DECISION/ORDER The petition in this summary holdover proceeding alleges that the subject apartment is unregulated, and that the respondents’ month to month tenancy has been terminated by a thirty day notice. Respondent and co-tenant Serigne Lam has answered that the apartment is rent stabilized, that petitioner improperly claimed a right to deregulate it in 2009, that she has a right to a renewal lease, and that the case should therefore be dismissed. In December 2019 respondent moved for discovery, seeking documents relevant to petitioner’s claim that it was entitled to deregulate the apartment in 2009. After filing papers in opposition to the motion, petitioner elected to consent to produce the documents, in exchange for respondent’s agreement to pay use and occupancy at a compromise amount while the case was pending. This agreement was contained in a written stipulation dated January 8, 2020. Now before the court is petitioner’s motion to vacate the January 8, 2020 stipulation. Petitioner contends that the decision by the Court of Appeals in Regina Metropolitan Co, LLC v. DHCR, 2020 NY Slip Op. 02127, so profoundly changed the law applicable to respondent’s claims in the case that the stipulation to provide discovery documents was based upon “mutual mistake” and must be set aside. Respondent argues in opposition that the law applicable to this case was not changed by Regina, and that there is in any case no basis upon which to vacate the two attorney stipulation, negotiated at arm’s length and entered into voluntarily by both sides. For the reasons detailed below, petitioner’s motion is denied. In Regina Metropolitan Co. LLC v. DHCR, supra., the Court of Appeals held that the expanded statute of limitation for rent overcharges contained in the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) could not be applied retroactively to revive claims on which the previous statute of limitations had already expired before passage of the new law. However, Regina did not disturb pre HSTPA law, which provided that a court could examine any part of the rental history of an apartment in order to determine the rent regulatory status of the apartment. See East-West Renovating v. DHCR, 16 AD 3d 166 (1st Dept. 2005), Gersten v. 56 7th Avenue LLC, 88 AD 3d 189 (1st Dept. 2011), Rosa c. Koscal 59, 162 AD 3d 466 (1st Dept. 2018). In this holdover proceeding the central issue in the case is whether or not the apartment is rent regulated. Petitioner claims that it is not. Respondent claims that it is. In connection with this dispute, respondent is entitled to explore the facts surrounding petitioner’s claim that the apartment was properly deregulated in 2009. While respondent has also raised a counterclaim for rent overcharge, and while that claim may be affected by Regina, the central issue in the case is not. In any case, the court notes that the stipulation in this case was negotiated and signed by two attorneys after an arm’s length negotiation. The parties were free to chart their own course, and chose not to continue to litigate a discovery motion. It should be noted that Regina was argued in the Court of Appeals a few days before the stipulation was signed. The attorneys for these parties, both experienced landlord-tenant litigators, were surely aware of the issues on appeal and of their right to preserve the same issues for review in this case. They chose not to. Finally, it should be noted that the stipulation at issue here does not address the substantive rights of the parties. It is only an agreement about discovery. Petitioner waived no substantive issues in the stipulation, and remains free, after completion of discovery, to raise its substantive arguments at a trial or in a dispositive motion. Petitioner also seeks to substitute a different petitioner for the one that brought the case. This portion of the motion is also denied. Respondent correctly points out that this relief is available when the building has changed hands while the litigation is pending and the new purchaser wishes to pursue the litigation in the shoes of the seller. It is not available when an entity not entitled to commence a summary proceeding under RPAPL §721 has brought a proceeding without authority. The proceeding is not dismissed because although respondent asked, in his papers in opposition to petitioner’s motion, to have the case dismissed, no cross-motion for that relief was made. Petitioner is directed to comply with its obligations under the January 8, 2020 stipulation on or before October 31, 2020. The case may be restored to the court’s calendar by stipulation or by motion after discovery is complete. Dated: September 25, 2020
