Recitation, as required by CPLR 2219(a) Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed 0 Answering Affidavits 2 Replying Affidavits 3 Exhibits 4 Stipulations 0 Other 0 DECISION AND ORDER Petitioner commenced this summary holdover proceeding in April of 2019 to recover possession of one bedroom on the third floor of the house located at 35-19 161st Street, Flushing, NY 11358 (“premises”). A diagram annexed to the Petition depicts the premises as bedroom number 6 located on the third floor. Petitioner served a Thirty Day Notice of Termination which alleges that Respondent is a month-to-month tenant. The Petition alleges that the premises are not subject to Rent Stabilization or Rent Control because the building is a one family house. Respondent, by counsel, moved for leave to file an answer pursuant to CPLR §3012(d) and for summary judgment pursuant CPLR §3212(b) to dismiss the Petition. Respondent argued that dismissal was warranted because Petitioner failed to plead the correct regulatory status and failed to serve Respondent with the correct predicate notice stating a ground for eviction under the Rent Stabilization Law and Code.1 Pursuant to this Court’s July 1, 2019 Decision/Order, Respondent’s motion was granted in part and denied in part. Petitioner consented to Respondent’s answer, and Respondent’s motion seeking summary judgment was denied because the Court determined there existed issues of fact requiring a trial. Respondent now moves to reargue the Court’s July 1, 2019 Decision/Order pursuant to CPLR §2221(d). Specifically, Respondent argues that the Court should grant summary judgment and dismiss the Petition because there is no genuine issue of material fact that the premises are de facto Rent Stabilized as a matter of law because Petitioner acknowledges renting 6 bedrooms in a house that was built prior to 1974. “A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law.” (Foley v. Roche, 68 A.D.2d 558, 567 [1st Dept 1979]; CPLR §2221(d)). In reviewing Respondent’s motion to reargue, the Court notes that Petitioner does not contest two key allegations. Namely, Petitioner acknowledges that the premises were built prior to 1974 and that at one time there existed 6 bedrooms occupied by renters. By these admissions Petitioner seemingly concedes to the prima facie elements of Respondent’s argument, however, Petitioner opposes the motion on several grounds, each of which the Court will review in turn. First, Petitioner argues that his single family house cannot, as a matter of law, be converted into a six unit Rent Stabilized building. Petitioner acknowledges that to earn extra income, he rented a total of 6 bedrooms on the second and third floor of his house. However, Petitioner alleges that he did not make any alterations to the second and third floor, and that the rooms are exactly as they were when he purchased the house. Petitioner also notes that none of the rented bedrooms contains a kitchen or bathroom inside. Petitioner is correct that a single family home, utilized as such, would ordinarily not be subject to Rent Stabilization. However, Petitioner admittedly did not maintain the house as a single family home, instead, Petitioner utilized the house as a 6 bedroom rental building. This change in use, coupled with the age of the house, can bring a previously unregulated housing accommodation within the umbrella of Rent Stabilization. The Court of Appeals has long held that the Emergency Tenant Protection Act of 1974 (“EPTA”) provides “for the regulation of all housing accommodations which it does not expressly except, including previously unregulated accommodations (emphasis added).” (Matter of Salvati v. Eimicke, 72 NY2d 784, 791 [1988]). Petitioner’s argument, that his single family house could never become subject to Rent Stabilization, runs contrary to the very concept of de facto Rent Stabilization and is contrary to established case law. That Petitioner did not make any structural alterations to the house, or that the rented bedrooms were not traditional, or even legal apartments, does not alter the de facto Rent Stabilization analysis. What is dispositive is the age of the house and the number of rental units, with 6 units being the trigger point for Rent Stabilization purposes. The addition of rental units, even illegal units, can draw a previously unregulated accommodation into the realm of Rent Stabilization (See, Robrish v. Watson, 48 Misc.3d 143(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2015]). The Rent Stabilization Code, which is a codification of the Rent Stabilization Law, broadly defines a “housing accommodation” as “that part of any building or structure, occupied or intended to be occupied by one or more individuals as a residence, home, or dwelling unit or apartment.” RSC 2520.6(a). As the Court of Appeals has noted, the functional definition of a housing accommodation “is not limited by any physical or structural requirements, such as minimum square footage.” (Matter of Gracecor Realty Co., 90 NY2d at 355). Under this broad definition, “an individually rented room in a rooming house is a housing accommodation” and therefore “a building with six or more individually rented rooms is subject to rent stabilization, regardless of whether any structural changes were made to the premises.” (Robrish v. Watson, 48 Misc.3d 143(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2015]), citing, Matter of Gracecor Realty Co., Inc. v. Hargrove, 90 NY2d 350 [1997]). Under this analysis, the 6 bedrooms rented by Petitioner qualify as housing accommodations for Rent Stabilization purposes. As Petitioner’s house was built prior to 1974, Petitioner, by renting 6 bedrooms, “brought all the units in the building under rent stabilization” as a matter of law. (Commercial Hotel v. White, 194 Misc.2d 26, 27 [2d Dept 2002]). Given the age of the house, “once [it] contains six or more units, all the units in the building are brought under rent stabilization.” (124 Meserole, LLC v. Recko, 55 Misc.3d 146(A), [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2017] citing, Matter of Gandler v. Halperin, 232 AD2d 637 [2d Dept 1996]). Another argument presented by Petitioner is that the premises cannot be Rent Stabilized because, prior to the commencement of this proceeding, all other renters voluntarily vacated. At present, the only occupants are Petitioner’s family and Respondent. Even if renters vacated 5 of the 6 bedrooms prior to the commencement of this proceeding, that subsequent reduction does not change the fact that “the rent-stabilization status continues even if the number of units is subsequently reduced to less than six.” (124 Meserole, LLC v. Recko, 55 Misc.3d 146(A), [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2017] citing, Rashid v. Cancel, 9 Misc.3d 130(A), [App Term 2d Dept, 2nd and 11th Jud Dists 2005], see also, Matter of Ki Wai Leung v. Division of Hous. & Community Renewal of State of N.Y., 266 AD2d 545 [2d Dept 1999]). Lastly, Petitioner argues that a single family house cannot be converted into a 6 unit Rent Stabilized building because to do so would violate applicable zoning restrictions. Petitioner argues that a one family house could never be converted into a legal SRO with lawful housing units because the applicable zoning designation does not allow a multi-family apartment house, and that a zoning variance “would stand no chance of passage.” Petitioner argues that this situation is distinct from all other case law Respondent cites because the subject premises are contained in a single family home, as opposed to a two family home or a multiple dwelling. Petitioner cites two cases to support this alleged distinction, however, neither case is exactly on point. Petitioner cites Hornfeld v. Gaare, however the holding in that case is that it would be an unjust catch-22 situation to permit a perpetual right to renew leases under the Rent Stabilization laws for an illegal basement apartment. (See, Hornfeld v. Gaare, 130 AD2d [1st Dept 1987]). Petitioner also cites 625 West End Inc. v. Howard, however a key distinction is that the petitioner in that proceeding served a predicate notice pursuant to Rent Stabilization Code §2524.3(c), as opposed to the Thirty Day Notice of Termination Petitioner served herein, which alleges that Respondent is a month-to-month tenant. (See, 625 West End Inc. v. Howard, 2001 NY Misc. 729 [App Term, 1st Dept 2001]). Therefore, Petitioner’s effort to distinguish this proceeding from established case law is not persuasive. The 6 housing accommodations located in Petitioner’s house may very well be illegal, and indeed, might never be legalized if Petitioner’s zoning analysis is correct. The Court understands Petitioner’s position that any effort to legalize the 6 rented units may be an exercise in futility, “however, the appellate authority is clear that proper procedure must be utilized in terminating these tenancies and the rent regulatory rights should not be disregarded for the sake of expediency.” (Edison 1205 LLC v. Brickhouse, 2018 NY Misc. LEXIS 763 [Civ. Ct, Hous. Part, Queens Co. 2018]). As the premises are de facto Rent Stabilized, Respondent can only be evicted upon grounds set forth in Rent Stabilization Code §2524.3 and only after being served with the required notice under Rent Stabilization Code §2524.2. (See, 124 Meserole, LLC v. Recko, 55 Misc.3d 146(A), [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2017]; see also, Commercial Hotel v. White, 194 Misc.2d 26, 27 [2d Dept 2002]). Therefore, for the reasons stated, Respondent’s motion to reargue is granted, and after argument and review of the papers the Court modifies its July 1, 2019 Decision to grant Respondent’s motion for summary judgment and dismiss the proceeding as the premises are de facto Rent Stabilized and the termination notice served by Petitioner is legally defective for failing to comply with the requirements of terminating a Rent Stabilized tenancy. This finding is without prejudice to Petitioner presenting any applicable Rent Stabilization exclusions in a subsequent proceeding and does not deprive Petitioner of its remedy under Rent Stabilization Code §2524.3(c)(3), which provides that a tenancy may be terminated when the “occupancy of the housing accommodation is illegal because of the requirements of law and the owner is subject to civil or criminal penalties therefore.” 9 N.Y.C.R.R. §2524.3(c). This constitutes the Decision/Order of the Court, a copy of which is being mailed to all parties. Dated: September 6, 2019 Queens, New York
