DECISION & ORDER In this holdover proceeding purporting to terminate Respondent Nargis Khusainova’s month-to-month tenancy, Khusainova moves for leave to interpose an answer and, upon leave being granted, for summary judgment pursuant to CPLR R. 3212 on her first affirmative defense that the subject premises is subject to rent stabilization. Alternatively, Kusainova moves to dismiss the petition pursuant to CPLR R. 3211 (a) (7). Petitioner opposes the motion in its entirety. Factual and Procedural Background Petitioner Ilya Usherenko seeks possession of the subject premises known as “Apt 4″ located at 3043 Brighton 5th Street in Brooklyn. The petition alleges that the subject premises are not subject to rent control or the Rent Stabilization Laws and that the building is a three-family dwelling. In Respondent’s proposed answer annexed to the moving affirmation, Khusainova asserts as her first affirmative defense that the subject premises, where she lives with her minor daughter, is rent-stabilized because the subject building was built before 1974 and contains six or more residential units. Arguments On her motion, Respondent contends that she has established her defense of rent stabilization as a matter of law because Petitioner admits that the subject building was built before 1974 and contains at least six units. In opposition, Petitioner argues that Khusainova fails to meet her burden on the motion. Moreover, Petitioner in his affidavit asserts that the subject building is not subject to rent stabilization because only four of the units are currently occupied. Discussion On a motion for summary judgment, the movant carries the initial burden of tendering sufficient, admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). The court’s function is “issue-finding, rather than issue-determination” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), and the evidence must be construed in the light most favourable to the non-moving pary (see Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 340 [2011]). Once a movant meets its initial burden on summary judgment, the burden shifts to the opposing party “to show facts sufficient to require a trial of any issue of fact” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Pursuant to the Rent Stabilization Code [9 NYCRR] §2520.6[a], a “housing accommodation” is “[t]hat part of any building or structure, occupied or intended to be occupied by one or more individuals as a residence, home, dwelling unit or apartment.” It is undisputed that the subject building was built before 1974. Pursuant to a printout from New York City Department of Housing Preservation and Development (HPD)’s website, the subject building contains one “A” unit and six “B” units (see Respondent’s Exhibit E). Paradoxically, Petitioner, in an affidavit annexed to the opposition papers, admits there are a total of six “rooms” and one “apartment” in the building. He further annexes a diagram that, along with his affidavit, yields the following information: “Room Apt 1,” on the first floor, was once occupied by Usherenko’s parents; “Room 2,” on the second floor, is occupied by Denis Shepelev; “Room 3,” on the second floor, is occupied by Alexander Dougasm; “Room 4,” on the second floor, once occupied by Khusainova, is currently “vacated” — a point that Khusainova disputes; “Room 5,” in the basement, was last occupied by Vladimir Baladin; “Room 6,” in the basement, is occupied by Serget Carpenke; “Room 7,” in the basement, is occupied by Boris Shaframov. Petitioner further alleges that no one currently lives in the first floor apartment, that only Alexander Dougasm lives on the second floor, and that Serget Carpenke and Boris Sharamov live in the basement. A building built before 1974 containing six or more housing accommodations renders all the units in the building subject to rent stabilization (124 Meserole, LLC v. Recko, 55 Misc 3d 146(A) [App Term, 2d Jud Dist. 2017]). Commonly known as “de facto” rent stabilization, this doctrine applies regardless of whether any structural changes were made to the premises (Gracecor Realty Co., Inc. v. Hargrove, 90 NY2d 350, 355 [1997]), the units in the building conform with building-code or other requirements (see 124 Meserole, LLC, 55 Misc 3d at *2), or the illegal use of the building has ended (Robrish v. Watson, 48 Misc 3d 143(A) [App Term 2015]). Here, the record clearly establishes that “Room Apt 1″ and “Rooms” 2-7 were occupied as separate dwellings or apartments. Thus, they fall within the definition of a “housing accommodation” pursuant to RSC §2520.6(a). Given the HPD registration and Petitioner’s admissions that the subject property contains or contained at least six housing accommodations, Respondent meets her initial burden entitling her to summary judgment on her first affirmative defense. In opposition, Petitioner fails to raise a triable issue of fact. Contrary to Usherenko’s implied contention, housing accommodations that are later vacated do not exempt the building from rent stabilization status (24 Meserole, LLC, 55 Misc 3d at *2 ["the rent-stabilization status continues even if the number of units is subsequently reduced to less than six"] citing Rashid, 9 Misc3d 130(A)). ORDERED that Respondent’s motion for summary judgment is granted; and it is further ORDERED the petition is denied and the proceeding is dismissed. Dated: October 31, 2019
