Recitation, as required by CPLR §2219(a), of the papers considered in the review of petitioner’s motion for summary judgment. NYSEF Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 15-17 Opposing Affidavits (Affirmations) 29 Affidavits/ Affirmations in Reply 31 Other Papers: 18-27, 32 DECISION/ORDER Petitioner commenced this holdover proceeding pursuant to a 90 Day Notice of Termination, alleging that the subject premises is a market rent apartment removed from rent stabilization due to high-rent vacancy decontrol. Respondent, by counsel, interposed an answer, alleging improper de-regulation and rent overcharge, and noting a DHCR rent overcharge complaint has been filed by respondent and is pending determination. Respondent’s answer also broadly alleges that “respondent was improperly served with both the preliminary notice and the Petition, and therefore the Court does not have personal jurisdiction over Respondent.”1 Petitioner now moves for summary judgment, arguing that it has proven the elements of its petition, and that the proffered defenses are without merit (CPLR §3212). As discussed below, petitioner’s motion for summary judgment is denied, because respondent raises a triable issue of fact as to whether the subject apartment was properly removed from rent stabilization. Summary judgment is appropriate where the proponent has established entitlement to judgment as a matter of law, and opponent of the motion has not raised a triable issue of fact to defeat the prima facie showing (CPLR §3212; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The evidentiary proof submitted in support of motion must be proffered in admissible form sufficient to warrant the court as a matter of law to direct judgment in its favor (Rodriguez v. City of New York, 31 NY3d 312, 317 [2018] Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). The failure to make such showing requires that the motion be denied, regardless sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY 2d 320 [1986]). Petitioner’s motion for summary judgment is supported by an affidavit of personal knowledge from petitioner’s agent Bastien Broda; certified deed for the subject premises; certified multiple dwelling registration; respondent’s initial lease for the subject premises; assignment of leases and rents; subsequent respondent lease renewals; certified DHCR registration history; prior tenant leases; and rent ledgers for respondent and the prior tenant (NYSCEF Doc Nos. 18-27). Based upon the evidence presented, and the affidavits filed in the proceeding and accompanying this motion, petitioner has proven the elements of its holdover petition under RPAPL §741, and the burden shifts to respondent to raise a material issue of fact for trial. Respondent’s opposition raises the sole proposed issue of fact, alleged illegal deregulation of the unit. Respondent’s de-regulation argument is two-fold: respondent argues that 1) vacancy increases cannot be factored into the rent calculation for high-rent decontrol purposes, and, in the alternative, 2) petitioner did not provide notices to respondent as the first free market rent tenant after high-rent vacancy decontrol, in violation of, as cited by respondent, Rent Code Amendments of 2014. As to the first branch of respondent’s argument, the court finds it unavailing. A vacancy increase should be included in the calculation as to whether the legal regulated rent reached the requisite threshold for high rent vacancy deregulation under the Rent Stabilization Law (Altman v. 285 W. Fourth LLC, 31 NY3d 178, 182 [2018], reversing Altman v. 285 W. Fourth LLC, 127 AD3d 654 [1st Dept 2015]). Respondent’s opposition misstates the controlling law in its reliance on the reversed Appellate Division decision. In fact, a case cited by respondent supports the proposition that “RSL §26-504.2 (a) excludes from rent stabilization apartments that became vacant between the effective dates of the rent acts of 2011 and 2015 for which the legal rent was $2,500 or more per month as a result of statutory increases that are applied after the vacancies” (1650 Realty Assoc., LLC v. Ovadiah, 65 Misc. 3d 24, 27 [AT 2d Dept 2019]). Here, it is undisputed that the last legal regulated rent for the tenancy prior to respondent’s was at least $1,961.50.2 It is also undisputed the last rent stabilized tenant resided at the subject premises for eighteen (18 years), allowing petitioner to charge a 10.8 percent longevity increase above the allowable vacancy increases applicable during the subject vacancy period (NYC Rent Guidelines Board Order #45 Apartment and Loft Lease Renewals Commencing between October 1, 2013 and September 30, 2014). Based on the foregoing allowable increases, the rent for the subject premises did cross the high rent deregulation threshold of $2,500 during the 2014 vacancy. Respondent’s second branch of the wrongful deregulation argument, made without citation to any specific provision of the Rent Stabilization Code, proposes that petitioner failed to deregulate the subject premises because it did not provide respondent with applicable notices as the first free market rent tenant after high-rent vacancy decontrol, which, as cited by respondent in its opposition, violated the 2014 Amendments to the Rent Stabilization Code. Petitioner’s reply points out that pursuant to the DHCR Advisory Opinion 2014-1 (amended July 7, 2014), effective date for implementation of the notices was October 1, 2014, and as such petitioner was not required to furnish notices to respondent, who took possession pursuant to a January 14, 2014 lease. However, the DHCR Advisory Opinion 2014-1 is applicable only to RSC 2522.5(c)(1) and 2522.5(c)(3), and Tenant Protection Regulations Section 2502.5(c), governing applicable riders for rent stabilized renewal and vacancy leases, and does not implicate RSL §26-504.2, which governed high-rent vacancy deregulation prior to being repealed by the Housing Stability and Tenant Protection Act of 2019. Pursuant to RSL §26-504.2 (b) the owner was required to provide written notice to the initial tenant following high-rent vacancy deregulation, setting forth the last regulated rent, the reason for deregulation, a calculation of how the rent reached the deregulation threshold, a statement that the last legal regulated rent or the maximum rent may be verified by the tenant by contacting DHCR, and its telephone number. Such notice was required to be sent by certified mail within thirty days after the tenancy commenced, or after the signing of the lease by both parties, whichever occurred first, or was to be delivered to the tenant at the signing of the lease. In addition, the owner was mandated to send to the tenant a copy of the registration statement filed with DHCR indicating that the apartment became exempt from rent stabilization, including the last regulated rent, within thirty days after commencement of the tenancy or the filing of such registration, whichever occurred later. The landlord’s failure to comply with this requirement is potentially fatal to its deregulation claim (See Matter of AEJ 534 E. 88th, LLC v. New York State Div. of Hous. & Community Renewal, 194 A.D.3d 464, 471 [1st Dept 2021], holding that “high-rent vacancy increase of an apartment was never automatic,” the RSL §26-504.2 notice requirements constituting an important element of the owner’s deregulation claim). Here, the initial lease for respondent produced by petitioner is not accompanied by notices that were required under RSL §26-504.2 (b), though that in itself is not dispositive of whether such notices were provided (NYSCEF Doc No. 20). Though respondent’s opposition to summary judgment does not specifically cite to RSL §26-504.2, it does raise the issue of petitioner’s alleged failure to provide requisite notices to respondent as the first post-high-rent deregulation tenant, and the import of such omission, if any, on the instant proceeding. Accordingly, there exists an issue of fact for trial, and the motion is denied, without prejudice to petitioner’s monetary claims (RPAPL §745(2)). The proceeding is adjourned for a pre-trial conference on October 29, 2024, at 9:30 A.M., in Part C, Room 823. This constitutes the decision and order of the court. Dated: September 24, 2023
