Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion: PAPERS NUMBERED NOTICE OF MOTION, AFFIRMATION AND AFFIDAVITS ANNEXED: ORDER TO SHOW CAUSE AND AFFIDAVIT ANNEXED: 1 ANSWERING AFFIDAVIT, AFFIRMATION: 2 REPLYING AFFIRMATION: EXHIBITS: OTHER: DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Petitioner commenced this summary holdover proceeding seeking possession of the premises known as 697 Evergreen Avenue, Brooklyn (the “Building”) apartment 3R (the “Apartment’). The Petition and predicate notice allege that the respondents were month to month tenants and that the Building contained “less than six units” and was therefore exempt from rent regulation. Respondent Reinaldo Gonzalez appeared, represented by counsel, and interposed an answer asserting, inter alia, that the Apartment is subject to rent stabilization by reason of being contained in a building built prior to 1974 and having contained at least six separate residential units during his tenancy. Specifically, respondent alleged that there are two residential units on each of the three floors of the Building. Respondent counterclaimed for a rent stabilized lease. Settlement negotiations failed and after several adjournments the trial commenced on November 6, 2019. On November 8, 2019, the second day of testimony, petitioner indicated that it had concluded its prima facie case but stopped short of resting. The parties utilized two additional court dates to again pursue settlement, to no avail. Petitioner now wishes to discontinue the proceeding with prejudice. Respondent opposes. The time for petitioner to voluntarily discontinue the proceeding without leave of court has expired. CPLR §3217(b) provides in pertinent part: (b) By Order of Court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action. ••• “While the authority of a court to grant or to deny an application made to it pursuant to CPLR 3217 (subd [b]) by a party seeking voluntarily to discontinue litigation is within its sound discretion, ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted (4 Weinstein-Korn-Miller, NY Civ Prac, par 3217.06). Particular prejudice to the defendant or other improper consequences flowing from discontinuance may however make denial of discontinuance permissible or, as the Appellate Division correctly held in this case, obligatory.” Tucker v. Tucker, 55 N.Y.2d 378, 383-84 (1982) ••• “Where the discontinuance of a claim would prejudice the rights of another party, it is within the discretion of the court to deny the application to discontinue (see Kaplan v. Village of Ossining, 35 AD3d 816, 827 NYS2d 278 [2006]; St. James Plaza v. Notey, 166 AD2d 439, 560 NYS2d 670 [1990]). Additionally, when a party moves to discontinue a claim, the court should consider the stage that the litigation has reached; the later the stage, the greater should be the court’s scrutiny of the moving party’s motives (see Tucker v. Tucker, 55 NY2d 378, 434 NE2d 1050, 449 NYS2d 683 [1982]; Kane v. Kane, 163 AD2d 568, 558 NYS2d 627 [1990]).” Phx. Mech. Corp v. London, 38 Misc. 3d 45, 46-47 (App. Term 2012) The court is also permitted to scrutinize the motive behind the application to ensure that that discontinuance is not being proposed to avoid and adverse determination by the Court or the consequences of such a determination. (see, Baez v. Parkway Mobile Homes, Inc., 125 A.D.3d 905 [App. Div. 2nd Dept. 2015]. Petitioner argues that the respondent will suffer no prejudice as it is willing to recognize him as a rent stabilized tenant. Respondent argues that this acknowledgment is not enough to insulate him from having to defend his regulatory status at a later date. Respondent further argues that the course of the litigation also justifies a denial of the motion. Respondent cites his numerous offers of settlement which were rejected by petitioner along with various adjournments that he suggests were contrived to delay the trial. Finally, the respondent asserts that petitioner is simply seeking to avoid a factual determination by the Court. A finding that the Building is de-facto rent stabilized could arguably confer rent stabilized status not only upon the respondent but on every other tenant in the Building. A consequence that would, at a minimum, redefine petitioner’s ownership obligations. The Court tends to agree with the respondent. Petitioner seeks to discontinue this proceeding with prejudice as is stated in the Order to Show Cause. While the papers make casual mention of its willingness to recognize respondent as a rent stabilized tenant Petitioner is vague on the details. Additionally, the Petitioner does not address the counterclaims asserted by the respondent, specifically the First Counterclaim. While there are instances where the courts have upheld a landlord’s ability to confer rent stabilized protections on a tenant by way of stipulation, Matter of Carrano v. Castro (see, 44 A.D.3d 1038 [App. Div. 2nd Dept. 2007]), courts have also questioned a landlord’s ability to voluntarily confer a stabilized status on a unit that is statutorily exempt (see,546 W. 156th St. HDFC v. Smalls, 43 A.D.3d 7 [App. Div. 1st Dept. 2007]). Petitioner is agreeing to confer something that respondent maintains he is entitled to by law. Petitioner has not conceded that the Building ever contained six residential units and therefore is entitled to dispute respondent’s claim. The distinction between an owner voluntarily conferring regulatory status and a tenant being rent stabilized as a matter of law can not be overlooked. Without a factual determination regarding the configuration and use of the Building, which would be explored and decided on respondent’s defenses and counterclaim, respondent cannot be secure in his Apartment’s regulatory status. While the Court cannot predict what the evidence will show, it seems reasonable, given the lengthy and contested nature of this proceeding, to allow respondent the opportunity to put the issue to rest. The Court is also mindful of the other occupants of the Building whose status would be, for better or worse, determined upon the conclusion of the trial of this matter. One such individual is presently defending a similar action in this Court. Uniform application of the law, however this Court decides, is a desired result. Accordingly, Petitioner’s motion for leave to discontinue is denied. Due to the global pandemic the next trial date for this matter will more than likely be administratively adjourned. In the event it is, the Court will contact the attorneys for both sides to schedule the next trial date as soon as possible. This constitutes the Decision and Order of the Court. Dated: April 14, 2020
