that part of any building or structure occupies or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment…” 9 NYCRR 2520.6(a). Courts have held that reducing the number of units from six units to a number below six units does not affect the rent regulated status of the remaining units (see Rashid v. Cancel, 9 Misc3d 130(A) [App Term 2nd & 11th Jud Dists 2005]); Commercial Hotel Inc., v. White, 194 Misc2d at 27; Joe Lebnsn LLC v. Olivis 39 Misc3d at 33. See also Matter of Ki Wai Leung v. Div. Of Housing & Community Renewal of State of N.Y., 266 Ad2d 545 [1999] where the court found that a subsequent reduction in the number of units, even after a violation placed by Department of Housing Preservation and Development, does not exempt the remaining units from rent stabilization. Herein, the issuance of a subsequent new certificate of occupancy would not alone, exempt the remaining units from rent stabilization. Likewise, the mere fact that petitioner purchased what he believed to be a five unit building and lacked knowledge of any prior certificate of occupancy issued, does not rise to an exemption from rent stabilization as the petitioner acquired the building “subject to those rights and protections enjoyed by the building’s tenant’s at the time of the acquisition” (See 25 Park Ave. Assoc. v. DeHoyas, 125 Misc.2d 432 [1984]). Respondent asserts that the premises are subject to rent stabilization as merely reducing the number of units from six to five units after 1974 would not serve to deregulate a previously stabilized unit. Respondent also argue that currently the premises are once again being used as a six unit dwelling. Respondent seeks dismissal of the premises as the petition fails to state cause of action to proceed in this holdover proceeding and adequately fails to describe the premises. Summary judgment will be granted “if upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Zuckerman v. City of New York, 49 NY2d 557 [1980]). In considering a summary judgment motion, the courts function is to determine whether a material issue of fact exists, not to determine said issues (Esteve v. Abad, 271 AD 725 [1st Dept 1947]). Summary judgement should be granted when the moving party makes a prima facie showing of entitlement to judgment as a mate of law, giving sufficient evidence to eliminate any material issues of fact from the case. See (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Moreover, “…when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trail calendar and thus deny other litigants the right to have their claims promptly adjudicated.” See (Andre v. Pomeroy, 35 NY2d 361 [1974]). Mere conclusions, expressions of hope or conjectures or allegations are insufficient to defeat a motion for summary judgment. See (Santoni v. Bertelsmann Property Inc., 21 AD3d 712 91st Dept 2005). As the relevant facts are not in dispute here, that the premises were built before 1974 and contained six residential units and that after said date the number of units were reduced to five units. Therefore, the premises remains subject to rent stabilization. Respondent clearly resides in a sixth unit. The predicate notice is therefore defective under the RSL and RSC and the petition fails to accurately plead the regulatory status of the premises. The respondent’s motion to dismiss the petition is granted and the petition is dismissed with prejudice. This constitutes the decision and order of this court. Dated: August 16, 2019 Brooklyn, New York
